SUBCHAPTER XI—GENERAL PROVISIONS, PEER REVIEW, AND ADMINISTRATIVE SIMPLIFICATION
Part A—General Provisions
§1301. Definitions
(a) When used in this chapter—
(1) The term "State", except where otherwise provided, includes the District of Columbia and the Commonwealth of Puerto Rico, and when used in subchapters IV, V, VII, XI, XIX, and XXI includes the Virgin Islands and Guam. Such term when used in subchapters III, IX, and XII also includes the Virgin Islands. Such term when used in subchapter V and in part B of this subchapter also includes American Samoa, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands. Such term when used in subchapters XIX and XXI also includes the Northern Mariana Islands and American Samoa. In the case of Puerto Rico, the Virgin Islands, and Guam, subchapters I, X, and XIV, and subchapter XVI (as in effect without regard to the amendment made by section 301 of the Social Security Amendments of 1972) shall continue to apply, and the term "State" when used in such subchapters (but not in subchapter XVI as in effect pursuant to such amendment after December 31, 1973) includes Puerto Rico, the Virgin Islands, and Guam. Such term when used in subchapter XX also includes the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. Such term when used in subchapter IV also includes American Samoa.
(2) The term "United States" when used in a geographical sense means, except where otherwise provided, the States.
(3) The term "person" means an individual, a trust or estate, a partnership, or a corporation.
(4) The term "corporation" includes associations, joint-stock companies, and insurance companies.
(5) The term "shareholder" includes a member in an association, joint-stock company, or insurance company.
(6) The term "Secretary", except when the context otherwise requires, means the Secretary of Health and Human Services.
(7) The terms "physician" and "medical care" and "hospitalization" include osteopathic practitioners or the services of osteopathic practitioners and hospitals within the scope of their practice as defined by State law.
(8)(A) The "Federal percentage" for any State (other than Puerto Rico, the Virgin Islands, and Guam) shall be 100 per centum less the State percentage; and the State percentage shall be that percentage which bears the same ratio to 50 per centum as the square of the per capita income of such State bears to the square of the per capita income of the United States; except that the Federal percentage shall in no case be less than 50 per centum or more than 65 per centum.
(B) The Federal percentage for each State (other than Puerto Rico, the Virgin Islands, and Guam) shall be promulgated by the Secretary between October 1 and November 30 of each year, on the basis of the average per capita income of each State and of the United States for the three most recent calendar years for which satisfactory data are available from the Department of Commerce. Such promulgation shall be conclusive for each of the four quarters in the period beginning October 1 next succeeding such promulgation: Provided, That the Secretary shall promulgate such percentages as soon as possible after August 28, 1958, which promulgation shall be conclusive for each of the eleven quarters in the period beginning October 1, 1958, and ending with the close of June 30, 1961.
(C) The term "United States" means (but only for purposes of subparagraphs (A) and (B) of this paragraph) the fifty States and the District of Columbia.
(D) Promulgations made before satisfactory data are available from the Department of Commerce for a full year on the per capita income of Alaska shall prescribe a Federal percentage for Alaska of 50 per centum and, for purposes of such promulgations, Alaska shall not be included as part of the "United States". Promulgations made thereafter but before per capita income data for Alaska for a full three-year period are available from the Department of Commerce shall be based on satisfactory data available therefrom for Alaska for such one full year or, when such data are available for a two-year period, for such two years.
(9) The term "shared health facility" means any arrangement whereby—
(A) two or more health care practitioners practice their professions at a common physical location;
(B) such practitioners share (i) common waiting areas, examining rooms, treatment rooms, or other space, (ii) the services of supporting staff, or (iii) equipment;
(C) such practitioners have a person (who may himself be a practitioner)—
(i) who is in charge of, controls, manages, or supervises substantial aspects of the arrangement or operation for the delivery of health or medical services at such common physical location, other than the direct furnishing of professional health care services by the practitioners to their patients; or
(ii) who makes available to such practitioners the services of supporting staff who are not employees of such practitioners;
and who is compensated in whole or in part, for the use of such common physical location or support services pertaining thereto, on a basis related to amounts charged or collected for the services rendered or ordered at such location or on any basis clearly unrelated to the value of the services provided by the person; and
(D) at least one of such practitioners received payments on a fee-for-service basis under subchapters XVIII and XIX in an amount exceeding $5,000 for any one month during the preceding 12 months or in an aggregate amount exceeding $40,000 during the preceding 12 months;
except that such term does not include a provider of services (as defined in
(10) The term "Administration" means the Social Security Administration, except where the context requires otherwise.
(b) The terms "includes" and "including" when used in a definition contained in this chapter shall not be deemed to exclude other things otherwise within the meaning of the term defined.
(c) Whenever under this chapter or any Act of Congress, or under the law of any State, an employer is required or permitted to deduct any amount from the remuneration of an employee and to pay the amount deducted to the United States, a State, or any political subdivision thereof, then for the purposes of this chapter the amount so deducted shall be considered to have been paid to the employee at the time of such deduction.
(d) Nothing in this chapter shall be construed as authorizing any Federal official, agent, or representative, in carrying out any of the provisions of this chapter, to take charge of any child over the objection of either of the parents of such child, or of the person standing in loco parentis to such child.
(Aug. 14, 1935, ch. 531, title XI, §1101,
Editorial Notes
References in Text
Section 301 of the Social Security Amendments of 1972, referred to in subsec. (a)(1), is section 301 of
The Internal Revenue Code of 1986, referred to in subsec. (a)(9), is classified generally to Title 26, Internal Revenue Code.
Amendments
1997—Subsec. (a)(1).
1994—Subsec. (a)(10).
1988—Subsec. (a)(1).
1987—Subsec. (a)(1).
1986—Subsec. (a)(3) to (5).
Subsec. (a)(8)(B).
Subsec. (a)(9).
1984—Subsec. (a)(6).
Subsec. (a)(8), (9).
1982—Subsec. (a)(1).
1981—Subsec. (a)(1).
Subsec. (a)(9)(D).
1977—Subsec. (a)(1).
Subsec. (a)(9).
1976—Subsec. (a)(1).
Subsec. (a)(8)(B).
1973—Subsec. (a)(1).
1972—Subsec. (a)(1).
1965—Subsec. (a)(1).
1962—Subsec. (a)(1).
Subsec. (a)(2).
1960—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(8)(A).
Subsec. (a)(8)(B).
Subsec. (a)(8)(C), (D).
1959—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(8).
1958—Subsec. (a)(1).
Subsec. (a)(8).
1956—Subsec. (a)(1). Act Aug. 1, 1956, inserted reference to subchapter VII of this chapter.
1950—Subsec. (a)(1). Act Aug. 28, 1950, §403(a)(1), redefined "State".
Subsec. (a)(6). Act Aug. 28, 1950, §403(a)(2), defined "Administrator".
Subsec. (a)(7). Act Aug. 28, 1950, §403(b), added par. (7).
1948—Subsec. (a)(6). Act June 14, 1948, provided for application of usual common-law rules in determining whether a person is an employee.
1946—Subsec. (a)(1). Act Aug. 10, 1946, struck out exception of
1939—Subsec. (a)(1). Act Aug. 10, 1939, redefined "State".
Statutory Notes and Related Subsidiaries
Change of Name
"Secretary of Health and Human Services" substituted for "Secretary of Health, Education, and Welfare" in subsec. (a)(6) and (8)(B) pursuant to section 509(b) of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1988 Amendment
Effective Date of 1987 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 1883(c)(1) of
Amendment by section 1895(c)(6) of
"(b)
"(c)
[
[
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1982 Amendment
Effective Date of 1981 Amendment
Amendment by section 2352(a) of
For effective date, savings, and transitional provisions relating to amendment by section 2193(c)(2) of
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1973 Amendment
Effective Date of 1972 Amendment
Effective Date of 1965 Amendment
Effective Date of 1960 Amendment
Amendment by section 30(d) of
Amendment by section 30(a)(1) of
Effective Date of 1959 Amendment
Amendment by section 32(a) of
Effective Date of 1958 Amendment
For effective date of amendments by
Effective Date of 1950 Amendment
Act Aug. 28, 1950, ch. 809, title IV, §403(a)(3),
Act Aug. 28, 1950, ch. 809, title IV, §403(b),
Effective Date of 1948 Amendment
Act June 14, 1948, ch. 468, §2(b),
Effective Date of 1946 Amendment
Act Aug. 10, 1946, ch. 951, title IV, §401(a),
Effective Date of 1939 Amendment
Act Aug. 10, 1939, ch. 666, title VIII, §801,
Repeals
The provisions of subsecs. (a)(1), (3), (6), (c) of this section were incorporated into sections 1426(d) to (f), 1427, 1607(i) to (k), and 1608 of former Title 26, Internal Revenue Code of 1939, by act Feb. 10, 1939, ch. 2,
Provisions of the Internal Revenue Code of 1939 were generally repealed by
Provisions Relating to Federal Security Administrator
"(1) by substituting 'Secretary' or 'Secretary's' for the term 'Administrator' or 'Administrator's', where the reference is to that term alone;
"(2) by substituting 'Secretary of Health, Education, and Welfare' for the term 'Federal Security Administrator', where the reference is to that term, if the provision containing such reference is amended by paragraph (2) or (3) of subsection (j) [
"(3) by substituting 'Secretary of Health and Human Services' for the term 'Federal Security Administrator' in any other case where the reference is to that term;
and any reference to the Federal Security Agency which may remain in such provisions is amended by substituting 'Department of Health and Human Services' for the term 'Federal Security Agency'; but nothing in this subsection shall affect the exercise under section 402(a)(5) of such Act [
Definitions of "BIPA" and "Secretary"
"In this Act [see Short Title of 2003 Amendments note set out under
"(1) BIPA.—The term 'BIPA' means the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, as enacted into law by section 1(a)(6) of
"(2)
Definition of "Secretary"
Act Aug. 1, 1956, ch. 836, title I, §119,
Act Sept. 1, 1954, ch. 1206, title I, §114,
Executive Documents
Transfer of Functions
Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare and all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by section 5 of Reorg. Plan No. 1 of 1953, set out as a note under
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§1301–1. Omitted
Editorial Notes
Codification
Section, act Aug. 10, 1946, ch. 951, title II, §202,
§1301a. Omitted
Editorial Notes
Codification
Section, act June 26, 1940, ch. 428, title II,
§1302. Rules and regulations; impact analyses of Medicare and Medicaid rules and regulations on small rural hospitals
(a) The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services, respectively, shall make and publish such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which each is charged under this chapter.
(b)(1) Whenever the Secretary publishes a general notice of proposed rulemaking for any rule or regulation proposed under subchapter XVIII, subchapter XIX, or part B of this subchapter that may have a significant impact on the operations of a substantial number of small rural hospitals, the Secretary shall prepare and make available for public comment an initial regulatory impact analysis. Such analysis shall describe the impact of the proposed rule or regulation on such hospitals and shall set forth, with respect to small rural hospitals, the matters required under
(2) Whenever the Secretary promulgates a final version of a rule or regulation with respect to which an initial regulatory impact analysis is required by paragraph (1), the Secretary shall prepare a final regulatory impact analysis with respect to the final version of such rule or regulation. Such analysis shall set forth, with respect to small rural hospitals, the matters required under
(3) If a regulatory flexibility analysis is required by
(Aug. 14, 1935, ch. 531, title XI, §1102,
Editorial Notes
Amendments
1987—
1984—
1950—Act Aug. 28, 1950, substituted "Federal Security Administrator" for "Social Security Board".
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Effective Date of 1984 Amendment
Amendment by
Repeals
The provisions of this section were incorporated into sections 1429 and 1609 of former Title 26, Internal Revenue Code of 1939, by act Feb. 10, 1939, ch. 2,
Abortion Services; Prohibition on Certain Policy Changes
Notice on Social Security Checks
"(a) The Secretary of the Treasury shall take such steps as may be necessary to provide that all checks issued for payment of benefits under title II of the Social Security Act [
"(b) Subsection (a) shall apply with respect to checks issued for months after the ninth month after the date of the enactment of this Act [Oct. 12, 1984]."
§1303. Separability
If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.
(Aug. 14, 1935, ch. 531, title XI, §1103,
Statutory Notes and Related Subsidiaries
Separability
§1304. Reservation of right to amend or repeal
The right to alter, amend, or repeal any provision of this chapter is hereby reserved to the Congress.
(Aug. 14, 1935, ch. 531, title XI, §1104,
§1305. Short title of chapter
This chapter may be cited as the "Social Security Act".
(Aug. 14, 1935, ch. 531, title XI, §1105,
Statutory Notes and Related Subsidiaries
Short Title of 2023 Amendment
Short Title of 2022 Amendment
Short Title of 2021 Amendment
Short Title of 2020 Amendment
Short Title of 2019 Amendment
Short Title of 2018 Amendment
Short Title of 2017 Amendment
Short Title of 2016 Amendment
Short Title of 2015 Amendment
Short Title of 2014 Amendment
Short Title of 2013 Amendment
Short Title of 2012 Amendment
Short Title of 2011 Amendment
Short Title of 2010 Amendment
[Section 3(e) of
Short Title of 2009 Amendment
Short Title of 2008 Amendment
Short Title of 2007 Amendment
Short Title of 2006 Amendment
Short Title of 2005 Amendments
Short Title of 2004 Amendments
Short Title of 2003 Amendments
Short Title of 2002 Amendments
Short Title of 2001 Amendment
Short Title of 2000 Amendments
Short Title of 1999 Amendments
Short Title of 1998 Amendments
Short Title of 1997 Amendment
Short Title of 1996 Amendments
Short Title of 1994 Amendments
Short Title of 1991 Amendment
Short Title of 1989 Amendments
Short Title of 1988 Amendments
Short Title of 1987 Amendment
Short Title of 1986 Amendments
Short Title of 1984 Amendments
Short Title of 1983 Amendment
Short Title of 1982 Amendment
Short Title of 1981 Amendment
Short Title of 1980 Amendments
Short Title of 1977 Amendments
Short Title of 1976 Amendment
Short Title of 1975 Amendment
Short Title of 1972 Amendment
Short Title of 1969 Amendment
Short Title of 1968 Amendment
Short Title of 1965 Amendment
Short Title of 1963 Amendment
Short Title of 1962 Amendment
Short Title of 1961 Amendment
Short Title of 1960 Amendment
Short Title of 1958 Amendment
Short Title of 1956 Amendment
Act Aug. 1, 1956, ch. 836, §1,
Short Title of 1954 Amendment
Act Aug. 5, 1954, ch. 657, §1,
Short Title of 1952 Amendment
Act July 18, 1952, ch. 945, §1,
Short Title of 1950 Amendment
Act Aug. 28, 1950, ch. 809, §1,
§1306. Disclosure of information in possession of Social Security Administration or Department of Health and Human Services
(a) Disclosure prohibited; exceptions
(1) No disclosure of any return or portion of a return (including information returns and other written statements) filed with the Commissioner of Internal Revenue under title VIII of the Social Security Act or under subchapter E of
(2) For purposes of this subsection and subsection (b), the term "applicable agency" means—
(A) the Social Security Administration, with respect to matter transmitted to or obtained by such Administration or matter disclosed by such Administration, or
(B) the Department of Health and Human Services, with respect to matter transmitted to or obtained by such Department or matter disclosed by such Department.
(b) Requests for information and services
Requests for information, disclosure of which is authorized by regulations prescribed pursuant to subsection (a) of this section, and requests for services, may, subject to such limitations as may be prescribed by the head of the applicable agency to avoid undue interference with his functions under this chapter, be complied with if the agency, person, or organization making the request agrees to pay for the information or services requested in such amount, if any (not exceeding the cost of furnishing the information or services), as may be determined by the head of the applicable agency. Payments for information or services furnished pursuant to this section shall be made in advance or by way of reimbursement, as may be requested by the head of the applicable agency, and shall be deposited in the Treasury as a special deposit to be used to reimburse the appropriations (including authorizations to make expenditures from the Federal Old-Age and Survivors Insurance Trust Fund, the Federal Disability Insurance Trust Fund, the Federal Hospital Insurance Trust Fund, and the Federal Supplementary Medical Insurance Trust Fund) for the unit or units of the applicable agency which furnished the information or services. Notwithstanding the preceding provisions of this subsection, requests for information made pursuant to the provisions of part D of subchapter IV of this chapter for the purpose of using Federal records for locating parents shall be complied with and the cost incurred in providing such information shall be paid for as provided in such part D of subchapter IV.
(c) Cost reimbursement
Notwithstanding
(d) Compliance with requests
Notwithstanding any other provision of this section, in any case in which—
(1) information regarding whether an individual is shown on the records of the Commissioner of Social Security as being alive or deceased is requested from the Commissioner for purposes of epidemiological or similar research which the Commissioner in consultation with the Secretary of Health and Human Services finds may reasonably be expected to contribute to a national health interest, and
(2) the requester agrees to reimburse the Commissioner for providing such information and to comply with limitations on safeguarding and rerelease or redisclosure of such information as may be specified by the Commissioner,
the Commissioner shall comply with such request, except to the extent that compliance with such request would constitute a violation of the terms of any contract entered into under
(e) Public inspection
Notwithstanding any other provision of this section the Secretary shall make available to each State agency operating a program under subchapter XIX and shall, subject to the limitations contained in subsection (e),1 make available for public inspection in readily accessible form and fashion, the following official reports (not including, however, references to any internal tolerance rules and practices that may be contained therein, internal working papers or other informal memoranda) dealing with the operation of the health programs established by subchapters XVIII and XIX—
(1) individual contractor performance reviews and other formal evaluations of the performance of carriers, intermediaries, and State agencies, including the reports of follow-up reviews;
(2) comparative evaluations of the performance of such contractors, including comparisons of either overall performance or of any particular aspect of contractor operation; and
(3) program validation survey reports and other formal evaluations of the performance of providers of services, including the reports of follow-up reviews, except that such reports shall not identify individual patients, individual health care practitioners, or other individuals.
(f) Opportunity for review
No report described in subsection (e) shall be made public by the Secretary or the State subchapter XIX agency until the contractor or provider of services whose performance is being evaluated has had a reasonable opportunity (not exceeding 60 days) to review such report and to offer comments pertinent parts of which may be incorporated in the public report; nor shall the Secretary be required to include in any such report information with respect to any deficiency (or improper practice or procedures) which is known by the Secretary to have been fully corrected, within 60 days of the date such deficiency was first brought to the attention of such contractor or provider of services, as the case may be.
(g) Agreement with Secretary of the Treasury
Notwithstanding any other provision of this section, the Commissioner of Social Security shall enter into an agreement with the Secretary of the Treasury under which—
(1) if the Secretary provides the Commissioner with the information described in section 6103(k)(15) of the Internal Revenue Code of 1986 with respect to any individual, the Commissioner shall indicate to the Secretary as to whether such individual receives disability insurance benefits under
(2) appropriate safeguards are included to assure that the indication described in paragraph (1) will be used solely for the purpose of determining if tax receivables involving such individual are not eligible for collection pursuant to a qualified tax collection contract by reason of section 6306(d)(3)(E) of the Internal Revenue Code of 1986; and
(3) the Secretary shall pay the Commissioner of Social Security the full costs (including systems and administrative costs) of providing the indication described in paragraph (1).
(Aug. 14, 1935, ch. 531, title XI, §1106, as added Aug. 10, 1939, ch. 666, title VIII, §802,
Editorial Notes
References in Text
Title VIII of the Social Security Act, referred to in subsec. (a)(1), probably refers to former title VIII of the Act, which was classified to subchapter VIII (§1001 et seq.) of this chapter prior to its omission from the Code as superseded by the provisions of the Internal Revenue Code of 1939 and the Internal Revenue Code of 1986.
Subchapter E of
For provision deeming a reference in other laws to a provision of the 1939 Code as a reference to the corresponding provisions of the 1986 Code, see section 7852(b) of the 1986 Code. For table of comparisons of the 1939 Code to the 1986 Code, see table preceding
Sections 6103(k)(15) and 6306(d)(3)(E) of the Internal Revenue Code of 1986, referred to in subsec. (g)(1) and (2), are classified to sections 6103(k)(15) and 6306(d)(3)(E), respectively, of Title 26, Internal Revenue Code.
Amendments
2020—Subsec. (g).
1994—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1984—Subsec. (a).
Subsec. (b).
1981—Subsec. (a).
Subsec. (c).
1975—Subsec. (a).
Subsec. (b).
Subsec. (c).
1972—Subsecs. (d), (e).
1968—Subsec. (c)(1).
Subsec. (c)(1)(A), (B).
Subsec. (c)(2).
Subsec. (c)(3).
1965—Subsec. (b).
Subsec. (c).
1958—Subsec. (b).
1950—Act Aug. 28, 1950, amended section generally, designating existing provisions as subsec. (a), substituting "under subchapter E of
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
Amendment by
Effective Date of 1994 Amendment
Amendment by section 108(b)(2)–(5) of
Amendment by section 311(a) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1975 Amendment
Amendment by
Effective Date of 1972 Amendment
1 So in original. Probably should be subsection "(f),".
§1306a. Public access to State disbursement records
No State or any agency or political subdivision thereof shall be deprived of any grant-in-aid or other payment to which it otherwise is or has become entitled pursuant to subchapter I (other than section 303(a)(3) thereof), IV, X, XIV, or XVI (other than section 1383(a)(3) thereof) of this chapter, by reason of the enactment or enforcement by such State of any legislation prescribing any conditions under which public access may be had to records of the disbursement of any such funds or payments within such State, if such legislation prohibits the use of any list or names obtained through such access to such records for commercial or political purposes.
(Oct. 20, 1951, ch. 521, title VI, §618,
Editorial Notes
References in Text
Section 303(a)(3), referred to in text, was repealed by
Section 1383(a)(3), referred to in text, was in the original a reference to section 1603(a)(3) of the Social Security Act as added July 25, 1962,
Codification
Section was enacted as part of act Oct. 20, 1951, popularly known as the Revenue Act of 1951, and not as part of the Social Security Act which comprises this chapter.
Amendments
1962—
1960—
Statutory Notes and Related Subsidiaries
Effective Date of 1960 Amendment
§1306b. State data exchanges
Whenever the Commissioner of Social Security requests information from a State for the purpose of ascertaining an individual's eligibility for benefits (or the correct amount of such benefits) under subchapter II or XVI of this chapter, the standards of the Commissioner promulgated pursuant to
(
Editorial Notes
Codification
Section was enacted as part of the Foster Care Independence Act of 1999, and not as part of the Social Security Act which comprises this chapter.
§1306c. Restriction on access to the Death Master File
(a) In general
The Secretary of Commerce shall not disclose to any person information contained on the Death Master File with respect to any deceased individual at any time during the 3-calendar-year period beginning on the date of the individual's death, unless such person is certified under the program established under subsection (b).
(b) Certification program
(1) In general
The Secretary of Commerce shall establish a program—
(A) to certify persons who are eligible to access the information described in subsection (a) contained on the Death Master File, and
(B) to perform periodic and unscheduled audits of certified persons to determine the compliance by such certified persons with the requirements of the program.
(2) Certification
A person shall not be certified under the program established under paragraph (1) unless such person certifies that access to the information described in subsection (a) is appropriate because such person—
(A) has—
(i) a legitimate fraud prevention interest, or
(ii) a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty, and
(B) has systems, facilities, and procedures in place to safeguard such information, and experience in maintaining the confidentiality, security, and appropriate use of such information, pursuant to requirements similar to the requirements of section 6103(p)(4) of the Internal Revenue Code of 1986, and
(C) agrees to satisfy the requirements of such section 6103(p)(4) as if such section applied to such person.
(3) Fees
(A) In general
The Secretary of Commerce shall establish under
(B) Report
The Secretary of Commerce shall report on an annual basis to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives on the total fees collected during the preceding year and the cost of administering the certification program under this subsection for such year.
(c) Imposition of penalty
(1) In general
Any person who is certified under the program established under subsection (b), who receives information described in subsection (a), and who during the period of time described in subsection (a)—
(A) discloses such information to any person other than a person who meets the requirements of subparagraphs (A), (B), and (C) of subsection (b)(2),
(B) discloses such information to any person who uses the information for any purpose not listed under subsection (b)(2)(A) or who further discloses the information to a person who does not meet such requirements, or
(C) uses any such information for any purpose not listed under subsection (b)(2)(A),
and any person to whom such information is disclosed who further discloses or uses such information as described in the preceding subparagraphs, shall pay a penalty of $1,000 for each such disclosure or use.
(2) Limitation on penalty
(A) In general
The total amount of the penalty imposed under this subsection on any person for any calendar year shall not exceed $250,000.
(B) Exception for willful violations
Subparagraph (A) shall not apply in the case of violations under paragraph (1) that the Secretary of Commerce determines to be willful or intentional violations.
(d) Death Master File
For purposes of this section, the term "Death Master File" means information on the name, social security account number, date of birth, and date of death of deceased individuals maintained by the Commissioner of Social Security, other than information that was provided to such Commissioner under
(e) Exemption from Freedom of Information Act requirement with respect to certain records of deceased individuals
(1) In general
No Federal agency shall be compelled to disclose the information described in subsection (a) to any person who is not certified under the program established under subsection (b).
(2) Treatment of information
For purposes of
(f) Effective date
(1) In general
Except as provided in paragraph (2), this section shall take effect on the date that is 90 days after December 26, 2013.
(2) FOIA exemption
Subsection (e) shall take effect on December 26, 2013.
(
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsec. (b)(2)(B), is classified generally to Title 26, Internal Revenue Code.
Codification
Section was enacted as part of the Bipartisan Budget Act of 2013, and not as part of the Social Security Act which comprises this chapter.
§1307. Penalty for fraud
(a) Whoever, with the intent to defraud any person, shall make or cause to be made any false representation concerning the requirements of this chapter, of
(b) Whoever, with the intent to elicit information as to the social security account number, date of birth, employment, wages, or benefits of any individual (1) falsely represents to the Commissioner of Social Security or the Secretary that he is such individual, or the wife, husband, widow, widower, divorced wife, divorced husband, surviving divorced wife, surviving divorced husband, surviving divorced mother, surviving divorced father, child, or parent of such individual, or the duly authorized agent of such individual, or of the wife, husband, widow, widower, divorced wife, divorced husband, surviving divorced wife, surviving divorced husband, surviving divorced mother, surviving divorced father, child, or parent of such individual, or (2) falsely represents to any person that he is an employee or agent of the United States, shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by a fine not exceeding $10,000 for each occurrence of a violation, or by imprisonment not exceeding 5 years, or both.
(Aug. 14, 1935, ch. 531, title XI, §1107, as added Aug. 10, 1939, ch. 666, title VIII, §802,
Editorial Notes
References in Text
Subchapter E of
For provision deeming a reference in other laws to a provision of the 1939 Code as a reference to the corresponding provisions of the 1986 Code, see section 7852(b) of the 1986 Code. For table of comparisons of the 1939 Code to the 1986 Code, see table preceding
Amendments
1994—Subsec. (b).
1986—Subsec. (a).
1984—Subsec. (a).
Subsec. (b).
1950—Subsec. (a). Act Aug. 28, 1950, §403(e), substituted "subchapter E of
Subsec. (b). Act Aug. 28, 1950, §403(f), substituted "Administrator" for "Board" and "wife, husband, widow, widower, former wife divorced, child, or parent" for "wife, parent, or child" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by section 108(b)(6) of
Amendment by section 313(b) of
Effective Date of 1984 Amendment
Amendment by section 2663(e)(3), (j)(2)(D)(iii), (l)(1) of
§1308. Additional grants to Puerto Rico, Virgin Islands, Guam, and American Samoa; limitation on total payments
(a) Limitation on total payments to each territory
(1) In general
Notwithstanding any other provision of this chapter (except for paragraph (2) of this subsection), the total amount certified by the Secretary of Health and Human Services under subchapters I, X, XIV, and XVI, under parts A and E of subchapter IV, and under subsection (b) of this section, for payment to any territory for a fiscal year shall not exceed the ceiling amount for the territory for the fiscal year.
(2) Certain payments disregarded
Paragraph (1) of this subsection shall be applied without regard to any payment made under
(b) Entitlement to matching grant
(1) In general
Each territory shall be entitled to receive from the Secretary for each fiscal year a grant in an amount equal to 75 percent of the amount (if any) by which—
(A) the total expenditures of the territory during the fiscal year under the territory programs funded under parts A and E of subchapter IV, including any amount paid to the State under part A of subchapter IV that is transferred in accordance with
(B) the sum of—
(i) the amount of the family assistance grant payable to the territory without regard to
(ii) the total amount expended by the territory during fiscal year 1995 pursuant to parts A and F of subchapter IV (as so in effect), other than for child care.
(2) Appropriation
Out of any money in the Treasury of the United States not otherwise appropriated, there are appropriated for each of fiscal years 2017 and 2018, such sums as are necessary for grants under this paragraph.
(c) Definitions
As used in this section:
(1) Territory
The term "territory" means Puerto Rico, the Virgin Islands, Guam, and American Samoa.
(2) Ceiling amount
The term "ceiling amount" means, with respect to a territory and a fiscal year, the mandatory ceiling amount with respect to the territory, reduced for the fiscal year in accordance with subsection (e),1 and reduced by the amount of any penalty imposed on the territory under any provision of law specified in subsection (a) during the fiscal year.
(3) Family assistance grant
The term "family assistance grant" has the meaning given such term by
(4) Mandatory ceiling amount
The term "mandatory ceiling amount" means—
(A) $107,255,000 with respect to Puerto Rico;
(B) $4,686,000 with respect to Guam;
(C) $3,554,000 with respect to the Virgin Islands; and
(D) $1,000,000 with respect to American Samoa.
(5) Total amount expended by the territory
The term "total amount expended by the territory"—
(A) does not include expenditures during the fiscal year from amounts made available by the Federal Government; and
(B) when used with respect to fiscal year 1995, also does not include—
(i) expenditures during fiscal year 1995 under subsection (g) or (i) of
(ii) any expenditures during fiscal year 1995 for which the territory (but for this section, as in effect on September 30, 1995) would have received reimbursement from the Federal Government.
(d) Authority to transfer funds to certain programs
A territory to which an amount is paid under subsection (b) of this section may use the amount in accordance with
(e) Repealed. Pub. L. 105–33, title V, §5512(c), Aug. 5, 1997, 111 Stat. 619
(f) Total amount certified under subchapter XIX
Subject to subsections (g) and (h) and
(1) Puerto Rico shall not exceed (A) $116,500,000 for fiscal year 1994 and (B) for each succeeding fiscal year the amount provided in this paragraph for the preceding fiscal year increased by the percentage increase in the medical care component of the consumer price index for all urban consumers (as published by the Bureau of Labor Statistics) for the twelve-month period ending in March preceding the beginning of the fiscal year, rounded to the nearest $100,000;
(2) the Virgin Islands shall not exceed (A) $3,837,500 for fiscal year 1994, and (B) for each succeeding fiscal year the amount provided in this paragraph for the preceding fiscal year increased by the percentage increase referred to in paragraph (1)(B), rounded to the nearest $10,000;
(3) Guam shall not exceed (A) $3,685,000 for fiscal year 1994, and (B) for each succeeding fiscal year the amount provided in this paragraph for the preceding fiscal year increased by the percentage increase referred to in paragraph (1)(B), rounded to the nearest $10,000;
(4) Northern Mariana Islands shall not exceed (A) $1,110,000 for fiscal year 1994, and (B) for each succeeding fiscal year the amount provided in this paragraph for the preceding fiscal year increased by the percentage increase referred to in paragraph (1)(B), rounded to the nearest $10,000; and
(5) American Samoa shall not exceed (A) $2,140,000 for fiscal year 1994, and (B) for each succeeding fiscal year the amount provided in this paragraph for the preceding fiscal year increased by the percentage increase referred to in paragraph (1)(B), rounded to the nearest $10,000.
(g) Medicaid payments to territories for fiscal year 1998 and thereafter
(1) Fiscal year 1998
With respect to fiscal year 1998, the amounts otherwise determined for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa under subsection (f) for such fiscal year shall be increased by the following amounts:
(A) For Puerto Rico, $30,000,000.
(B) For the Virgin Islands, $750,000.
(C) For Guam, $750,000.
(D) For the Northern Mariana Islands, $500,000.
(E) For American Samoa, $500,000.
(2) Fiscal year 1999 and thereafter
Notwithstanding subsection (f) and subject to
(A) Puerto Rico shall not exceed—
(i) except as provided in clause (ii) or (iii), the sum of the amount provided in this subsection for the preceding fiscal year increased by the percentage increase in the medical care component of the Consumer Price Index for all urban consumers (as published by the Bureau of Labor Statistics) for the 12-month period ending in March preceding the beginning of the fiscal year, rounded to the nearest $100,000;
(ii) for each of fiscal years 2020 through 2021, the amount specified in paragraph (6) for each such fiscal year; and
(iii) for fiscal year 2023 and each subsequent fiscal year, the amount specified in paragraph (11) for such fiscal year;
(B) the Virgin Islands shall not exceed—
(i) except as provided in clause (ii), the sum of the amount provided in this subsection for the preceding fiscal year increased by the percentage increase referred to in subparagraph (A), rounded to the nearest $10,000;
(ii) for fiscal year 2020, $128,712,500; and
(iii) for fiscal year 2021, $127,937,500;
(C) Guam shall not exceed—
(i) except as provided in clause (ii), the sum of the amount provided in this subsection for the preceding fiscal year increased by the percentage increase referred to in subparagraph (A), rounded to the nearest $10,000;
(ii) for fiscal year 2020, $130,875,000; and
(iii) for fiscal year 2021, $129,712,500;
(D) the Northern Mariana Islands shall not exceed—
(i) except as provided in clause (ii), the sum of the amount provided in this subsection for the preceding fiscal year increased by the percentage increase referred to in subparagraph (A), rounded to the nearest $10,000;
(ii) for fiscal year 2020, $63,100,000; and
(iii) for fiscal year 2021, $62,325,000; and
(E) American Samoa shall not exceed—
(i) except as provided in clause (ii), the sum of the amount provided in this subsection for the preceding fiscal year increased by the percentage increase referred to in subparagraph (A), rounded to the nearest $10,000;
(ii) for fiscal year 2020, $86,325,000; and
(iii) for fiscal year 2021, $85,550,000.
For fiscal year 2022 (and, in the case of a territory other than Puerto Rico, for each subsequent fiscal year), the total amount certified for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa under subsection (f) and this subsection for the fiscal year shall be determined as if the preceding subparagraphs were applied to each of fiscal years 2020 through 2021 without regard to clause (ii) of each such subparagraph.
(3) Fiscal years 2006 and 2007 for certain insular areas
The amounts otherwise determined under this subsection for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa for fiscal year 2006 and fiscal year 2007 shall be increased by the following amounts:
(A) For Puerto Rico, $12,000,000 for fiscal year 2006 and $12,000,000 for fiscal year 2007.
(B) For the Virgin Islands, $2,500,000 for fiscal year 2006 and $5,000,000 for fiscal year 2007.
(C) For Guam, $2,500,000 for fiscal year 2006 and $5,000,000 for fiscal year 2007.
(D) For the Northern Mariana Islands, $1,000,000 for fiscal year 2006 and $2,000,000 for fiscal year 2007.
(E) For American Samoa, $2,000,000 for fiscal year 2006 and $4,000,000 for fiscal year 2007.
Such amounts shall not be taken into account in applying paragraph (2) for fiscal year 2007 but shall be taken into account in applying such paragraph for fiscal year 2008 and subsequent fiscal years.
(4) Exclusion of certain expenditures from payment limits
(A) In general
With respect to fiscal years beginning with fiscal year 2009, if Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, or American Samoa qualify for a payment under subparagraph (A)(i), (B), or (F) of
(B) Additional exemption
Payments under
(5) Additional increase
(A) Subject to subparagraphs (B), (C), (D), (E), and (F), the Secretary shall increase the amounts otherwise determined under this subsection for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa (after the application of subsection (f) and the preceding paragraphs of this subsection) for the period beginning July 1, 2011, and ending on September 30, 2019, by such amounts that the total additional payments under subchapter XIX to such territories equals $6,300,000,000 for such period. The Secretary shall increase such amounts in proportion to the amounts applicable to such territories under this subsection and subsection (f) on March 30, 2010.
(B) The amount of the increase otherwise provided under subparagraph (A) for Puerto Rico shall be further increased by $295,900,000.
(C) Subject to subparagraphs (D) and (F), for the period beginning January 1, 2018, and ending September 30, 2019—
(i) the amount of the increase otherwise provided under subparagraphs (A) and (B) for Puerto Rico shall be further increased by $3,600,000,000; and
(ii) the amount of the increase otherwise provided under subparagraph (A) for the Virgin Islands shall be further increased by $106,931,000.
(D) For the period described in subparagraph (C), the amount of the increase otherwise provided under subparagraph (A)—
(i) for Puerto Rico shall be further increased by $1,200,000,000 if the Secretary certifies that Puerto Rico has taken reasonable and appropriate steps during such period, in accordance with a timeline established by the Secretary, to—
(I) implement methods, satisfactory to the Secretary, for the collection and reporting of reliable data to the Transformed Medicaid Statistical Information System (T–MSIS) (or a successor system); and
(II) demonstrate progress in establishing a State medicaid fraud control unit described in
(ii) for the Virgin Islands shall be further increased by $35,644,000 if the Secretary certifies that the Virgin Islands has taken reasonable and appropriate steps during such period, in accordance with a timeline established by the Secretary, to meet the conditions for certification specified in subclauses (I) and (II) of clause (i).
(E) Subject to subparagraph (F), for the period beginning January 1, 2019, and ending September 30, 2019, the amount of the increase otherwise provided under subparagraph (A) for the Northern Mariana Islands shall be further increased by $36,000,000.
(F) Notwithstanding any other provision of subchapter XIX—
(i) during the period in which the additional funds provided under subparagraphs (C), (D), and (E) are available for Puerto Rico, the Virgin Islands, and the Northern Mariana Islands, respectively, with respect to payments from such additional funds for amounts expended by Puerto Rico, the Virgin Islands, and the Northern Mariana Islands under such subchapter, the Secretary shall increase the Federal medical assistance percentage or other rate that would otherwise apply to such payments to 100 percent; and
(ii) for the period beginning January 1, 2019, and ending September 30, 2019, with respect to payments to Guam and American Samoa from the additional funds provided under subparagraph (A), the Secretary shall increase the Federal medical assistance percentage or other rate that would otherwise apply to such payments to 100 percent.
(G) Not later than September 30, 2019, Guam and American Samoa shall each submit a plan to the Secretary outlining the steps each such territory shall take to collect and report reliable data to the Transformed Medicaid Statistical Information System (T–MSIS) (or a successor system).
(6) Application to Puerto Rico for fiscal years 2020 through 2021
(A) In general
Subject to subparagraph (B), the amount specified in this paragraph is—
(i) for fiscal year 2020, $2,716,188,000; and
(ii) for fiscal year 2021, $2,809,063,000.
(B) Additional increase for Puerto Rico
(i) In general
For each of fiscal years 2020 through 2021, the amount specified in this paragraph for the fiscal year shall be equal to the amount specified for such fiscal year under subparagraph (A) increased by $200,000,000 if the Secretary certifies that, with respect to such fiscal year, Puerto Rico's State plan under subchapter XIX (or a waiver of such plan) establishes a reimbursement floor, implemented through a directed payment arrangement plan, for physician services that are covered under the Medicare part B fee schedule in the Puerto Rico locality established under
(ii) Application to managed care
In certifying whether Puerto Rico has established a reimbursement floor under a directed payment arrangement plan that satisfies the requirements of clause (i)—
(I) for fiscal year 2020, the Secretary shall apply such requirements to payments for physician services under a managed care contract entered into or renewed after December 20, 2019, and disregard payments for physician services under any managed care contract that was entered into prior to such date; and
(II) for each of fiscal years 2020 through 2021—
(aa) the Secretary shall disregard payments made under sub-capitated arrangements for services such as primary care case management; and
(bb) if the reimbursement floor for physician services applicable under a managed care contract satisfies the requirements of clause (i) for the fiscal year in which the contract is entered into or renewed, such reimbursement floor shall be deemed to satisfy such requirements for the subsequent fiscal year.
(7) Puerto Rico program integrity requirements
(A) In general
(i) Program Integrity Lead
Not later than 6 months after December 20, 2019, the agency responsible for the administration of Puerto Rico's Medicaid program under subchapter XIX shall designate an officer (other than the director of such agency) to serve as the Program Integrity Lead for such program.
(ii) PERM requirement
Not later than 18 months after December 20, 2019, Puerto Rico shall publish a plan, developed by Puerto Rico in coordination with the Administrator of the Centers for Medicare & Medicaid Services and approved by the Administrator, for how Puerto Rico will develop measures to satisfy the payment error rate measurement (PERM) requirements under subpart Q of part 431 of title 42, Code of Federal Regulations (or any successor regulation).
(iii) Contracting reform reporting
Not later than 12 months after December 20, 2019, Puerto Rico shall publish a contracting reform plan to combat fraudulent, wasteful, or abusive contracts under Puerto Rico's Medicaid program under subchapter XIX that includes—
(I) metrics for evaluating the success of the plan; and
(II) a schedule for publicly releasing status reports on the plan.
(iv) MEQC
Not later than 18 months after December 20, 2019, Puerto Rico shall publish a plan, developed by Puerto Rico in coordination with the Administrator of the Centers for Medicare & Medicaid Services and approved by the Administrator, for how Puerto Rico will comply with the Medicaid eligibility quality control (MEQC) requirements of subpart P of part 431 of title 42, Code of Federal Regulations (or any successor regulation).
(v) Contracting and procurement oversight lead requirement
(I) In general
Not later than 6 months after December 29, 2022, the agency responsible for the administration of Puerto Rico's Medicaid program under subchapter XIX shall designate an officer (other than the director of such agency) to serve as the Contracting and Procurement Oversight Lead to carry out the duties specified in subclause (II).
(II) Duties
Not later than 60 days after the end of each fiscal quarter (beginning with the first fiscal quarter beginning on or after the date that is 1 year after December 29, 2022), the officer designated pursuant to subclause (I) shall, with respect to each contract described in clause (iii) with an annual value exceeding $150,000 entered into during such quarter, certify to the Secretary either—
(aa) that such contract has met the procurement standards identified under any of sections 75.327, 75.328, and 75.329 of title 45, Code of Federal Regulations (or successor regulations); or
(bb) that extenuating circumstances (including a lack of multiple entities competing for such contract) prevented the compliance of such contract with such standards.
(III) Publication
The officer designated pursuant to subclause (I) shall make public each certification containing extenuating circumstances described in subclause (II)(bb) not later than 30 days after such certification is made, including a description of, and justification of, such extenuating circumstances.
(IV) Review of compliance
Not later than 2 years after December 29, 2022, the Inspector General of the Department of Health and Human Services shall submit to Congress a report on the compliance of Puerto Rico with the provisions of this clause.
(B) FMAP reduction for failure to meet additional requirements
(i) In general
For each fiscal quarter during the period beginning on January 1, 2020, and ending on September 30, 2021:
(I) For every clause under subparagraph (A) with respect to which Puerto Rico does not fully satisfy the requirements described in the clause (including requirements imposed under the terms of a plan described in the clause) in the fiscal quarter, the Federal medical assistance percentage applicable to Puerto Rico under
(II) The number of percentage points determined under this subclause with respect to a clause under subparagraph (A) and a fiscal quarter shall be the number of percentage points (not to exceed 2.5 percentage points) equal to—
(aa) 0.25 percentage points; multiplied by
(bb) the total number of consecutive fiscal quarters for which Puerto Rico has not fully satisfied the requirements described in such clause.
(ii) Exception for extenuating circumstances or reasonable progress
For purposes of clause (i), Puerto Rico shall be deemed to have fully satisfied the requirements of a clause under subparagraph (A) (including requirements imposed under the terms of a plan described in the clause) for a fiscal quarter if—
(I) the Secretary approves an application from Puerto Rico describing extenuating circumstances that prevented Puerto Rico from fully satisfying the requirements of the clause; or
(II) in the case of a requirement imposed under the terms of a plan described in a clause under subparagraph (A), Puerto Rico has made objectively reasonable progress towards satisfying such terms and has submitted a timely request for an exception to the imposition of a penalty to the Secretary.
(8) Program Integrity Lead requirement for the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa
(A) Program Integrity Lead requirement
Not later than October 1, 2020, the agency responsible for the administration of the Medicaid program under subchapter XIX of each territory specified in subparagraph (C) shall designate an officer (other than the director of such agency) to serve as the Program Integrity Lead for such program.
(B) FMAP reduction
For each fiscal quarter during fiscal year 2021, if the territory fails to satisfy the requirement of subparagraph (A) for the fiscal quarter, the Federal medical assistance percentage applicable to the territory under
(i) 0.25 percentage points; multiplied by
(ii) the total number of fiscal quarters during the fiscal year in which the territory failed to satisfy such requirement.
(C) Scope
This paragraph shall apply to the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.
(9) Annual report
(A) In general
Not later than the date that is 30 days after the end of each fiscal year (beginning with fiscal year 2020 and ending with fiscal year 2021) and for fiscal year 2023 and each subsequent fiscal year (or, in the case of Puerto Rico, and for fiscal year 2023 and each subsequent fiscal year before fiscal year 2028), in the case that a specified territory receives a Medicaid cap increase, or an increase in the Federal medical assistance percentage for such territory under
(i) the extent to which such territory has, with respect to such plan (or waiver)—
(I) increased payments to health care providers;
(II) increased covered benefits;
(III) expanded health care provider networks; or
(IV) improved in any other manner the carrying out of such plan (or waiver); and
(ii) any other information as determined necessary by such territory.
(B) Definitions
In this paragraph:
(i) Medicaid cap increase
The term "Medicaid cap increase" means, with respect to a specified territory and fiscal year, any increase in the amounts otherwise determined under this subsection for such territory for such fiscal year by reason of the amendments made by section 202 of division N of the Further Consolidated Appropriations Act, 2020 or by reason of the amendments made by section 5101 of the Health Extenders, Improving Access to Medicare, Medicaid, and CHIP, and Strengthening Public Health Act of 2022.
(ii) Specified territory
The term "specified territory" means Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.
(10) Additional increase for Puerto Rico for fiscal year 2022
(A) In general
Notwithstanding the preceding provisions of this subsection, the total amount certified for Puerto Rico for fiscal year 2022 under this subsection shall be increased by $200,000,000 if the Secretary certifies that, with respect to such fiscal year, Puerto Rico's State plan under subchapter XIX (or a waiver of such plan) establishes a reimbursement floor, implemented through a directed payment arrangement plan, for physician services that are covered under the Medicare part B fee schedule in the Puerto Rico locality established under
(B) Application to managed care
In certifying whether Puerto Rico has established a reimbursement floor under a directed payment arrangement plan that satisfies the requirements of subparagraph (A) for fiscal year 2022, the Secretary shall—
(i) disregard payments made under sub-capitated arrangements for services such as primary care case management; and
(ii) if the reimbursement floor for physician services applicable under a managed care contract satisfies the requirements of subparagraph (A) for the fiscal year in which the contract is entered into or renewed, such reimbursement floor shall be deemed to satisfy such requirements for the subsequent fiscal year.
(11) Allotment amounts for Puerto Rico for fiscal year 2023 and subsequent fiscal years
For purposes of paragraph (2)(A)(iii), subject to paragraphs (12) and (13), the amounts specified in this paragraph are the following:
(A) For fiscal year 2023, $3,275,000,000.
(B) For fiscal year 2024, $3,325,000,000.
(C) For fiscal year 2025, $3,475,000,000.
(D) For fiscal year 2026, $3,645,000,000.
(E) For fiscal year 2027, $3,825,000,000.
(F) For fiscal year 2028, the sum of the amount that would have been provided under this subsection for Puerto Rico for such fiscal year in accordance with clause (i) of paragraph (2)(A) (without regard to clause (iii) of such paragraph) had the amount provided under this subsection for Puerto Rico for each of fiscal years 2020 through 2027 been equal to the following:
(i) For fiscal year 2020, the sum of the amount provided under this subsection for Puerto Rico for fiscal year 2019, increased by the percentage increase in the medical care component of the Consumer Price Index for all urban consumers (as published by the Bureau of Labor Statistics) for the 12-month period ending in March preceding the beginning of the fiscal year, rounded to the nearest $100,000.
(ii) For each of fiscal years 2021 through 2027, the sum of the amount provided under this subparagraph for the preceding fiscal year, increased in accordance with the percentage increase described in clause (i), rounded to the nearest $100,000.
(G) For fiscal year 2029 and each subsequent fiscal year, the sum of the amount specified in this paragraph for the preceding fiscal year, increased by the percentage increase in the medical care component of the Consumer Price Index for all urban consumers (as published by the Bureau of Labor Statistics) for the 12-month period ending in March preceding the beginning of the fiscal year, rounded to the nearest $100,000.
In determining the amount specified under subparagraph (F) for fiscal year 2028 or under subparagraph (G) for fiscal year 2029 or a subsequent fiscal year, the Secretary may in no way take into account the amount that was provided under this subsection for Puerto Rico for fiscal year 2022 that was based on the Centers for Medicare & Medicaid Services' interpretation of the flush language following paragraph (2)(E) (as described in the letters sent by the Centers for Medicare & Medicaid Services to the Director of the Medicaid Program for Puerto Rico dated September 24, 2021, and November 18, 2021, respectively).
(12) Additional increase for Puerto Rico
(A) In general
For fiscal year 2023 and each subsequent fiscal year through fiscal year 2027, the amount specified in paragraph (11) for the fiscal year shall be equal to the amount specified for such fiscal year under such paragraph increased by $300,000,000 if the Secretary certifies that, with respect to such fiscal year, Puerto Rico's State plan under subchapter XIX (or waiver of such plan) establishes a reimbursement floor, implemented through a directed payment arrangement plan, for physician services that are covered under the Medicare part B fee schedule in the Puerto Rico locality established under
(B) Application to managed care
In certifying whether Puerto Rico has established a reimbursement floor under a directed payment arrangement plan that satisfies the requirements of subparagraph (A)—
(i) for fiscal year 2023, the Secretary shall apply such requirements to payments for physician services under a managed care contract entered into or renewed after December 29, 2022, and disregard payments for physician services under any managed care contract that was entered into prior to such date; and
(ii) for each subsequent fiscal year through fiscal year 2027—
(I) the Secretary shall disregard payments made under subcapitated arrangements for services such as primary care case management; and
(II) if the reimbursement floor for physician services applicable under a managed care contract satisfies the requirements of subparagraph (A) for the fiscal year in which the contract is entered into or renewed, such reimbursement floor shall be deemed to satisfy such requirements for the subsequent fiscal year.
(C) Nonapplication of increase in determining allotments for subsequent fiscal years
An increase under this paragraph for a fiscal year may not be taken into account in calculating the amount specified under paragraph (11) for the succeeding fiscal year.
(13) Further increase for Puerto Rico
(A) In general
For each of fiscal years 2023 through 2027, the amount specified in paragraph (11) for the fiscal year shall be equal to the amount specified for such fiscal year under such paragraph (increased, if applicable, in accordance with paragraph (12)) and further increased—
(i) in the case of each of fiscal years 2023 through 2025, by $75,000,000 if the Secretary determines that Puerto Rico fully satisfies the requirements described in paragraph (7)(A)(i) for such fiscal year; and
(ii) in the case of each of fiscal years 2026 and 2027, by $75,000,000 if the Secretary determines that Puerto Rico fully satisfies the requirements described in—
(I) paragraph (7)(A)(i) for such fiscal year; and
(II) paragraph (7)(A)(v) for such fiscal year.
(B) Nonapplication of increase in determining allotments for subsequent fiscal years
An increase under this paragraph for a fiscal year may not be taken into account in calculating the amount specified under paragraph (11) for the succeeding fiscal year.
(h) Exclusion of medical assistance expenditures for citizens of freely associated states
Expenditures for medical assistance provided to an individual described in
(i) Data systems improvement payments
(1) In general
Subject to paragraphs (2) and (3), the Secretary shall pay to each eligible territory an amount equal to 100 percent of the qualifying data system improvement expenditures incurred by such territory on or after October 1, 2023.
(2) Treatment as Medicaid payments
(A) In general
Payments to eligible territories made under this paragraph shall be considered to have been made under, and are subject to the requirements of,
(B) Nonduplication
No payment shall be made under subchapter XIX (other than as provided under paragraph (1)), subchapter XXI, or any other provision of law with respect to an expenditure for which payment is made under such paragraph.
(3) Allotments
The Secretary shall specify an allotment for each eligible territory for payments made under paragraph (1) in a manner such that—
(A) the total amount of payments made under such paragraph for all eligible territories does not exceed $20,000,000; and
(B) each eligible territory receives an equitable allotment of such payments.
(4) No effect on territorial caps
A payment to an eligible territory under this subsection shall not be taken into account for purposes of applying the payment limits under subsections (f) and (g).
(5) Definitions
In this subsection:
(A) Eligible territory
The term "eligible territory" means American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands.
(B) Qualifying data system improvement expenditure
The term "qualifying data system improvement expenditure" means an expenditure by an eligible territory to improve, update, or enhance a data system that is used by the territory to carry out an administrative activity for which Federal financial participation is available under
(Aug. 14, 1935, ch. 531, title XI, §1108, as added Aug. 28, 1950, ch. 809, title III, pt. 6, §361(g),
Editorial Notes
References in Text
Subsection (e), referred to in subsec. (c)(2), was repealed by
Section 202 of division N of the Further Consolidated Appropriations Act, 2020, referred to in subsec. (g)(9)(B)(i), is section 202 of div. N of
Section 5101 of the Health Extenders, Improving Access to Medicare, Medicaid, and CHIP, and Strengthening Public Health Act of 2022, referred to in subsec. (g)(9)(B)(i), is section 5101 of div. FF of
Amendments
2022—Subsec. (g)(2).
Subsec. (g)(2)(A)(i).
Subsec. (g)(2)(A)(iii).
Subsec. (g)(7)(A)(iii).
Subsec. (g)(7)(A)(v).
Subsec. (g)(9)(A).
Subsec. (g)(9)(B)(i).
Subsec. (g)(10).
Subsec. (g)(11) to (13).
Subsec. (i).
2020—Subsec. (f).
Subsec. (g)(2)(B).
Subsec. (g)(2)(C).
Subsec. (g)(2)(D).
Subsec. (g)(2)(E).
Subsec. (g)(4).
Subsec. (g)(6)(A)(i).
Subsec. (g)(6)(A)(ii).
Subsec. (h).
2019—Subsec. (g)(2).
Subsec. (g)(2)(A).
Subsec. (g)(2)(B).
Subsec. (g)(2)(C).
Subsec. (g)(2)(D).
Subsec. (g)(2)(E).
Subsec. (g)(5)(A).
Subsec. (g)(5)(C).
Subsec. (g)(5)(E).
Subsec. (g)(5)(F).
Subsec. (g)(5)(F)(i).
Subsec. (g)(5)(G).
Subsec. (g)(6) to (8).
Subsec. (g)(9).
2018—Subsec. (a)(2).
Subsec. (g)(4).
Subsec. (g)(5)(A).
Subsec. (g)(5)(C) to (E).
2017—Subsec. (b)(2).
Subsec. (g)(4).
Subsec. (g)(5).
2012—Subsec. (b)(2).
2010—Subsec. (g)(2).
Subsec. (g)(4).
Subsec. (g)(4)(B).
Subsec. (g)(5).
2009—Subsec. (a)(2).
Subsec. (g)(4).
2006—Subsec. (g)(2).
Subsec. (g)(3).
2003—Subsec. (b)(2).
Subsec. (f).
1997—Subsec. (a).
Subsec. (a)(2).
Subsec. (b)(1)(A).
Subsec. (e).
"(1) the total amount expended by the territory under all programs of the territory operated pursuant to the provisions of law specified in subsection (a) of this section (as such provisions were in effect for fiscal year 1995) for fiscal year 1995; exceeds
"(2) the total amount expended by the territory under all programs of the territory that are funded under the provisions of law specified in subsection (a) of this section for the fiscal year that immediately precedes the fiscal year referred to in the matter preceding paragraph (1)."
Subsec. (f).
Subsec. (g).
1996—
Subsecs. (a), (b).
Subsec. (c).
Subsecs. (d), (e).
Subsec. (f).
1993—Subsec. (c)(1) to (5).
"(1) Puerto Rico shall not exceed (A) $73,400,000 for fiscal year 1988, (B) $76,200,000 for fiscal year 1989, and (C) $79,000,000 for fiscal year 1990 (and each succeeding fiscal year);
"(2) the Virgin Islands shall not exceed (A) $2,430,000 for fiscal year 1988, (B) $2,515,000 for fiscal year 1989, and (C) $2,600,000 for fiscal year 1990 (and each succeeding fiscal year);
"(3) Guam shall not exceed (A) $2,320,000 for fiscal year 1988, (B) $2,410,000 for fiscal year 1989, and (C) $2,500,000 for fiscal year 1990 (and each succeeding fiscal year);
"(4) the Northern Mariana Islands shall not exceed (A) $636,700 for fiscal year 1988, (B) $693,350 for fiscal year 1989, and (C) $750,000 for fiscal year 1990 (and each succeeding fiscal year); and
"(5) American Samoa shall not exceed (A) $1,330,000 for fiscal year 1988, (B) $1,390,000 for fiscal year 1989, and (C) $1,450,000 for fiscal year 1990 (and each succeeding fiscal year)."
1988—
Subsec. (a).
Subsec. (a)(1)(F), (G).
Subsec. (a)(2)(F), (G).
Subsec. (a)(3)(F), (G).
Subsec. (b).
Subsecs. (d), (e).
1987—Subsec. (c).
"(1) Puerto Rico shall not exceed $63,400,000;
"(2) the Virgin Islands shall not exceed $2,100,000;
"(3) Guam shall not exceed $2,000,000;
"(4) the Northern Mariana Islands shall not exceed $550,000; and
"(5) American Samoa shall not exceed $1,150,000."
1984—Subsec. (c).
1982—Subsec. (a).
Subsec. (c)(5).
1981—Subsec. (a).
Subsec. (c).
Subsec. (d).
1980—Subsec. (a).
1978—Subsec. (a)(1)(E).
Subsec. (a)(1)(F).
Subsec. (a)(2)(E).
Subsec. (a)(2)(F).
Subsec. (a)(3)(E).
Subsec. (a)(3)(F).
1975—Subsec. (a).
1972—Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d).
1968—
1965—
1962—
1961—
1960—
1958—
1956—Act Aug. 1, 1956, substituted "$5,312,500" for "$4,250,000", and "$200,000" for "$160,000".
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
Amendment by section 208(d) of
"(1)
"(2)
Effective Date of 2018 Amendment
Amendment by section 50711(f) of
Effective Date of 2009 Amendment
Amendment by
Effective Date of 2003 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1993 Amendment
Effective Date of 1988 Amendment
Amendment by section 202(c)(2), (3) of
Amendment by section 601(b), (c)(2) of
Effective Date of 1987 Amendment
Effective Date of 1984 Amendment
Effective Date of 1982 Amendment
Amendment by section 136(b) of
Amendment by section 160(a) of
Effective Date of 1981 Amendment
For effective date, savings, and transitional provisions relating to amendment by section 2193(c)(1) of
Amendment by section 2353(f) of
Effective Date of 1975 Amendment
Amendment by
Effective Date of 1972 Amendment
Amendment by section 272(b) of
Effective Date of 1968 Amendment
Effective Date of 1965 Amendment
Amendment by section 208(a)(2)
Effective Date of 1962 Amendment
Effective and Termination Dates of 1961 Amendment
Section 132(d) of
Effective Date of 1960 Amendment
Amendment by
Effective Date of 1958 Amendment
For effective date of amendments made by sections 507 and 508 of
Effective Date of 1956 Amendment
Act Aug. 1, 1956, ch. 836, title III, §351(d),
Repeals: Effective Date
Section 132(d) of
Limitation on Payments: Effective Date
Section 132(d) of
Construction of 2010 Amendment
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
1 See References in Text note below.
§1309. Amounts disregarded not to be taken into account in determining eligibility of other individuals
Any amount which is disregarded (or set aside for future needs) in determining the eligibility of and amount of the aid or assistance for any individual under a State plan approved under subchapter I, X, XIV, XVI, or XIX,1 shall not be taken into consideration in determining the eligibility of and amount of aid or assistance for any other individual under a State plan approved under any other of such subchapters.
(Aug. 14, 1935, ch. 531, title XI, §1109, as added July 18, 1952, ch. 945, §7,
Editorial Notes
Amendments
1996—
1968—
1965—
1962—
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
1 So in original. The comma probably should not appear.
§1310. Cooperative research or demonstration projects
(a) In general
(1) There are hereby authorized to be appropriated for the fiscal year ending June 30, 1957, $5,000,000 and for each fiscal year thereafter such sums as the Congress may determine for (A) making grants to States and public and other organizations and agencies for paying part of the cost of research or demonstration projects such as those relating to the prevention and reduction of dependency, or which will aid in effecting coordination of planning between private and public welfare agencies or which will help improve the administration and effectiveness of programs carried on or assisted under this chapter and programs related thereto, and (B) making contracts or jointly financed cooperative arrangements with States and public and other organizations and agencies for the conduct of research or demonstration projects relating to such matters.
(2) No contract or jointly financed cooperative arrangement shall be entered into, and no grant shall be made, under paragraph (1), until the Secretary (or the Commissioner, with respect to any jointly financed cooperative agreement or grant concerning subchapters II or XVI) obtains the advice and recommendations of specialists who are competent to evaluate the proposed projects as to soundness of their design, the possibilities of securing productive results, the adequacy of resources to conduct the proposed research or demonstrations, and their relationship to other similar research or demonstrations already completed or in process.
(3) Grants and payments under contracts or cooperative arrangements under paragraph (1) may be made either in advance or by way of reimbursement, as may be determined by the Secretary (or the Commissioner, with respect to any jointly financed cooperative agreement or grant concerning subchapter II or XVI); and shall be made in such installments and on such conditions as the Secretary (or the Commissioner, as applicable) finds necessary to carry out the purposes of this subsection.
(b) Limitations and costs
(1) The Commissioner is authorized to waive any of the requirements, conditions, or limitations of subchapter XVI (or to waive them only for specified purposes, or to impose additional requirements, conditions, or limitations) to such extent and for such period as the Commissioner finds necessary to carry out one or more experimental, pilot, or demonstration projects which, in the Commissioner's judgment, are likely to assist in promoting the objectives or facilitate the administration of such subchapter. Any costs for benefits under or administration of any such project (including planning for the project and the review and evaluation of the project and its results), in excess of those that would have been incurred without regard to the project, shall be met by the Commissioner from amounts available to the Commissioner for this purpose from appropriations made to carry out such subchapter. The costs of any such project which is carried out in coordination with one or more related projects under other subchapters of this chapter shall be allocated among the appropriations available for such projects and any Trust Funds involved, in a manner determined by the Commissioner with respect to the old-age, survivors, and disability insurance programs under subchapter II and the supplemental security income program under subchapter XVI, and by the Secretary with respect to other subchapters of this chapter, taking into consideration the programs (or types of benefit) to which the project (or part of a project) is most closely related or which the project (or part of a project) is intended to benefit. If, in order to carry out a project under this subsection, the Commissioner requests a State to make supplementary payments (or the Commissioner makes them pursuant to an agreement under
(2) With respect to the participation of recipients of supplemental security income benefits in experimental, pilot, or demonstration projects under this subsection—
(A) the Commissioner is not authorized to carry out any project that would result in a substantial reduction in any individual's total income and resources as a result of his or her participation in the project;
(B) the Commissioner may not require any individual to participate in a project; and the Commissioner shall assure (i) that the voluntary participation of individuals in any project is obtained through informed written consent which satisfies the requirements for informed consent established by the Commissioner for use in any experimental, pilot, or demonstration project in which human subjects are at risk, and (ii) that any individual's voluntary agreement to participate in any project may be revoked by such individual at any time;
(C) the Commissioner shall, to the extent feasible and appropriate, include recipients who are under age 18 as well as adult recipients; and
(D) the Commissioner shall include in the projects carried out under this section such experimental, pilot, or demonstration projects as may be necessary to ascertain the feasibility of treating alcoholics and drug addicts to prevent the onset of irreversible medical conditions which may result in permanent disability, including programs in residential care treatment centers.
(c) Survey of use of payments
(1) In addition to the amount otherwise appropriated in any other law to carry out subsection (a) for fiscal year 2004, up to $8,500,000 is authorized and appropriated and shall be used by the Commissioner of Social Security under this subsection for purposes of conducting a statistically valid survey to determine how payments made to individuals, organizations, and State or local government agencies that are representative payees for benefits paid under subchapter II or XVI are being managed and used on behalf of the beneficiaries for whom such benefits are paid.
(2) Not later than 18 months after March 2, 2004, the Commissioner of Social Security shall submit a report on the survey conducted in accordance with paragraph (1) to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate.
(Aug. 14, 1935, ch. 531, title XI, §1110, as added Aug. 1, 1956, ch. 836, title III, §331,
Editorial Notes
Amendments
2004—Subsec. (c).
1999—Subsec. (a)(3).
1997—Subsec. (a)(3).
1994—Subsec. (a)(2).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
1986—Subsec. (b)(3).
1984—Subsec. (a)(1)(A).
1980—
1968—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 1999 Amendment
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1984 Amendment
Vocational Rehabilitation Demonstration Projects
Final Report Covering All Experiments and Demonstration Projects
Authority for Demonstration Projects; Report to Congress
§1311. Public assistance payments to legal representatives
For purposes of subchapters I, X, XIV, and XVI, and part A of subchapter IV, payments on behalf of an individual, made to another person who has been judicially appointed, under the law of the State in which such individual resides, as legal representative of such individual for the purpose of receiving and managing such payments (whether or not he is such individual's legal representative for other purposes), shall be regarded as money payments to such individual.
(Aug. 14, 1935, ch. 531, title XI, §1111, as added
Editorial Notes
Amendments
1968—
1962—
Statutory Notes and Related Subsidiaries
Effective Date
§1312. Medical care guides and reports for public assistance and medical assistance
In order to assist the States to extend the scope and content, and improve the quality, of medical care and medical services for which payments are made to or on behalf of needy and low-income individuals under this chapter and in order to promote better public understanding about medical care and medical assistance for needy and low-income individuals, the Secretary shall develop and revise from time to time guides or recommended standards as to the level, content, and quality of medical care and medical services for the use of the States in evaluating and improving their public assistance medical care programs and their programs of medical assistance; shall secure periodic reports from the States on items included in, and the quantity of, medical care and medical services for which expenditures under such programs are made; and shall from time to time publish data secured from these reports and other information necessary to carry out the purposes of this section.
(Aug. 14, 1935, ch. 531, title XI, §1112, as added
Editorial Notes
Amendments
1965—
§1313. Assistance for United States citizens returned from foreign countries
(a) Authorization; reimbursement; utilization of facilities of public or private agencies and organizations
(1) The Secretary is authorized to provide temporary assistance to citizens of the United States and to dependents of citizens of the United States, if they (A) are identified by the Department of State as having returned, or been brought, from a foreign country to the United States because of the destitution of the citizen of the United States or the illness of such citizen or any of his dependents or because of war, threat of war, invasion, or similar crisis, and (B) are without available resources.
(2) Except in such cases or classes of cases as are set forth in regulations of the Secretary, provision shall be made for reimbursement to the United States by the recipients of the temporary assistance to cover the cost thereof.
(3) The Secretary may provide assistance under paragraph (1) directly or through utilization of the services and facilities of appropriate public or private agencies and organizations, in accordance with agreements providing for payment, in advance or by way of reimbursement, as may be determined by the Secretary, of the cost thereof. Such cost shall be determined by such statistical, sampling, or other method as may be provided in the agreement.
(b) Plans and arrangements for assistance; consultations
The Secretary is authorized to develop plans and make arrangements for provision of temporary assistance within the United States to individuals specified in subsection (a)(1). Such plans shall be developed and such arrangements shall be made after consultation with the Secretary of State, the Attorney General, and the Secretary of Defense. To the extent feasible, assistance provided under subsection (a) shall be provided in accordance with the plans developed pursuant to this subsection, as modified from time to time by the Secretary.
(c) "Temporary assistance" defined
For purposes of this section, the term "temporary assistance" means money payments, medical care, temporary billeting, transportation, and other goods and services necessary for the health or welfare of individuals (including guidance, counseling, and other welfare services) furnished to them within the United States upon their arrival in the United States and for such period after their arrival, not exceeding ninety days, as may be provided in regulations of the Secretary; except that assistance under this section may be furnished beyond such ninety-day period in the case of any citizen or dependent upon a finding by the Secretary that the circumstances involved necessitate or justify the furnishing of assistance beyond such period in that particular case.
(d) Maximum total amount of temporary assistance
The total amount of temporary assistance provided under this section shall not exceed $1,000,000 during any fiscal year beginning after September 30, 2009, except that, in the case of fiscal years 2021 and 2022, the total amount of such assistance provided during each such fiscal year shall not exceed $10,000,000.
(e) Authority of Secretary to accept gifts
(1) The Secretary may accept on behalf of the United States gifts, in cash or in kind, for use in carrying out the program established under this section. Gifts in the form of cash shall be credited to the appropriation account from which this program is funded, in addition to amounts otherwise appropriated, and shall remain available until expended.
(2) Gifts accepted under paragraph (1) shall be available for obligation or other use by the United States only to the extent and in the amounts provided in appropriation Acts.
(Aug. 14, 1935, ch. 531, title XI, §1113, as added
Editorial Notes
Amendments
2021—Subsec. (d).
2020—Subsec. (d).
2017—Subsec. (d).
2010—Subsec. (d).
2006—Subsec. (d).
2003—Subsec. (d).
1990—Subsec. (d).
"(1) $8,000,000 during the fiscal years ending June 30, 1975, and June 30, 1976, and the succeeding calendar quarter, or
"(2) $300,000 during any fiscal year beginning on or after October 1, 1976."
Subsec. (e).
1975—Subsec. (c).
Subsec. (d).
1971—Subsec. (d).
1969—Subsec. (d).
1968—Subsec. (d).
1967—Subsec. (d).
1964—Subsec. (d).
1962—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 1990 Amendment
Limit on Direct Contact With Repatriated Individuals During COVID–19 Emergency Period
"(1) received appropriate training on infection prevention and control; and
"(2) access to appropriate personal protective equipment."
§1314. Public advisory groups
(a) Advisory Council on Public Welfare; appointment and functions of initial Council
The Secretary shall, during 1964, appoint an Advisory Council on Public Welfare for the purpose of reviewing the administration of the public assistance and child welfare services programs for which funds are appropriated pursuant to this chapter and making recommendations for improvement of such administration, and reviewing the status of and making recommendations with respect to the public assistance programs for which funds are so appropriated, especially in relation to the old-age, survivors, and disability insurance program, with respect to the fiscal capacities of the States and the Federal Government, and with respect to any other matters bearing on the amount and proportion of the Federal and State shares in the public assistance and child welfare services programs.
(b) Membership and representation of interests on initial Council
The Council shall be appointed by the Secretary without regard to the provisions of title 5 governing appointments in the competitive service and shall consist of twelve persons who shall, to the extent possible, be representatives of employers and employees in equal numbers, representatives of State or Federal agencies concerned with the administration or financing of the public assistance and child welfare services programs, representatives of nonprofit private organizations concerned with social welfare programs, other persons with special knowledge, experience, or qualifications with respect to such programs, and members of the public.
(c) Technical and other assistance for initial Council; availability of data
The Council is authorized to engage such technical assistance as may be required to carry out its functions, and the Secretary shall, in addition, make available to the Council such secretarial, clerical, and other assistance and such pertinent data prepared by the Department of Health and Human Services as it may require to carry out such functions.
(d) Termination of initial Council's existence on submission of report
The Council shall make a report of its findings and recommendations (including recommendations for changes in the provisions of this chapter) to the Secretary, such report to be submitted not later than July 1, 1966, after which date such Council shall cease to exist.
(e) Succeeding Councils; appointment; functions; membership; representation of interests; assistance and data; termination
The Secretary shall also from time to time thereafter appoint an Advisory Council on Public Welfare, with the same functions and constituted in the same manner as prescribed for the Advisory Council in the preceding subsections of this section. Each Council so appointed shall report its findings and recommendations, as prescribed in subsection (d), not later than July 1 of the second year after the year in which it is appointed, after which date such Council shall cease to exist.
(f) Advisory committees; functions; reports by Secretary
The Secretary may also appoint, without regard to the provisions of title 5 governing appointments in the competitive service, such advisory committees as he may deem advisable to advise and consult with him in carrying out any of his functions under this chapter. The Secretary shall report to the Congress annually on the number of such committees and on the membership and activities of each such committee.
(g) Compensation and travel expenses
Members of the Council or of any advisory committee appointed under this section who are not regular full-time employees of the United States shall, while serving on business of the Council or any such committee, be entitled to receive compensation at rates fixed by the Secretary, but not exceeding $75 per day, including travel time; and while so serving away from their homes or regular places of business, they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by
(h) Exemption from conflict of interest laws of members of Council or advisory committees; exceptions
(1) Any member of the Council or any advisory committee appointed under this chapter, who is not a regular full-time employee of the United States, is hereby exempted, with respect to such appointment, from the operation of
(2) The exemption granted by paragraph (1) shall not extend—
(A) to the receipt or payment of salary in connection with the appointee's Government service from any source other than the employer of the appointee at the time of his appointment, or
(B) during the period of such appointment, to the prosecution or participation in the prosecution, by any person so appointed, of any claim against the Government involving any matter with which such person, during such period, is or was directly connected by reason of such appointment.
(Aug. 14, 1935, ch. 531, title XI, §1114, as added
Editorial Notes
Amendments
2003—Subsec. (i).
2000—Subsec. (i).
1984—Subsec. (c).
Subsec. (g).
Subsec. (h)(1).
1968—Subsecs. (b), (f).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2003 Amendment
Effective Date of 2000 Amendment
"(1) a review of any national or local coverage determination filed,
"(2) a request to make such a determination made, and
"(3) a national coverage determination made,
on or after October 1, 2001."
Effective Date of 1984 Amendment
Amendment by
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See
§1314a. Measurement and reporting of welfare receipt
(a) Congressional policy
The Congress hereby declares that—
(1) it is the policy and responsibility of the Federal Government to reduce the rate at which and the degree to which families depend on income from welfare programs and the duration of welfare receipt, consistent with other essential national goals;
(2) it is the policy of the United States to strengthen families, to ensure that children grow up in families that are economically self-sufficient and that the life prospects of children are improved, and to underscore the responsibility of parents to support their children;
(3) the Federal Government should help welfare recipients as well as individuals at risk of welfare receipt to improve their education and job skills, to obtain child care and other necessary support services, and to take such other steps as may be necessary to assist them to become financially independent; and
(4) it is the purpose of this section to provide the public with generally accepted measures of welfare receipt so that it can track such receipt over time and determine whether progress is being made in reducing the rate at which and, to the extent feasible, the degree to which, families depend on income from welfare programs and the duration of welfare receipt.
(b) Development of welfare indicators and predictors
The Secretary of Health and Human Services (in this section referred to as the "Secretary") in consultation with the Secretary of Agriculture shall—
(1) develop—
(A) indicators of the rate at which and, to the extent feasible, the degree to which, families depend on income from welfare programs and the duration of welfare receipt; and
(B) predictors of welfare receipt;
(2) assess the data needed to report annually on the indicators and predictors, including the ability of existing data collection efforts to provide such data and any additional data collection needs; and
(3) not later than 2 years after October 31, 1994, provide an interim report containing conclusions resulting from the development and assessment described in paragraphs (1) and (2), to—
(A) the Committee on Ways and Means of the House of Representatives;
(B) the Committee on Education and Labor of the House of Representatives;
(C) the Committee on Agriculture of the House of Representatives;
(D) the Committee on Commerce of the House of Representatives;
(E) the Committee on Finance of the Senate;
(F) the Committee on Labor and Human Resources of the Senate; and
(G) the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(c) Advisory Board on Welfare Indicators
(1) Establishment
There is established an Advisory Board on Welfare Indicators (in this subsection referred to as the "Board").
(2) Composition
The Board shall be composed of 12 members with equal numbers to be appointed by the House of Representatives, the Senate, and the President. The Board shall be composed of experts in the fields of welfare research and welfare statistical methodology, representatives of State and local welfare agencies, and organizations concerned with welfare issues.
(3) Vacancies
Any vacancy occurring in the membership of the Board shall be filled in the same manner as the original appointment for the position being vacated. The vacancy shall not affect the power of the remaining members to execute the duties of the Board.
(4) Duties
Duties of the Board shall include—
(A) providing advice and recommendations to the Secretary on the development of indicators of the rate at which and, to the extent feasible, the degree to which, families depend on income from welfare programs and the duration of welfare receipt; and
(B) providing advice on the development and presentation of annual reports required under subsection (d).
(5) Travel expenses
Members of the Board shall not be compensated, but shall receive travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of
(6) Detail of Federal employees
The Secretary shall detail, without reimbursement, any of the personnel of the Department of Health and Human Services to the Board to assist the Board in carrying out its duties. Any detail shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee.
(7) Voluntary service
Notwithstanding
(8) Termination of Board
The Board shall be terminated at such time as the Secretary determines the duties described in paragraph (4) have been completed, but in any case prior to the submission of the first report required under subsection (d).
(d) Annual welfare indicators report
(1) Preparation
The Secretary shall prepare annual reports on welfare receipt in the United States.
(2) Coverage
The report shall include analysis of families and individuals receiving assistance under means-tested benefit programs, including the program of aid to families with dependent children under part A of subchapter IV of this chapter, the supplemental nutrition assistance program under the Food and Nutrition Act of 2008 (
(3) Contents
Each report shall set forth for each of the means-tested benefit programs described in paragraph (2)—
(A) indicators of—
(i) the rate at which and, to the extent feasible, the degree to which, families depend on income from welfare programs, and
(ii) the duration of welfare receipt;
(B) trends in indicators;
(C) predictors of welfare receipt;
(D) the causes of welfare receipt;
(E) patterns of multiple program receipt;
(F) such other information as the Secretary deems relevant; and
(G) such recommendations for legislation, which shall not include proposals to reduce eligibility levels or impose barriers to program access, as the Secretary may determine to be necessary or desirable to reduce—
(i) the rate at which and the degree to which families depend on income from welfare programs, and
(ii) the duration of welfare receipt.
(4) Submission
The Secretary shall submit such a report not later than 3 years after October 31, 1994, and annually thereafter, to the committees specified in subsection (b)(3). Each such report shall be transmitted during the first 60 days of each regular session of Congress.
(e) Short title
This section may be cited as the "Welfare Indicators Act of 1994".
(
Editorial Notes
References in Text
The Food and Nutrition Act of 2008, referred to in subsec. (d)(2), is
Codification
Section was enacted as part of the Social Security Act Amendments of 1994, and not as part of the Social Security Act which comprises this chapter.
Amendments
2008—Subsec. (d)(2).
1998—Subsec. (b)(3)(D).
Subsec. (d)(4).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Education and Labor of House of Representatives changed to Committee on Education and the Workforce of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Committee on Commerce of House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001.
Committee on Labor and Human Resources of Senate changed to Committee on Health, Education, Labor, and Pensions of Senate by Senate Resolution No. 20, One Hundred Sixth Congress, Jan. 19, 1999.
Effective Date of 2008 Amendment
Amendment of this section and repeal of
Amendment by section 4002(b)(1)(A), (B), (2)(X) of
§1314b. National Advisory Committee on the Sex Trafficking of Children and Youth in the United States
(a) Official designation
This section relates to the National Advisory Committee on the Sex Trafficking of Children and Youth in the United States (in this section referred to as the "Committee").
(b) Authority
Not later than 2 years after September 29, 2014, the Secretary shall establish and appoint all members of the Committee.
(c) Membership
(1) Composition
The Committee shall be composed of not more than 21 members whose diverse experience and background enable them to provide balanced points of view with regard to carrying out the duties of the Committee.
(2) Selection
The Secretary, in consultation with the Attorney General and National Governors Association, shall appoint the members to the Committee. At least 1 Committee member shall be a former sex trafficking victim. 2 Committee members shall be a Governor of a State, 1 of whom shall be a member of the Democratic Party and 1 of whom shall be a member of the Republican Party.
(3) Period of appointment; vacancies
Members shall be appointed for the life of the Committee. A vacancy in the Committee shall be filled in the manner in which the original appointment was made and shall not affect the powers or duties of the Committee.
(4) Compensation
Committee members shall serve without compensation or per diem in lieu of subsistence.
(d) Duties
(1) National response
The Committee shall advise the Secretary and the Attorney General on practical and general policies concerning improvements to the Nation's response to the sex trafficking of children and youth in the United States.
(2) Policies for cooperation
The Committee shall advise the Secretary and the Attorney General on practical and general policies concerning the cooperation of Federal, State, local, and tribal governments, child welfare agencies, social service providers, physical health and mental health providers, victim service providers, State or local courts with responsibility for conducting or supervising proceedings relating to child welfare or social services for children and their families, Federal, State, and local police, juvenile detention centers, and runaway and homeless youth programs, schools, the gaming and entertainment industry, and businesses and organizations that provide services to youth, on responding to sex trafficking, including the development and implementation of—
(A) successful interventions with children and youth who are exposed to conditions that make them vulnerable to, or victims of, sex trafficking; and
(B) recommendations for administrative or legislative changes necessary to use programs, properties, or other resources owned, operated, or funded by the Federal Government to provide safe housing for children and youth who are sex trafficking victims and provide support to entities that provide housing or other assistance to the victims.
(3) Best practices and recommendations for States
(A) In general
Within 2 years after the establishment of the Committee, the Committee shall develop 2 tiers (referred to in this subparagraph as "Tier I" and "Tier II") of recommended best practices for States to follow in combating the sex trafficking of children and youth. Tier I shall provide States that have not yet substantively addressed the sex trafficking of children and youth with an idea of where to begin and what steps to take. Tier II shall provide States that are already working to address the sex trafficking of children and youth with examples of policies that are already being used effectively by other States to address sex trafficking.
(B) Development
The best practices shall be based on multidisciplinary research and promising, evidence-based models and programs as reflected in State efforts to meet the requirements of sections 101 and 102 of the Preventing Sex Trafficking and Strengthening Families Act.
(C) Content
The best practices shall be user-friendly, incorporate the most up-to-date technology, and include the following:
(i) Sample training materials, protocols, and screening tools that, to the extent possible, accommodate for regional differences among the States, to prepare individuals who administer social services to identify and serve children and youth who are sex trafficking victims or at-risk of sex trafficking.
(ii) Multidisciplinary strategies to identify victims, manage cases, and improve services for all children and youth who are at risk of sex trafficking, or are sex trafficking victims, in the United States.
(iii) Sample protocols and recommendations based on current States' efforts, accounting for regional differences between States that provide for effective, cross-system collaboration between Federal, State, local, and tribal governments, child welfare agencies, social service providers, physical health and mental health providers, victim service providers, State or local courts with responsibility for conducting or supervising proceedings relating to child welfare or social services for children and their families, the gaming and entertainment industry, Federal, State, and local police, juvenile detention centers and runaway and homeless youth programs, housing resources that are appropriate for housing child and youth victims of trafficking, schools, and businesses and organizations that provide services to children and youth. These protocols and recommendations should include strategies to identify victims and collect, document, and share data across systems and agencies, and should be designed to help agencies better understand the type of sex trafficking involved, the scope of the problem, the needs of the population to be served, ways to address the demand for trafficked children and youth and increase prosecutions of traffickers and purchasers of children and youth, and the degree of victim interaction with multiple systems.
(iv) Developing the criteria and guidelines necessary for establishing safe residential placements for foster children who have been sex trafficked as well as victims of trafficking identified through interaction with law enforcement.
(v) Developing training guidelines for caregivers that serve children and youth being cared for outside the home.
(D) Informing States of best practices
The Committee, in coordination with the National Governors Association, Secretary and Attorney General, shall ensure that State Governors and child welfare agencies are notified and informed on a quarterly basis of the best practices and recommendations for States, and notified 6 months in advance that the Committee will be evaluating the extent to which States adopt the Committee's recommendations.
(E) Report on State implementation
Within 3 years after the establishment of the Committee, the Committee shall submit to the Secretary and the Attorney General, as part of its final report as well as for online and publicly available publication, a description of what each State has done to implement the recommendations of the Committee.
(e) Reports
(1) In general
The Committee shall submit an interim and a final report on the work of the Committee to—
(A) the Secretary;
(B) the Attorney General;
(C) the Committee on Finance of the Senate; and
(D) the Committee on Ways and Means of the House of Representatives.
(2) Reporting dates
The interim report shall be submitted not later than 3 years after the establishment of the Committee. The final report shall be submitted not later than 4 years after the establishment of the Committee.
(f) Administration
(1) Agency support
The Secretary shall direct the head of the Administration for Children and Families of the Department of Health and Human Services to provide all necessary support for the Committee.
(2) Meetings
(A) In general
The Committee will meet at the call of the Secretary at least twice each year to carry out this section, and more often as otherwise required.
(B) Accommodation for Committee members unable to attend in person
The Secretary shall create a process through which Committee members who are unable to travel to a Committee meeting in person may participate remotely through the use of video conference, teleconference, online, or other means.
(3) Subcommittees
The Committee may establish subcommittees or working groups, as necessary and consistent with the mission of the Committee. The subcommittees or working groups shall have no authority to make decisions on behalf of the Committee, nor shall they report directly to any official or entity listed in subsection (d).
(4) Recordkeeping
The records of the Committee and any subcommittees and working groups shall be maintained in accordance with appropriate Department of Health and Human Services policies and procedures and shall be available for public inspection and copying, subject to the Freedom of Information Act (
(g) Termination
The Committee shall terminate 5 years after the date of its establishment, but the Secretary shall continue to operate and update, as necessary, an Internet website displaying the State best practices, recommendations, and evaluation of State-by-State implementation of the Secretary's recommendations.
(h) Definition
For the purpose of this section, the term "sex trafficking" includes the definition set forth in section 7102(10) 1 of title 22 and "severe form of trafficking in persons" described in section 7102(9)(A) 1 of title 22.
(Aug. 14, 1935, ch. 531, title XI, §1114A, as added
Editorial Notes
References in Text
Sections 101 and 102 of the Preventing Sex Trafficking and Strengthening Families Act, referred to in subsec. (d)(3)(B), are sections 101 and 102 of
Section 7102(9)(A) and (10) of title 22, referred to in subsec. (h), was redesignated section 7102(11)(A) and (12), respectively, of title 22 by
1 See References in Text note below.
§1315. Demonstration projects
(a) Waiver of State plan requirements; costs regarded as State plan expenditures; availability of appropriations
In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of subchapter I, X, XIV, XVI, or XIX, or part A or D of subchapter IV, in a State or States—
(1) the Secretary may waive compliance with any of the requirements of
(2)(A) costs of such project which would not otherwise be included as expenditures under
(B) costs of such project which would not otherwise be a permissible use of funds under part A of subchapter IV and which are not included as part of the costs of projects under
In addition, not to exceed $4,000,000 of the aggregate amount appropriated for payments to States under such subchapters for any fiscal year beginning after June 30, 1967, shall be available, under such terms and conditions as the Secretary may establish, for payments to States to cover so much of the cost of such projects as is not covered by payments under such subchapters and is not included as part of the cost of projects for purposes of
(b) Child support enforcement programs
(1) In the case of any experimental, pilot, or demonstration project undertaken under subsection (a) to assist in promoting the objectives of part D of subchapter IV, the project—
(A) must be designed to improve the financial well-being of children or otherwise improve the operation of the child support program;
(B) may not permit modifications in the child support program which would have the effect of disadvantaging children in need of support; and
(C) must not result in increased cost to the Federal Government under part A of such subchapter.
(2) An Indian tribe or tribal organization operating a program under
(c) Demonstration projects to test alternative definitions of unemployment
(1)(A) The Secretary shall enter into agreements with up to 8 States submitting applications under this subsection for the purpose of conducting demonstration projects in such States to test and evaluate the use, with respect to individuals who received aid under part A of subchapter IV in the preceding month (on the basis of the unemployment of the parent who is the principal earner), of a number greater than 100 for the number of hours per month that such individuals may work and still be considered to be unemployed for purposes of
(B) If any State with an agreement under this subsection so requests, the demonstration project conducted pursuant to such agreement may test and evaluate the complete elimination of the 100-hour rule and of any other durational standard that might be applied in defining unemployment for purposes of determining eligibility under
(2) Notwithstanding
(3) An agreement under this subsection shall be entered into between the Secretary and the State agency designated under
(4) A demonstration project under this subsection may be commenced any time after September 30, 1990, and shall be conducted for such period of time as the agreement with the Secretary may provide; except that, in no event may a demonstration project under this section be conducted after September 30, 1995.
(5)(A) Any State with an agreement under this subsection shall evaluate the comparative cost and employment effects of the use of the definition of unemployment in its demonstration project under this section by use of experimental and control groups comprised of a random sample of individuals receiving aid under
(B) The Secretary shall report the results of the demonstration projects conducted under this subsection to the Congress not later than 6 months after all such projects are completed.
(d) Regulations relating to applications for or renewals of demonstration projects
(1) An application or renewal of any experimental, pilot, or demonstration project undertaken under subsection (a) to promote the objectives of subchapter XIX or XXI in a State that would result in an impact on eligibility, enrollment, benefits, cost-sharing, or financing with respect to a State program under subchapter XIX or XXI (in this subsection referred to as a "demonstration project") shall be considered by the Secretary in accordance with the regulations required to be promulgated under paragraph (2).
(2) Not later than 180 days after March 23, 2010, the Secretary shall promulgate regulations relating to applications for, and renewals of, a demonstration project that provide for—
(A) a process for public notice and comment at the State level, including public hearings, sufficient to ensure a meaningful level of public input;
(B) requirements relating to—
(i) the goals of the program to be implemented or renewed under the demonstration project;
(ii) the expected State and Federal costs and coverage projections of the demonstration project; and
(iii) the specific plans of the State to ensure that the demonstration project will be in compliance with subchapter XIX or XXI;
(C) a process for providing public notice and comment after the application is received by the Secretary, that is sufficient to ensure a meaningful level of public input;
(D) a process for the submission to the Secretary of periodic reports by the State concerning the implementation of the demonstration project; and
(E) a process for the periodic evaluation by the Secretary of the demonstration project.
(3) The Secretary shall annually report to Congress concerning actions taken by the Secretary with respect to applications for demonstration projects under this section.
(e) Extensions of State-wide comprehensive demonstration projects for which waivers granted
(1) The provisions of this subsection shall apply to the extension of any State-wide comprehensive demonstration project (in this subsection referred to as "waiver project") for which a waiver of compliance with requirements of subchapter XIX is granted under subsection (a).
(2) During the 6-month period ending 1 year before the date the waiver under subsection (a) with respect to a waiver project would otherwise expire, the chief executive officer of the State which is operating the project may submit to the Secretary a written request for an extension, of up to 3 years (5 years, in the case of a waiver described in
(3) If the Secretary fails to respond to the request within 6 months after the date it is submitted, the request is deemed to have been granted.
(4) If such a request is granted, the deadline for submittal of a final report under the waiver project is deemed to have been extended until the date that is 1 year after the date the waiver project would otherwise have expired.
(5) The Secretary shall release an evaluation of each such project not later than 1 year after the date of receipt of the final report.
(6) Subject to paragraphs (4) and (7), the extension of a waiver project under this subsection shall be on the same terms and conditions (including applicable terms and conditions relating to quality and access of services, budget neutrality, data and reporting requirements, and special population protections) that applied to the project before its extension under this subsection.
(7) If an original condition of approval of a waiver project was that Federal expenditures under the project not exceed the Federal expenditures that would otherwise have been made, the Secretary shall take such steps as may be necessary to ensure that, in the extension of the project under this subsection, such condition continues to be met. In applying the previous sentence, the Secretary shall take into account the Secretary's best estimate of rates of change in expenditures at the time of the extension.
(f) Application for extension of waiver project; submission; approval
An application by the chief executive officer of a State for an extension of a waiver project the State is operating under an extension under subsection (e) (in this subsection referred to as the "waiver project") shall be submitted and approved or disapproved in accordance with the following:
(1) The application for an extension of the waiver project shall be submitted to the Secretary at least 120 days prior to the expiration of the current period of the waiver project.
(2) Not later than 45 days after the date such application is received by the Secretary, the Secretary shall notify the State if the Secretary intends to review the terms and conditions of the waiver project. A failure to provide such notification shall be deemed to be an approval of the application.
(3) Not later than 45 days after the date a notification is made in accordance with paragraph (2), the Secretary shall inform the State of proposed changes in the terms and conditions of the waiver project. A failure to provide such information shall be deemed to be an approval of the application.
(4) During the 30-day period that begins on the date information described in paragraph (3) is provided to a State, the Secretary shall negotiate revised terms and conditions of the waiver project with the State.
(5)(A) Not later than 120 days after the date an application for an extension of the waiver project is submitted to the Secretary (or such later date agreed to by the chief executive officer of the State), the Secretary shall—
(i) approve the application subject to such modifications in the terms and conditions—
(I) as have been agreed to by the Secretary and the State; or
(II) in the absence of such agreement, as are determined by the Secretary to be reasonable, consistent with the overall objectives of the waiver project, and not in violation of applicable law; or
(ii) disapprove the application.
(B) A failure by the Secretary to approve or disapprove an application submitted under this subsection in accordance with the requirements of subparagraph (A) shall be deemed to be an approval of the application subject to such modifications in the terms and conditions as have been agreed to (if any) by the Secretary and the State.
(6) An approval of an application for an extension of a waiver project under this subsection shall be for a period not to exceed 3 years (5 years, in the case of a waiver described in
(7) An extension of a waiver project under this subsection shall be subject to the final reporting and evaluation requirements of paragraphs (4) and (5) of subsection (e) (taking into account the extension under this subsection with respect to any timing requirements imposed under those paragraphs).
(Aug. 14, 1935, ch. 531, title XI, §1115, as added
Editorial Notes
References in Text
Amendments
2014—Subsec. (b).
2010—Subsec. (d).
Subsec. (e)(2).
Subsec. (f)(6).
2000—Subsec. (f).
1997—Subsec. (e).
1996—Subsec. (a)(2).
Subsec. (b).
Subsec. (c).
Subsec. (c)(3).
Subsec. (d).
1988—Subsec. (d).
1986—Subsec. (b)(2)(C).
1984—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (c).
1981—Subsec. (a).
1977—
1975—
Subsec. (a).
Subsec. (b).
1973—
1968—
1967—
1965—
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Effective Date of 1997 Amendment
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1975 Amendment
Amendment by
Effective Date of 1973 Amendment
Amendment by
Effective Date of 1965 Amendment
Guidance on Opportunities for Innovation
Family Support Demonstration Projects
"(a)
"(2) The Secretary shall consider all applications received from States desiring to conduct demonstration projects under this subsection, shall approve up to 10 applications involving projects which appear likely to contribute significantly to the achievement of the purpose of this subsection, and shall make grants to the States whose applications are approved to assist them in carrying out such projects.
"(3) The Secretary shall submit to the Congress with respect to each project undertaken by a State under this subsection, after such project has been carried out for one year and again when such project is completed, a detailed evaluation of the project and of its contribution to the achievement of the purpose of this subsection.
"(4) For grants to States to conduct demonstration projects under this subsection, there are authorized to be appropriated not to exceed $3,000,000 for each of the fiscal years 1995 through 1999.
"(b)
"(c)
"(d)
Demonstration Projects To Encourage States To Employ Parents Receiving AFDC as Paid Child Care Providers
Demonstration Projects To Address Child Access Problems
Demonstration Projects To Provide Counseling and Services to High-Risk Teenagers
"(a)
"(A) the incidences of teenage pregnancy, suicide, substance abuse, and school dropout are increasing;
"(B) research to date has established a link between low self-esteem, perceived limited life options and the risk of teenage pregnancy, suicide, substance abuse, and school dropout;
"(C) little data currently exists on how to improve the self-image of and expand the life options available to high-risk teenagers; and
"(D) there currently is no Federal program in place to address the unique and significant problems faced by today's teenagers.
"(2) It is the purpose of the demonstration projects conducted under this section to provide programs in which a range of non-academic services (sports, recreation, the arts) and self-image counseling are provided to high-risk teenagers in order to reduce the rates of pregnancy, suicide, substance abuse, and school dropout among such teenagers.
"(b)
"(c)
"(1) The State shall establish a 'Teen Care Plan' that shall consist of the following:
"(A) A clearing house where high-risk teenagers will be referred to and encouraged to participate in non-academic activities (arts, recreation, sports) which are already in place in the community.
"(B) A survey of the area to be targeted by the project to determine the need to fund and create new non-academic activities in the area.
"(C) Counseling services utilizing qualified, locally licensed psychologists, social psychologists, or other mental health professionals or related experts to provide individual and group counseling to participating high-risk teenagers.
"(D) A program to provide participants in the project (to the extent practicable) with such transportation, child care, and equipment as is necessary to carry out the purposes of the project.
"(2) The State shall designate two geographical areas within the State to be targeted by the project. One area will serve as the 'home base' for the project, where services will be concentrated and in which a local school system will be selected to receive services and provide facilities for resource referral and counseling. The second geographical area will serve as a 'peripheral' participant, receiving assistance and services from the home base.
"(3) A high-risk teenager is any male or female who has reached the age of 10 years and whose age does not exceed 20 years, and who—
"(A) has a history of academic problems;
"(B) has a history of behavioral problems both in and out of school;
"(C) comes from a one-parent household; or
"(D) is pregnant or is a mother of a child.
"(d)
"(A) shall consult with the Consortium on Adolescent Pregnancy;
"(B) shall consider—
"(i) the rate of teenage pregnancy in each State,
"(ii) the teenage school dropout rate in each State,
"(iii) the incidence of teenage substance abuse in each State, and
"(iv) the incidence of teenage suicide in each State; and
"(C) shall give priority to States whose applications—
"(i) demonstrate a current strong State commitment aimed at reducing teenage pregnancy, suicide, drug abuse, and school dropout;
"(ii) contain a 'State support agreement' signed by the Governor, the State School Commissioner, the State Department of Human Services, and the State Department of Education, pledging their commitment to the project;
"(iii) describe facilities and services to be made available by the State to assist in carrying out the project; and
"(iv) indicate a demonstrably high rate of alcoholism among its residents.
"(2) Of the States selected to participate in the demonstration projects conducted under this section—
"(A) one shall be a geographically small State with a population of less than 1,250,000;
"(B) one shall be a State with a population of over 20,000,000; and
"(C) two shall be States with populations of more than 1,000,000 but less than 20,000,000.
"(e)
"(2) Not later than October 1, 1992, the Secretary shall submit to the Congress a report containing a summary of the evaluations conducted by States pursuant to the plans described in paragraph (1).
"(f)
"(2) Two-fifths of the total amounts appropriated pursuant to this section for any fiscal year for each State conducting a demonstration project shall be expended by such State for the provision of services and facilities within the State's designated peripheral area, and 5 percent of such two-fifths shall be set aside for the conduct of the State's evaluation as provided for in subsection (e).
"(g)
"(h)
Continuation of Federal Financial Participation in Experimental, Pilot, or Demonstration Projects Approved Before October 1, 1973, for Period On-And-After December 31, 1973, Without Denial or Reduction on Account of Subchapter XVI Provisions for Supplemental Security Income for the Aged, Blind and Disabled; Waiver of Subchapter XVI Restrictions for Individuals; Federal Payments of Non-Federal Share as Supplementary Payments
"(a) If any State (other than the Commonwealth of Puerto Rico, the Virgin Islands, or Guam) has any experimental, pilot, or demonstration project (referred to in section 1115 of the Social Security Act [
"(1) which (prior to October 1, 1973) has been approved by the Secretary of Health, Education, and Welfare [now Health and Human Services] (hereinafter in this section referred to as the 'Secretary'), for a period which ends on or after December 31, 1973, as being a project with respect to which the authority conferred upon him by subsection (a) or (b) of such section 1115 [
"(2) with respect to the costs of which Federal financial participation would (except for the provisions of this section) be denied or reduced on account of the enactment of section 301 of the Social Security Amendments of 1972 [enacting subchapter XVI of this chapter],
then, for any period (after December 31, 1973) with respect to which such project is approved by the Secretary, Federal financial participation in the costs of such project shall be continued in like manner as if—
"(3) such section 301 [enacting subchapter XVI of this chapter] had not been enacted, and
"(4) such State (for the month of January 1974 and any month thereafter) continued to have in effect the State plan (approved under title XVI [
"(b) With respect to individuals—
"(1) who are participants in any project to which the provisions of subsection (a) are applicable, and
"(2) with respect to whom supplemental security income benefits are (or would, except for their participation in such project, be) payable under title XVI of the Social Security Act, or who meet the requirements for aid or assistance under a State plan approved under title I, X, XIV, or XVI of the Social Security Act of the State in which such project is conducted (as such State plan was in effect for July 1973),
the Secretary may waive such requirements of title XVI of such Act (as enacted by section 301 of the Social Security Amendments of 1972) to such extent as he determines to be necessary to the successful operation of such project.
"(c) In the case of any State which has entered into an agreement with the Secretary under section 1616 of the Social Security Act [
"(1) be paid, from time to time, to such State by the Secretary, and
"(2) shall, for purposes of section 1616(d) of the Social Security Act [
§1315a. Center for Medicare and Medicaid Innovation
(a) Center for Medicare and Medicaid Innovation established
(1) In general
There is created within the Centers for Medicare & Medicaid Services a Center for Medicare and Medicaid Innovation (in this section referred to as the "CMI") to carry out the duties described in this section. The purpose of the CMI is to test innovative payment and service delivery models to reduce program expenditures under the applicable subchapters while preserving or enhancing the quality of care furnished to individuals under such subchapters. In selecting such models, the Secretary shall give preference to models that also improve the coordination, quality, and efficiency of health care services furnished to applicable individuals defined in paragraph (4)(A).
(2) Deadline
The Secretary shall ensure that the CMI is carrying out the duties described in this section by not later than January 1, 2011.
(3) Consultation
In carrying out the duties under this section, the CMI shall consult representatives of relevant Federal agencies, and clinical and analytical experts with expertise in medicine and health care management. The CMI shall use open door forums or other mechanisms to seek input from interested parties.
(4) Definitions
In this section:
(A) Applicable individual
The term "applicable individual" means—
(i) an individual who is entitled to, or enrolled for, benefits under part A of subchapter XVIII or enrolled for benefits under part B of such subchapter;
(ii) an individual who is eligible for medical assistance under subchapter XIX, under a State plan or waiver; or
(iii) an individual who meets the criteria of both clauses (i) and (ii).
(B) Applicable subchapter
The term "applicable subchapter" means subchapter XVIII, subchapter XIX, or both.
(5) Testing within certain geographic areas
For purposes of testing payment and service delivery models under this section, the Secretary may elect to limit testing of a model to certain geographic areas.
(b) Testing of models (phase I)
(1) In general
The CMI shall test payment and service delivery models in accordance with selection criteria under paragraph (2) to determine the effect of applying such models under the applicable subchapter (as defined in subsection (a)(4)(B)) on program expenditures under such subchapters and the quality of care received by individuals receiving benefits under such subchapter.
(2) Selection of models to be tested
(A) In general
The Secretary shall select models to be tested from models where the Secretary determines that there is evidence that the model addresses a defined population for which there are deficits in care leading to poor clinical outcomes or potentially avoidable expenditures. The Secretary shall focus on models expected to reduce program costs under the applicable subchapter while preserving or enhancing the quality of care received by individuals receiving benefits under such subchapter. The models selected under this subparagraph may include, but are not limited to, the models described in subparagraph (B).
(B) Opportunities
The models described in this subparagraph are the following models:
(i) Promoting broad payment and practice reform in primary care, including patient-centered medical home models for high-need applicable individuals, medical homes that address women's unique health care needs, and models that transition primary care practices away from fee-for-service based reimbursement and toward comprehensive payment or salary-based payment.
(ii) Contracting directly with groups of providers of services and suppliers to promote innovative care delivery models, such as through risk-based comprehensive payment or salary-based payment.
(iii) Utilizing geriatric assessments and comprehensive care plans to coordinate the care (including through interdisciplinary teams) of applicable individuals with multiple chronic conditions and at least one of the following:
(I) An inability to perform 2 or more activities of daily living.
(II) Cognitive impairment, including dementia.
(iv) Promote 1 care coordination between providers of services and suppliers that transition health care providers away from fee-for-service based reimbursement and toward salary-based payment.
(v) Supporting care coordination for chronically-ill applicable individuals at high risk of hospitalization through a health information technology-enabled provider network that includes care coordinators, a chronic disease registry, and home tele-health technology.
(vi) Varying payment to physicians who order advanced diagnostic imaging services (as defined in
(vii) Utilizing medication therapy management services, such as those described in
(viii) Establishing community-based health teams to support small-practice medical homes by assisting the primary care practitioner in chronic care management, including patient self-management, activities.
(ix) Assisting applicable individuals in making informed health care choices by paying providers of services and suppliers for using patient decision-support tools, including tools that meet the standards developed and identified under
(x) Allowing States to test and evaluate fully integrating care for dual eligible individuals in the State, including the management and oversight of all funds under the applicable subchapters with respect to such individuals.
(xi) Allowing States to test and evaluate systems of all-payer payment reform for the medical care of residents of the State, including dual eligible individuals.
(xii) Aligning nationally recognized, evidence-based guidelines of cancer care with payment incentives under subchapter XVIII in the areas of treatment planning and follow-up care planning for applicable individuals described in clause (i) or (iii) of subsection (a)(4)(A) with cancer, including the identification of gaps in applicable quality measures.
(xiii) Improving post-acute care through continuing care hospitals that offer inpatient rehabilitation, long-term care hospitals, and home health or skilled nursing care during an inpatient stay and the 30 days immediately following discharge.
(xiv) Funding home health providers who offer chronic care management services to applicable individuals in cooperation with interdisciplinary teams.
(xv) Promoting improved quality and reduced cost by developing a collaborative of high-quality, low-cost health care institutions that is responsible for—
(I) developing, documenting, and disseminating best practices and proven care methods;
(II) implementing such best practices and proven care methods within such institutions to demonstrate further improvements in quality and efficiency; and
(III) providing assistance to other health care institutions on how best to employ such best practices and proven care methods to improve health care quality and lower costs.
(xvi) Facilitate inpatient care, including intensive care, of hospitalized applicable individuals at their local hospital through the use of electronic monitoring by specialists, including intensivists and critical care specialists, based at integrated health systems.
(xvii) Promoting greater efficiencies and timely access to outpatient services (such as outpatient physical therapy services) through models that do not require a physician or other health professional to refer the service or be involved in establishing the plan of care for the service, when such service is furnished by a health professional who has the authority to furnish the service under existing State law.
(xviii) Establishing comprehensive payments to Healthcare Innovation Zones, consisting of groups of providers that include a teaching hospital, physicians, and other clinical entities, that, through their structure, operations, and joint-activity deliver a full spectrum of integrated and comprehensive health care services to applicable individuals while also incorporating innovative methods for the clinical training of future health care professionals.
(xix) Utilizing, in particular in entities located in medically underserved areas and facilities of the Indian Health Service (whether operated by such Service or by an Indian tribe or tribal organization (as those terms are defined in
(I) in treating behavioral health issues (such as post-traumatic stress disorder) and stroke; and
(II) to improve the capacity of non-medical providers and non-specialized medical providers to provide health services for patients with chronic complex conditions.
(xx) Utilizing a diverse network of providers of services and suppliers to improve care coordination for applicable individuals described in subsection (a)(4)(A)(i) with 2 or more chronic conditions and a history of prior-year hospitalization through interventions developed under the Medicare Coordinated Care Demonstration Project under section 4016 of the Balanced Budget Act of 1997 (
(xxi) Focusing primarily on physicians' services (as defined in
(xxii) Focusing on practices of 15 or fewer professionals.
(xxiii) Focusing on risk-based models for small physician practices which may involve two-sided risk and prospective patient assignment, and which examine risk-adjusted decreases in mortality rates, hospital readmissions rates, and other relevant and appropriate clinical measures.
(xxiv) Focusing primarily on subchapter XIX, working in conjunction with the Center for Medicaid and CHIP Services.
(xxv) Providing, for the adoption and use of certified EHR technology (as defined in
(xxvi) Supporting ways to familiarize individuals with the availability of coverage under part B of subchapter XVIII for qualified psychologist services (as defined in
(xxvii) Exploring ways to avoid unnecessary hospitalizations or emergency department visits for mental and behavioral health services (such as for treating depression) through use of a 24-hour, 7-day a week help line that may inform individuals about the availability of treatment options, including the availability of qualified psychologist services (as defined in
(C) Additional factors for consideration
In selecting models for testing under subparagraph (A), the CMI may consider the following additional factors:
(i) Whether the model includes a regular process for monitoring and updating patient care plans in a manner that is consistent with the needs and preferences of applicable individuals.
(ii) Whether the model places the applicable individual, including family members and other informal caregivers of the applicable individual, at the center of the care team of the applicable individual.
(iii) Whether the model provides for in-person contact with applicable individuals.
(iv) Whether the model utilizes technology, such as electronic health records and patient-based remote monitoring systems, to coordinate care over time and across settings.
(v) Whether the model provides for the maintenance of a close relationship between care coordinators, primary care practitioners, specialist physicians, community-based organizations, and other providers of services and suppliers.
(vi) Whether the model relies on a team-based approach to interventions, such as comprehensive care assessments, care planning, and self-management coaching.
(vii) Whether, under the model, providers of services and suppliers are able to share information with patients, caregivers, and other providers of services and suppliers on a real time basis.
(viii) Whether the model demonstrates effective linkage with other public sector payers, private sector payers, or statewide payment models.
(3) Budget neutrality
(A) Initial period
The Secretary shall not require, as a condition for testing a model under paragraph (1), that the design of such model ensure that such model is budget neutral initially with respect to expenditures under the applicable subchapter.
(B) Termination or modification
The Secretary shall terminate or modify the design and implementation of a model unless the Secretary determines (and the Chief Actuary of the Centers for Medicare & Medicaid Services, with respect to program spending under the applicable subchapter, certifies), after testing has begun, that the model is expected to—
(i) improve the quality of care (as determined by the Administrator of the Centers for Medicare & Medicaid Services) without increasing spending under the applicable subchapter;
(ii) reduce spending under the applicable subchapter without reducing the quality of care; or
(iii) improve the quality of care and reduce spending.
Such termination may occur at any time after such testing has begun and before completion of the testing.
(4) Evaluation
(A) In general
The Secretary shall conduct an evaluation of each model tested under this subsection. Such evaluation shall include an analysis of—
(i) the quality of care furnished under the model, including the measurement of patient-level outcomes and patient-centeredness criteria determined appropriate by the Secretary; and
(ii) the changes in spending under the applicable subchapters by reason of the model.
(B) Information
The Secretary shall make the results of each evaluation under this paragraph available to the public in a timely fashion and may establish requirements for States and other entities participating in the testing of models under this section to collect and report information that the Secretary determines is necessary to monitor and evaluate such models.
(C) Measure selection
To the extent feasible, the Secretary shall select measures under this paragraph that reflect national priorities for quality improvement and patient-centered care consistent with the measures described in 2 1395aaa(b)(7)(B) of this title.
(c) Expansion of models (phase II)
Taking into account the evaluation under subsection (b)(4), the Secretary may, through rulemaking, expand (including implementation on a nationwide basis) the duration and the scope of a model that is being tested under subsection (b) or a demonstration project under
(1) the Secretary determines that such expansion is expected to—
(A) reduce spending under applicable 3 subchapter without reducing the quality of care; or
(B) improve the quality of patient care without increasing spending;
(2) the Chief Actuary of the Centers for Medicare & Medicaid Services certifies that such expansion would reduce (or would not result in any increase in) net program spending under applicable subchapters; and
(3) the Secretary determines that such expansion would not deny or limit the coverage or provision of benefits under the applicable subchapter for applicable individuals.
In determining which models or demonstration projects to expand under the preceding sentence, the Secretary shall focus on models and demonstration projects that improve the quality of patient care and reduce spending.
(d) Implementation
(1) Waiver authority
The Secretary may waive such requirements of subchapters XI and XVIII and of sections 1396a(a)(1), 1396a(a)(13), 1396b(m)(2)(A)(iii), and 1396u–4 (other than subsections (b)(1)(A) and (c)(5) of such section) of this title as may be necessary solely for purposes of carrying out this section with respect to testing models described in subsection (b).
(2) Limitations on review
There shall be no administrative or judicial review under
(A) the selection of models for testing or expansion under this section;
(B) the selection of organizations, sites, or participants to test those models selected;
(C) the elements, parameters, scope, and duration of such models for testing or dissemination;
(D) determinations regarding budget neutrality under subsection (b)(3);
(E) the termination or modification of the design and implementation of a model under subsection (b)(3)(B); and
(F) determinations about expansion of the duration and scope of a model under subsection (c), including the determination that a model is not expected to meet criteria described in paragraph (1) or (2) of such subsection.
(3) Administration
(e) Application to CHIP
The Center may carry out activities under this section with respect to subchapter XXI in the same manner as provided under this section with respect to the program under the applicable subchapters.
(f) Funding
(1) In general
There are appropriated, from amounts in the Treasury not otherwise appropriated—
(A) $5,000,000 for the design, implementation, and evaluation of models under subsection (b) for fiscal year 2010;
(B) $10,000,000,000 for the activities initiated under this section for the period of fiscal years 2011 through 2019; and
(C) the amount described in subparagraph (B) for the activities initiated under this section for each subsequent 10-year fiscal period (beginning with the 10-year fiscal period beginning with fiscal year 2020).
Amounts appropriated under the preceding sentence shall remain available until expended.
(2) Use of certain funds
Out of amounts appropriated under subparagraphs (B) and (C) of paragraph (1), not less than $25,000,000 shall be made available each such fiscal year to design, implement, and evaluate models under subsection (b).
(g) Report to Congress
Beginning in 2012, and not less than once every other year thereafter, the Secretary shall submit to Congress a report on activities under this section. Each such report shall describe the models tested under subsection (b), including the number of individuals described in subsection (a)(4)(A)(i) and of individuals described in subsection (a)(4)(A)(ii) participating in such models and payments made under applicable subchapters for services on behalf of such individuals, any models chosen for expansion under subsection (c), and the results from evaluations under subsection (b)(4). In addition, each such report shall provide such recommendations as the Secretary determines are appropriate for legislative action to facilitate the development and expansion of successful payment models.
(Aug. 14, 1935, ch. 531, title XI, §1115A, as added and amended
Editorial Notes
References in Text
Section 4016 of the Balanced Budget Act of 1997, referred to in subsec. (b)(2)(B)(xx), is section 4016 of
Amendments
2018—Subsec. (b)(2)(B)(xxv).
Subsec. (b)(2)(B)(xxvi), (xxvii).
2015—Subsec. (b)(2)(B)(xxi) to (xxiv).
Subsec. (b)(2)(C)(viii).
Subsec. (d)(1).
2010—Subsec. (a)(5).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B)(xix), (xx).
Subsec. (b)(2)(C)(viii).
Subsec. (b)(4)(C).
Subsec. (c).
Subsec. (c)(1)(B).
Subsec. (c)(2).
Subsec. (c)(3).
Statutory Notes and Related Subsidiaries
Construction Regarding Telehealth Services
Medicaid Global Payment System Demonstration Project
"(a)
"(b)
"(c)
"(d)
"(1)
"(2)
"(3)
"(e)
"(f)
1 So in original. Probably should be "Promoting".
2 So in original. Probably should be "in section".
3 So in original. Probably should be preceded by "the".
§1315b. Providing Federal coverage and payment coordination for dual eligible beneficiaries
(a) Establishment of Federal Coordinated Health Care Office
(1) In general
Not later than March 1, 2010, the Secretary of Health and Human Services (in this section referred to as the "Secretary") shall establish a Federal Coordinated Health Care Office.
(2) Establishment and reporting to CMS administrator
The Federal Coordinated Health Care Office—
(A) shall be established within the Centers for Medicare & Medicaid Services; and
(B) have as the Office 1 a Director who shall be appointed by, and be in direct line of authority to, the Administrator of the Centers for Medicare & Medicaid Services.
(b) Purpose
The purpose of the Federal Coordinated Health Care Office is to bring together officers and employees of the Medicare and Medicaid programs at the Centers for Medicare & Medicaid Services in order to—
(1) more effectively integrate benefits under the Medicare program under title XVIII of the Social Security Act [
(2) improve the coordination between the Federal Government and States for individuals eligible for benefits under both such programs in order to ensure that such individuals get full access to the items and services to which they are entitled under titles XVIII and XIX of the Social Security Act.
(c) Goals
The goals of the Federal Coordinated Health Care Office are as follows:
(1) Providing dual eligible individuals full access to the benefits to which such individuals are entitled under the Medicare and Medicaid programs.
(2) Simplifying the processes for dual eligible individuals to access the items and services they are entitled to under the Medicare and Medicaid programs.
(3) Improving the quality of health care and long-term services for dual eligible individuals.
(4) Increasing dual eligible individuals' understanding of and satisfaction with coverage under the Medicare and Medicaid programs.
(5) Eliminating regulatory conflicts between rules under the Medicare and Medicaid programs.
(6) Improving care continuity and ensuring safe and effective care transitions for dual eligible individuals.
(7) Eliminating cost-shifting between the Medicare and Medicaid program and among related health care providers.
(8) Improving the quality of performance of providers of services and suppliers under the Medicare and Medicaid programs.
(d) Specific responsibilities
The specific responsibilities of the Federal Coordinated Health Care Office are as follows:
(1) Providing States, specialized MA plans for special needs individuals (as defined in section 1859(b)(6) of the Social Security Act (
(2) Supporting State efforts to coordinate and align acute care and long-term care services for dual eligible individuals with other items and services furnished under the Medicare program.
(3) Providing support for coordination of contracting and oversight by States and the Centers for Medicare & Medicaid Services with respect to the integration of the Medicare and Medicaid programs in a manner that is supportive of the goals described in paragraph (3).2
(4) To consult and coordinate with the Medicare Payment Advisory Commission established under section 1805 of the Social Security Act (
(5) To study the provision of drug coverage for new full-benefit dual eligible individuals (as defined in section 1935(c)(6) of the Social Security Act (
(6) To act as a designated contact for States under subsection (f)(8)(A) of section 1859 of the Social Security Act (
(7) To be responsible, subject to the final approval of the Secretary, for developing regulations and guidance related to the implementation of a unified grievance and appeals process as described in subparagraphs (B) and (C) of section 1859(f)(8) of the Social Security Act (
(8) To be responsible, subject to the final approval of the Secretary, for developing regulations and guidance related to the integration or alignment of policy and oversight under the Medicare program under title XVIII of such Act [
(e) Report
The Secretary shall, as part of the budget transmitted under
(f) Dual eligible individual defined
In this section, the term "dual eligible individual" means an individual who is entitled to, or enrolled for, benefits under part A of title XVIII of the Social Security Act [
(
Editorial Notes
References in Text
The Social Security Act, referred to in subsecs. (b), (d)(4), (8), and (f), is act Aug. 14, 1935, ch. 531,
Codification
Section was enacted as part of the Patient Protection and Affordable Care Act, and not as part of the Social Security Act which comprises this chapter.
Amendments
2018—Subsec. (d)(6) to (8).
2 So in original. Probably should be "subsection (c)."
3 So in original. Another closing parenthesis probably should precede the comma.
§1316. Administrative and judicial review of public assistance determinations
(a) Determination of conformity with requirements for approval; petition for reconsideration; hearing; time limitations; review by court of appeals
(1) Whenever a State plan is submitted to the Secretary by a State for approval under subchapter I, X, XIV, XVI, or XIX, he shall, not later than 90 days after the date the plan is submitted to him, make a determination as to whether it conforms to the requirements for approval under such subchapter. The 90-day period provided herein may be extended by written agreement of the Secretary and the affected State.
(2) Any State dissatisfied with a determination of the Secretary under paragraph (1) of this subsection with respect to any plan may, within 60 days after it has been notified of such determination, file a petition with the Secretary for reconsideration of the issue of whether such plan conforms to the requirements for approval under such subchapter. Within 30 days after receipt of such a petition, the Secretary shall notify the State of the time and place at which a hearing will be held for the purpose of reconsidering such issue. Such hearing shall be held not less than 20 days nor more than 60 days after the date notice of such hearing is furnished to such State, unless the Secretary and such State agree in writing to holding the hearing at another time. The Secretary shall affirm, modify, or reverse his original determination within 60 days of the conclusion of the hearing.
(3) Any State which is dissatisfied with a final determination made by the Secretary on such a reconsideration or a final determination of the Secretary under
(4) The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify his previous action, and shall certify to the court the transcript and record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.
(5) The court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in
(b) Amendment of plans
For the purposes of subsection (a), any amendment of a State plan approved under subchapter I, X, XIV, XVI, or XIX, may, at the option of the State, be treated as the submission of a new State plan.
(c) Restitution when Secretary reverses his determination
Action pursuant to an initial determination of the Secretary described in subsection (a) shall not be stayed pending reconsideration, but in the event that the Secretary subsequently determines that his initial determination was incorrect he shall certify restitution forthwith in a lump sum of any funds incorrectly withheld or otherwise denied.
(d) Disallowance of items covered under other subchapters
Whenever the Secretary determines that any item or class of items on account of which Federal financial participation is claimed under subchapter I, X, XIV,1 XVI, shall be disallowed for such participation, the State shall be entitled to and upon request shall receive a reconsideration of the disallowance.
(e) Disallowance of items covered under subchapter XIX
(1) Whenever the Secretary determines that any item or class of items on account of which Federal financial participation is claimed under subchapter XIX shall be disallowed for such participation, the State shall be entitled to and upon request shall receive a reconsideration of the disallowance, provided that such request is made during the 60-day period that begins on the date the State receives notice of the disallowance.
(2)(A) A State may appeal a disallowance of a claim for federal 2 financial participation under subchapter XIX by the Secretary, or an unfavorable reconsideration of a disallowance, during the 60-day period that begins on the date the State receives notice of the disallowance or of the unfavorable reconsideration, in whole or in part, to the Departmental Appeals Board, established in the Department of Health and Human Services (in this paragraph referred to as the "Board"), by filing a notice of appeal with the Board.
(B) The Board shall consider a State's appeal of a disallowance of such a claim (or of an unfavorable reconsideration of a disallowance) on the basis of such documentation as the State may submit and as the Board may require to support the final decision of the Board. In deciding whether to uphold a disallowance of such a claim or any portion thereof, the Board shall be bound by all applicable laws and regulations and shall conduct a thorough review of the issues, taking into account all relevant evidence. The Board's decision of an appeal under subparagraph (A) shall be the final decision of the Secretary and shall be subject to reconsideration by the Board only upon motion of either party filed during the 60-day period that begins on the date of the Board's decision or to judicial review in accordance with subparagraph (C).
(C) A State may obtain judicial review of a decision of the Board by filing an action in any United States District Court located within the appealing State (or, if several States jointly appeal the disallowance of claims for Federal financial participation under
(i) if no motion for reconsideration was filed within the 60-day period specified in subparagraph (B), during such 60-day period; or
(ii) if such a motion was filed within such period, during the 60-day period that begins on the date of the Board's decision on such motion.
(Aug. 14, 1935, ch. 531, title XI, §1116, as added
Editorial Notes
References in Text
Amendments
2008—Subsec. (d).
Subsec. (e).
1996—Subsec. (a)(1).
Subsec. (a)(3).
Subsecs. (b), (d).
1984—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b).
Subsec. (d).
1981—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b).
Subsec. (d).
1975—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b).
Subsec. (d).
1973—Subsec. (a).
Subsecs. (b), (d).
1968—Subsec. (a)(1).
Subsecs. (b), (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by section 2354(c)(2) of
Amendment by section 2663(e)(6) of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1975 Amendment
Amendment by
Effective Date of 1973 Amendment
Amendment by
Effective Date
1 So in original. Probably should be followed by "or".
2 So in original. Probably should be capitalized.
§1317. Appointment of the Administrator and Chief Actuary of the Centers for Medicare & Medicaid Services
(a) The Administrator of the Centers for Medicare & Medicaid Services shall be appointed by the President by and with the advice and consent of the Senate.
(b)(1) There is established in the Centers for Medicare & Medicaid Services the position of Chief Actuary. The Chief Actuary shall be appointed by, and in direct line of authority to, the Administrator of such Centers. The Chief Actuary shall be appointed from among individuals who have demonstrated, by their education and experience, superior expertise in the actuarial sciences. The Chief Actuary shall exercise such duties as are appropriate for the office of the Chief Actuary and in accordance with professional standards of actuarial independence. The Chief Actuary may be removed only for cause.
(2) The Chief Actuary shall be compensated at the highest rate of basic pay for the Senior Executive Service under
(3) In the office of the Chief Actuary there shall be an actuary whose duties relate exclusively to the programs under parts C and D of subchapter XVIII and related provisions of such subchapter.
(Aug. 14, 1935, ch. 531, title XI, §1117, as added
Editorial Notes
Prior Provisions
A prior section 1317, act Aug. 14, 1935, ch. 531, title XI, §1117, as added July 30, 1965,
Amendments
2003—
Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(3).
1997—
Statutory Notes and Related Subsidiaries
Effective Date
§1318. Alternative Federal payment with respect to public assistance expenditures
In the case of any State which has in effect a plan approved under subchapter XIX for any calendar quarter, the total of the payments to which such State is entitled for such quarter, and for each succeeding quarter in the same fiscal year (which for purposes of this section means the 4 calendar quarters ending with September 30), under paragraphs (1) and (2) of sections 303(a),1 1203(a),1 1353(a),1 and 1383(a) 1 of this title shall, at the option of the State, be determined by application of the Federal medical assistance percentage (as defined in
(Aug. 14, 1935, ch. 531, title XI, §1118, as added
Editorial Notes
References in Text
Paragraph (1) of
Amendments
1996—
1988—
1980—
1978—
1976—
1968—
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
1 See References in Text note below.
§1319. Federal participation in payments for repairs to home owned by recipient of aid or assistance
In the case of an expenditure for repairing the home owned by an individual who is receiving aid or assistance, other than medical assistance to the aged, under a State plan approved under subchapter I, X, XIV, or XVI, if—
(1) the State agency or local agency administering the plan approved under such subchapter has made a finding (prior to making such expenditure) that (A) such home is so defective that continued occupancy is unwarranted, (B) unless repairs are made to such home, rental quarters will be necessary for such individual, and (C) the cost of rental quarters to take care of the needs of such individual (including his spouse living with him in such home and any other individual whose needs were taken into account in determining the need of such individual) would exceed (over such time as the Secretary may specify) the cost of repairs needed to make such home habitable together with other costs attributable to continued occupancy of such home, and
(2) no such expenditures were made for repairing such home pursuant to any prior finding under this section,
the amount paid to any such State for any quarter under
(Aug. 14, 1935, ch. 531, title XI, §1119, as added
Editorial Notes
References in Text
Amendments
1996—
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
Effective Date
§1320. Approval of certain projects
No payment shall be made under this chapter with respect to any experimental, pilot, demonstration, or other project all or any part of which is wholly financed with Federal funds made available under this chapter (without any State, local, or other non-Federal financial participation) unless such project shall have been personally approved by the Secretary or Deputy Secretary of Health and Human Services.
(Aug. 14, 1935, ch. 531, title XI, §1120, as added
Editorial Notes
Amendments
1990—
1984—
1982—
1975—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1990 Amendment; Continued Service by Incumbents
Amendment by
Effective Date of 1984 Amendment
Amendment by
§1320a. Uniform reporting systems for health services facilities and organizations
(a) Establishment; criteria for regulations; requirements for hospitals
For the purposes of reporting the cost of services provided by, of planning, and of measuring and comparing the efficiency of and effective use of services in, hospitals, skilled nursing facilities, intermediate care facilities, home health agencies, health maintenance organizations, and other types of health services facilities and organizations to which payment may be made under this chapter, the Secretary shall establish by regulation, for each such type of health services facility or organization, a uniform system for the reporting by a facility or organization of that type of the following information:
(1) The aggregate cost of operation and the aggregate volume of services.
(2) The costs and volume of services for various functional accounts and subaccounts.
(3) Rates, by category of patient and class of purchaser.
(4) Capital assets, as defined by the Secretary, including (as appropriate) capital funds, debt service, lease agreements used in lieu of capital funds, and the value of land, facilities, and equipment.
(5) Discharge and bill data.
The uniform reporting system for a type of health services facility or organization shall provide for appropriate variation in the application of the system to different classes of facilities or organizations within that type and shall be established, to the extent practicable, consistent with the cooperative system for producing comparable and uniform health information and statistics described in
(b) Monitoring, etc., of systems by Secretary
The Secretary shall—
(1) monitor the operation of the systems established under subsection (a);
(2) assist with and support demonstrations and evaluations of the effectiveness and cost of the operation of such systems and encourage State adoption of such systems; and
(3) periodically revise such systems to improve their effectiveness and diminish their cost.
(c) Availability of information to appropriate agencies and organizations
The Secretary shall provide information obtained through use of the uniform reporting systems described in subsection (a) in a useful manner and format to appropriate agencies and organizations, including health systems agencies (designated under section 300l–4 1 of this title) and State health planning and development agencies (designated under section 300m 1 of this title), as may be necessary to carry out such agencies' and organizations' functions.
(Aug. 14, 1935, ch. 531, title XI, §1121, as added
Editorial Notes
References in Text
Prior Provisions
A prior section 1320a, act Aug. 14, 1935, ch. 531, title XI, §1121, as added Jan. 2, 1968,
Section was additionally amended by
Statutory Notes and Related Subsidiaries
Time Periods for Establishment of Uniform Reporting Systems; Consultations With Interested Parties
1 See References in Text note below.
§1320a–1. Limitation on use of Federal funds for capital expenditures
(a) Use of reimbursement for planning activities for health services and facilities
The purpose of this section is to assure that Federal funds appropriated under subchapters XVIII and XIX are not used to support unnecessary capital expenditures made by or on behalf of health care facilities which are reimbursed under any of such subchapters and that, to the extent possible, reimbursement under such subchapters shall support planning activities with respect to health services and facilities in the various States.
(b) Agreement between Secretary and State for submission of proposed capital expenditures related to health care facilities and procedures for appeal from recommendations
The Secretary, after consultation with the Governor (or other chief executive officer) and with appropriate local public officials, shall make an agreement with any State which is able and willing to do so under which a designated planning agency (which shall be an agency described in clause (ii) of subsection (d)(1)(B) that has a governing body or advisory board at least half of whose members represent consumer interests) will—
(1) make, and submit to the Secretary together with such supporting materials as he may find necessary, findings and recommendations with respect to capital expenditures proposed by or on behalf of any health care facility in such State within the field of its responsibilities,
(2) receive from other agencies described in clause (ii) of subsection (d)(1)(B), and submit to the Secretary together with such supporting material as he may find necessary, the findings and recommendations of such other agencies with respect to capital expenditures proposed by or on behalf of health care facilities in such State within the fields of their respective responsibilities, and
(3) establish and maintain procedures pursuant to which a person proposing any such capital expenditure may appeal a recommendation by the designated agency and will be granted an opportunity for a fair hearing by such agency or person other than the designated agency as the Governor (or other chief executive officer) may designate to hold such hearings,
whenever and to the extent that the findings of such designated agency or any such other agency indicate that any such expenditure is not consistent with the standards, criteria, or plans developed pursuant to the Public Health Service Act [
(c) Manner of payment to States for carrying out agreement
The Secretary shall pay any such State from the general fund in the Treasury, in advance or by way of reimbursement as may be provided in the agreement with it (and may make adjustments in such payments on account of overpayments or underpayments previously made), for the reasonable cost of performing the functions specified in subsection (b).
(d) Determination of amount of exclusions from Federal payments
(1) Except as provided in paragraph (2), if the Secretary determines that—
(A) neither the planning agency designated in the agreement described in subsection (b) nor an agency described in clause (ii) of subparagraph (B) of this paragraph had been given notice of any proposed capital expenditure (in accordance with such procedure or in such detail as may be required by such agency) at least 60 days prior to obligation for such expenditure; or
(B)(i) the planning agency so designated or an agency so described had received such timely notice of the intention to make such capital expenditure and had, within a reasonable period after receiving such notice and prior to obligation for such expenditure, notified the person proposing such expenditure that the expenditure would not be in conformity with the standards, criteria, or plans developed by such agency or any other agency described in clause (ii) for adequate health care facilities in such State or in the area for which such other agency has responsibility, and
(ii) the planning agency so designated had, prior to submitting to the Secretary the findings referred to in subsection (b)—
(I) consulted with, and taken into consideration the findings and recommendations of, the State planning agencies established pursuant to sections 314(a) and 604(a) of the Public Health Service Act [
(II) granted to the person proposing such capital expenditure an opportunity for a fair hearing with respect to such findings;
then, for such period as he finds necessary in any case to effectuate the purpose of this section, he shall, in determining the Federal payments to be made under subchapters XVIII and XIX with respect to services furnished in the health care facility for which such capital expenditure is made, not include any amount which is attributable to depreciation, interest on borrowed funds, a return on equity capital (in the case of proprietary facilities), or other expenses related to such capital expenditure. With respect to any organization which is reimbursed on a per capita or a fixed fee or negotiated rate basis, in determining the Federal payments to be made under subchapters XVIII and XIX, the Secretary shall exclude an amount which in his judgment is a reasonable equivalent to the amount which would otherwise be excluded under this subsection if payment were to be made on other than a per capita or a fixed fee or negotiated rate basis.
(2) If the Secretary, after submitting the matters involved to the advisory council established or designated under subsection (i), determines that an exclusion of expenses related to any capital expenditure of any health care facility would discourage the operation or expansion of such facility which has demonstrated to his satisfaction proof of capability to provide comprehensive health care services (including institutional services) efficiently, effectively, and economically, or would otherwise be inconsistent with the effective organization and delivery of health services or the effective administration of subchapter XVIII or XIX, he shall not exclude such expenses pursuant to paragraph (1).
(e) Treatment of lease or comparable arrangement of any facility or equipment for a facility in determining amount of exclusions from Federal payments
Where a person obtains under lease or comparable arrangement any facility or part thereof, or equipment for a facility, which would have been subject to an exclusion under subsection (d) if the person had acquired it by purchase, the Secretary shall (1) in computing such person's rental expense in determining the Federal payments to be made under subchapters XVIII and XIX with respect to services furnished in such facility, deduct the amount which in his judgment is a reasonable equivalent of the amount that would have been excluded if the person had acquired such facility or such equipment by purchase, and (2) in computing such person's return on equity capital deduct any amount deposited under the terms of the lease or comparable arrangement.
(f) Reconsideration by Secretary of determinations
Any person dissatisfied with a determination by the Secretary under this section may within six months following notification of such determination request the Secretary to reconsider such determination. A determination by the Secretary under this section shall not be subject to administrative or judicial review.
(g) "Capital expenditure" defined
For the purposes of this section, a "capital expenditure" is an expenditure which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance and which (1) exceeds $600,000 (or such lesser amount as the State may establish), (2) changes the bed capacity of the facility with respect to which such expenditure is made, or (3) substantially changes the services of the facility with respect to which such expenditure is made. For purposes of clause (1) of the preceding sentence, the cost of the studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition, improvement, expansion, or replacement of the plant and equipment with respect to which such expenditure is made shall be included in determining whether such expenditure exceeds the dollar amount specified in clause (1).
(h) Applicability to Christian Science sanatoriums
The provisions of this section shall not apply to a religious nonmedical health care institution (as defined in
(i) National advisory council; establishment or designation of existing council; functions; consultations with other appropriate national advisory councils; composition; compensation and travel expenses
(1) The Secretary shall establish a national advisory council, or designate an appropriate existing national advisory council, to advise and assist him in the preparation of general regulations to carry out the purposes of this section and on policy matters arising in the administration of this section, including the coordination of activities under this section with those under other parts of this chapter or under other Federal or federally assisted health programs.
(2) The Secretary shall make appropriate provision for consultation between and coordination of the work of the advisory council established or designated under paragraph (1) and the Federal Hospital Council, the National Advisory Health Council, the Health Insurance Benefits Advisory Council, and other appropriate national advisory councils with respect to matters bearing on the purposes and administration of this section and the coordination of activities under this section with related Federal health programs.
(3) If an advisory council is established by the Secretary under paragraph (1), it shall be composed of members who are not otherwise in the regular full-time employ of the United States, and who shall be appointed by the Secretary without regard to the civil service laws from among leaders in the fields of the fundamental sciences, the medical sciences, and the organization, delivery, and financing of health care, and persons who are State or local officials or are active in community affairs or public or civic affairs or who are representative of minority groups. Members of such advisory council, while attending meetings of the council or otherwise serving on business of the council, shall be entitled to receive compensation at rates fixed by the Secretary, but not exceeding the maximum rate specified at the time of such service for grade GS–18 in
(j) Capital expenditure review exception for eligible organization health care facilities
A capital expenditure made by or on behalf of a health care facility shall not be subject to review pursuant to this section if 75 percent of the patients who can reasonably be expected to use the service with respect to which the capital expenditure is made will be individuals enrolled in an eligible organization as defined in
(1) the facilities do not provide common services at the same site (as usually provided by the organization),
(2) the facilities are not available under a contract of reasonable duration,
(3) full and equal medical staff privileges in the facilities are not available,
(4) arrangements with such facilities are not administratively feasible, or
(5) the purchase of such services is more costly than if the organization provided the services directly.
(Aug. 14, 1935, ch. 531, title XI, §1122, as added
Editorial Notes
References in Text
The Public Health Service Act, referred to in subsec. (b), is act July 1, 1944, ch. 373,
Amendments
1997—Subsec. (h).
1984—Subsec. (b).
Subsec. (i)(3).
1983—Subsec. (c).
Subsec. (g).
Subsec. (j).
1982—Subsec. (d)(2).
1981—Subsec. (a).
Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (e).
1979—
1978—Subsecs. (a), (b).
Subsec. (d).
1973—Subsec. (d)(1).
Subsec. (d)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1984 Amendment
"(1) Except as provided in paragraph (2), the amendments made by this section [amending this section and
"(2) The amendments made by paragraphs (1) [amending
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1981 Amendment, Savings, and Transitional Provisions
For effective date, savings, and transitional provisions relating to amendment by
Effective Date
Termination of Advisory Councils
Advisory councils in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is otherwise provided by law. Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is otherwise provided by law. See
References in Other Laws to GS–16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of
Expenditures or Obligations of Health Care Facilities Providing Health Care Services Prior to December 18, 1970; Limitations on Federal Participation
§1320a–1a. Transferred
Editorial Notes
Codification
Section, act Aug. 14, 1935, ch. 531, title XI, §1123, as added Oct. 31, 1994,
§1320a–2. Effect of failure to carry out State plan
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that
(Aug. 14, 1935, ch. 531, title XI, §1123, as added
Editorial Notes
Prior Provisions
A prior section 1320a–2, act Aug. 14, 1935, ch. 531, title XI, §1123, as added Oct. 30, 1972,
Another section 1123 of act Aug. 14, 1935, was renumbered section 1123A, and is classified to
Statutory Notes and Related Subsidiaries
Effective Date
§1320a–2a. Reviews of child and family services programs, and of foster care and adoption assistance programs, for conformity with State plan requirements
(a) In general
The Secretary, in consultation with the State agencies administering the State programs under parts B and E of subchapter IV, shall promulgate regulations for the review of such programs to determine whether such programs are in substantial conformity with—
(1) State plan requirements under such parts B and E,
(2) implementing regulations promulgated by the Secretary, and
(3) the relevant approved State plans.
(b) Elements of review system
The regulations referred to in subsection (a) shall—
(1) specify the timetable for conformity reviews of State programs, including—
(A) an initial review of each State program;
(B) a timely review of a State program following a review in which such program was found not to be in substantial conformity; and
(C) less frequent reviews of State programs which have been found to be in substantial conformity, but such regulations shall permit the Secretary to reinstate more frequent reviews based on information which indicates that a State program may not be in conformity;
(2) specify the requirements subject to review (which shall include determining whether the State program is in conformity with the requirement of
(3) specify the method to be used to determine the amount of any Federal matching funds to be withheld (subject to paragraph (4)) due to the State program's failure to so conform, which ensures that—
(A) such funds will not be withheld with respect to a program, unless it is determined that the program fails substantially to so conform;
(B) such funds will not be withheld for a failure to so conform resulting from the State's reliance upon and correct use of formal written statements of Federal law or policy provided to the State by the Secretary; and
(C) the amount of such funds withheld is related to the extent of the failure to so conform; and
(4) require the Secretary, with respect to any State program found to have failed substantially to so conform—
(A) to afford the State an opportunity to adopt and implement a corrective action plan, approved by the Secretary, designed to end the failure to so conform;
(B) to make technical assistance available to the State to the extent feasible to enable the State to develop and implement such a corrective action plan;
(C) to suspend the withholding of any Federal matching funds under this section while such a corrective action plan is in effect; and
(D) to rescind any such withholding if the failure to so conform is ended by successful completion of such a corrective action plan.
(c) Provisions for administrative and judicial review
The regulations referred to in subsection (a) shall—
(1) require the Secretary, not later than 10 days after a final determination that a program of the State is not in conformity, to notify the State of—
(A) the basis for the determination; and
(B) the amount of the Federal matching funds (if any) to be withheld from the State;
(2) afford the State an opportunity to appeal the determination to the Departmental Appeals Board within 60 days after receipt of the notice described in paragraph (1) (or, if later, after failure to continue or to complete a corrective action plan); and
(3) afford the State an opportunity to obtain judicial review of an adverse decision of the Board, within 60 days after the State receives notice of the decision of the Board, by appeal to the district court of the United States for the judicial district in which the principal or headquarters office of the agency responsible for administering the program is located.
(Aug. 14, 1935, ch. 531, title XI, §1123A, formerly §1123, as added
Editorial Notes
Codification
Section was formerly classified to
Amendments
2006—Subsec. (b)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 2006 Amendment
Amendment by
Effective Date
Regulations
§1320a–3. Disclosure of ownership and related information; procedure; definitions; scope of requirements
(a) In general
(1) The Secretary shall by regulation or by contract provision provide that each disclosing entity (as defined in paragraph (2)) shall—
(A) as a condition of the disclosing entity's participation in, or certification or recertification under, any of the programs established by subchapters V, XVIII, and XIX, or
(B) as a condition for the approval or renewal of a contract or agreement between the disclosing entity and the Secretary or the appropriate State agency under any of the programs established under subchapters V, XVIII, and XIX,
supply the Secretary or the appropriate State agency with full and complete information as to the identity of each person with an ownership or control interest (as defined in paragraph (3)) in the entity or in any subcontractor (as defined by the Secretary in regulations) in which the entity directly or indirectly has a 5 per centum or more ownership interest and supply the Secretary with the 1 both the employer identification number (assigned pursuant to section 6109 of the Internal Revenue Code of 1986) and social security account number (assigned under
(2) As used in this section, the term "disclosing entity" means an entity which is—
(A) a provider of services (as defined in
(B) an entity (other than an individual practitioner or group of practitioners) that furnishes, or arranges for the furnishing of, items or services with respect to which payment may be claimed by the entity under any plan or program established pursuant to subchapter V or under a State plan approved under subchapter XIX; or
(C) a carrier or other agency or organization that is acting as a fiscal intermediary or agent with respect to one or more providers of services (for purposes of part A or part B of subchapter XVIII, or both, or for purposes of a State plan approved under subchapter XIX) pursuant to (i) an agreement under
(3) As used in this section, the term "person with an ownership or control interest" means, with respect to an entity, a person who—
(A)(i) has directly or indirectly (as determined by the Secretary in regulations) an ownership interest of 5 per centum or more in the entity; or
(ii) is the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured (in whole or in part) by the entity or any of the property or assets thereof, which whole or part interest is equal to or exceeds 5 per centum of the total property and assets of the entity; or
(B) is an officer or director of the entity, if the entity is organized as a corporation; or
(C) is a partner in the entity, if the entity is organized as a partnership.
(b) Other disclosing entities
To the extent determined to be feasible under regulations of the Secretary, a disclosing entity shall also include in the information supplied under subsection (a)(1), with respect to each person with an ownership or control interest in the entity, the name of any other disclosing entity with respect to which the person is a person with an ownership or control interest.
(c) Required disclosure of ownership and additional disclosable parties information
(1) Disclosure
A facility shall have the information described in paragraph (2) available—
(A) during the period beginning on March 23, 2010, and ending on the date such information is made available to the public under section 6101(b) of the Patient Protection and Affordable Care Act for submission to the Secretary, the Inspector General of the Department of Health and Human Services, the State in which the facility is located, and the State long-term care ombudsman in the case where the Secretary, the Inspector General, the State, or the State long-term care ombudsman requests such information; and
(B) beginning on the effective date of the final regulations promulgated under paragraph (3)(A), for reporting such information in accordance with such final regulations.
Nothing in subparagraph (A) shall be construed as authorizing a facility to dispose of or delete information described in such subparagraph after the effective date of the final regulations promulgated under paragraph (3)(A).
(2) Information described
(A) In general
The following information is described in this paragraph:
(i) The information described in subsections (a) and (b), subject to subparagraph (C).
(ii) The identity of and information on—
(I) each member of the governing body of the facility, including the name, title, and period of service of each such member;
(II) each person or entity who is an officer, director, member, partner, trustee, or managing employee of the facility, including the name, title, and period of service of each such person or entity; and
(III) each person or entity who is an additional disclosable party of the facility.
(iii) The organizational structure of each additional disclosable party of the facility and a description of the relationship of each such additional disclosable party to the facility and to one another.
(B) Special rule where information is already reported or submitted
To the extent that information reported by a facility to the Internal Revenue Service on Form 990, information submitted by a facility to the Securities and Exchange Commission, or information otherwise submitted to the Secretary or any other Federal agency contains the information described in clauses (i), (ii), or (iii) of subparagraph (A), the facility may provide such Form or such information submitted to meet the requirements of paragraph (1).
(C) Special rule
In applying subparagraph (A)(i)—
(i) with respect to subsections (a) and (b), "ownership or control interest" shall include direct or indirect interests, including such interests in intermediate entities; and
(ii) subsection (a)(3)(A)(ii) shall include the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured, in whole or in part, by the entity or any of the property or assets thereof, if the interest is equal to or exceeds 5 percent of the total property or assets of the entirety.
(3) Reporting
(A) In general
Not later than the date that is 2 years after March 23, 2010, the Secretary shall promulgate final regulations requiring, effective on the date that is 90 days after the date on which such final regulations are published in the Federal Register, a facility to report the information described in paragraph (2) to the Secretary in a standardized format, and such other regulations as are necessary to carry out this subsection. Such final regulations shall ensure that the facility certifies, as a condition of participation and payment under the program under subchapter XVIII or XIX, that the information reported by the facility in accordance with such final regulations is, to the best of the facility's knowledge, accurate and current.
(B) Guidance
The Secretary shall provide guidance and technical assistance to States on how to adopt the standardized format under subparagraph (A).
(4) No effect on existing reporting requirements
Nothing in this subsection shall reduce, diminish, or alter any reporting requirement for a facility that is in effect as of March 23, 2010.
(5) Definitions
In this subsection:
(A) Additional disclosable party
The term "additional disclosable party" means, with respect to a facility, any person or entity who—
(i) exercises operational, financial, or managerial control over the facility or a part thereof, or provides policies or procedures for any of the operations of the facility, or provides financial or cash management services to the facility;
(ii) leases or subleases real property to the facility, or owns a whole or part interest equal to or exceeding 5 percent of the total value of such real property; or
(iii) provides management or administrative services, management or clinical consulting services, or accounting or financial services to the facility.
(B) Facility
The term "facility" means a disclosing entity which is—
(i) a skilled nursing facility (as defined in
(ii) a nursing facility (as defined in
(C) Managing employee
The term "managing employee" means, with respect to a facility, an individual (including a general manager, business manager, administrator, director, or consultant) who directly or indirectly manages, advises, or supervises any element of the practices, finances, or operations of the facility.
(D) Organizational structure
The term "organizational structure" means, in the case of—
(i) a corporation, the officers, directors, and shareholders of the corporation who have an ownership interest in the corporation which is equal to or exceeds 5 percent;
(ii) a limited liability company, the members and managers of the limited liability company (including, as applicable, what percentage each member and manager has of the ownership interest in the limited liability company);
(iii) a general partnership, the partners of the general partnership;
(iv) a limited partnership, the general partners and any limited partners of the limited partnership who have an ownership interest in the limited partnership which is equal to or exceeds 10 percent;
(v) a trust, the trustees of the trust;
(vi) an individual, contact information for the individual; and
(vii) any other person or entity, such information as the Secretary determines appropriate.
(Aug. 14, 1935, ch. 531, title XI, §1124, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsec. (a)(1), is classified generally to Title 26, Internal Revenue Code.
Section 6101(b) of the Patient Protection and Affordable Care Act, referred to in subsec. (c)(1)(A), is section 6101(b) of
Amendments
2010—Subsec. (c).
1997—Subsec. (a)(1).
Subsec. (a)(2)(A).
1987—Subsec. (a)(3)(A)(ii).
1981—Subsec. (a)(1).
Subsec. (a)(2)(D).
1980—Subsec. (a)(3)(A)(ii).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
"(1)
"(2)
Amendment by section 4707(c) of
Effective Date of 1987 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date
Public Availability of Information
Report on Confidentiality of Social Security Account Numbers
1 So in original. The word "the" probably should not appear.
§1320a–3a. Disclosure requirements for other providers under part B of Medicare
(a) Disclosure required to receive payment
No payment may be made under part B of subchapter XVIII for items or services furnished by any disclosing part B provider unless such provider has provided the Secretary with full and complete information—
(1) on the identity of each person with an ownership or control interest in the provider or in any subcontractor (as defined by the Secretary in regulations) in which the provider directly or indirectly has a 5 percent or more ownership interest;
(2) with respect to any person identified under paragraph (1) or any managing employee of the provider—
(A) on the identity of any other entities providing items or services for which payment may be made under subchapter XVIII with respect to which such person or managing employee is a person with an ownership or control interest at the time such information is supplied or at any time during the 3-year period ending on the date such information is supplied, and
(B) as to whether any penalties, assessments, or exclusions have been assessed against such person or managing employee under
(3) including the employer identification number (assigned pursuant to section 6109 of the Internal Revenue Code of 1986) and social security account number (assigned under
(b) Updates to information supplied
A disclosing part B provider shall notify the Secretary of any changes or updates to the information supplied under subsection (a) not later than 180 days after such changes or updates take effect.
(c) Verification
(1) Transmittal by HHS
The Secretary shall transmit—
(A) to the Commissioner of Social Security information concerning each social security account number (assigned under
(B) to the Secretary of the Treasury information concerning each employer identification number (assigned pursuant to section 6109 of the Internal Revenue Code of 1986),
supplied to the Secretary pursuant to subsection (a)(3) or section 1320a–3(c) 1 of this title to the extent necessary for verification of such information in accordance with paragraph (2).
(2) Verification
The Commissioner of Social Security and the Secretary of the Treasury shall verify the accuracy of, or correct, the information supplied by the Secretary to such official pursuant to paragraph (1), and shall report such verifications or corrections to the Secretary.
(3) Fees for verification
The Secretary shall reimburse the Commissioner and Secretary of the Treasury, at a rate negotiated between the Secretary and such official, for the costs incurred by such official in performing the verification and correction services described in this subsection.
(d) Definitions
For purposes of this section—
(1) the term "disclosing part B provider" means any entity receiving payment on an assignment-related basis (or, for purposes of subsection (a)(3), any entity receiving payment) for furnishing items or services for which payment may be made under part B of subchapter XVIII, except that such term does not include an entity described in
(2) the term "managing employee" means, with respect to a provider, a person described in
(3) the term "person with an ownership or control interest" means, with respect to a provider—
(A) a person described in
(B) a person who has one of the 5 largest direct or indirect ownership or control interests in the provider.
(Aug. 14, 1935, ch. 531, title XI, §1124A, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsecs. (a)(3) and (c)(1)(B), is classified generally to Title 26, Internal Revenue Code.
Amendments
1997—Subsec. (a)(3).
Subsec. (c).
Subsec. (c)(1).
Subsec. (d).
1994—Subsec. (a)(2)(A).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by section 4313(b) of
Effective Date of 1994 Amendment
Effective Date
"(A) January 1, 1993, in the case of items or services furnished by a provider who, on or before the date of the enactment of this Act [Nov. 5, 1990], has furnished items or services for which payment may be made under part B of title XVIII of the Social Security Act [
"(B) January 1, 1992, in the case of items or services furnished by any other provider."
Report on Confidentiality of Social Security Account Numbers
Before amendment by
1 See References in Text note below.
§1320a–4. Issuance of subpenas by Comptroller General
(a) Authorization; scope; service and proof of service
For the purpose of any audit, investigation, examination, analysis, review, evaluation, or other function authorized by law with respect to any program authorized under this chapter, the Comptroller General of the United States shall have power to sign and issue subpenas to any person requiring the production of any pertinent books, records, documents, or other information. Subpenas so issued by the Comptroller General shall be served by anyone authorized by him (1) by delivering a copy thereof to the person named therein, or (2) by registered mail or by certified mail addressed to such person at his last dwelling place or principal place of business. A verified return by the person so serving the subpena setting forth the manner of service, or, in the case of service by registered mail or by certified mail, the return post office receipt therefor signed by the person so served, shall be proof of service.
(b) Contumacy or refusal to obey subpena; contempt proceedings
In case of contumacy by, or refusal to obey a subpena issued pursuant to subsection (a) of this section and duly served upon, any person, any district court of the United States for the judicial district in which such person charged with contumacy or refusal to obey is found or resides or transacts business, upon application by the Comptroller General, shall have jurisdiction to issue an order requiring such person to produce the books, records, documents, or other information sought by the subpena; and any failure to obey such order of the court may be punished by the court as a contempt thereof. In proceedings brought under this subsection, the Comptroller General shall be represented by attorneys employed in the Government Accountability Office or by counsel whom he may employ without regard to the provisions of title 5 governing appointments in the competitive service, and the provisions of
(c) Nondisclosure of personal medical records by Government Accountability Office
No personal medical record in the possession of the Government Accountability Office shall be subject to subpena or discovery proceedings in a civil action.
(Aug. 14, 1935, ch. 531, title XI, §1125, as added
Editorial Notes
Amendments
2004—Subsecs. (b), (c).
§1320a–5. Disclosure by institutions, organizations, and agencies of owners, officers, etc., convicted of offenses related to programs; notification requirements; "managing employee" defined
(a) As a condition of participation in or certification or recertification under the programs established by subchapters XVIII,1 and XIX, any hospital, nursing facility, or other entity (other than an individual practitioner or group of practitioners) shall be required to disclose to the Secretary or to the appropriate State agency the name of any person that is a person described in subparagraphs (A) and (B) of
(b) For the purposes of this section, the term "managing employee" means, with respect to an entity, an individual, including a general manager, business manager, administrator, and director, who exercises operational or managerial control over the entity, or who directly or indirectly conducts the day-to-day operations of the entity.
(Aug. 14, 1935, ch. 531, title XI, §1126, as added
Editorial Notes
Amendments
1987—Subsec. (a).
"(1) has a direct or indirect ownership or control interest of 5 percent or more in such institution, organization, or agency or is an officer, director, agent, or managing employee (as defined in subsection (b) of this section) of such institution, organization, or agency, and
"(2) has been convicted (on or after October 25, 1977, or within such period prior to that date as the Secretary shall specify in regulations) of a criminal offense related to the involvement of such person in any of such programs.",
and in second sentence substituted "entity" for "institution, organization, or agency".
Subsec. (b).
1984—Subsec. (a).
1981—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date
1 So in original. The comma probably should not appear.
§1320a–6. Adjustments in SSI benefits on account of retroactive benefits under subchapter II
(a) Reduction in benefits
Notwithstanding any other provision of this chapter, in any case where an individual—
(1) is entitled to benefits under subchapter II that were not paid in the months in which they were regularly due; and
(2) is an individual or eligible spouse eligible for supplemental security income benefits for one or more months in which the benefits referred to in clause (1) were regularly due,
then any benefits under subchapter II that were regularly due in such month or months, or supplemental security income benefits for such month or months, which are due but have not been paid to such individual or eligible spouse shall be reduced by an amount equal to so much of the supplemental security income benefits, whether or not paid retroactively, as would not have been paid or would not be paid with respect to such individual or spouse if he had received such benefits under subchapter II in the month or months in which they were regularly due. A benefit under subchapter II shall not be reduced pursuant to the preceding sentence to the extent that any amount of such benefit would not otherwise be available for payment in full of the maximum fee which may be recovered from such benefit by an attorney pursuant to subsection (a)(4) or (b) of
(b) "Supplemental security income benefits" defined
For purposes of this section, the term "supplemental security income benefits" means benefits paid or payable by the Commissioner of Social Security under subchapter XVI, including State supplementary payments under an agreement pursuant to
(c) Reimbursement of the State
From the amount of the reduction made under subsection (a), the Commissioner of Social Security shall reimburse the State on behalf of which supplementary payments were made for the amount (if any) by which such State's expenditures on account of such supplementary payments for the month or months involved exceeded the expenditures which the State would have made (for such month or months) if the individual had received the benefits under subchapter II at the times they were regularly due. An amount equal to the portion of such reduction remaining after reimbursement of the State under the preceding sentence shall be covered into the general fund of the Treasury.
(Aug. 14, 1935, ch. 531, title XI, §1127, as added
Editorial Notes
References in Text
Section 212(b) of
Amendments
1994—Subsec. (a).
Subsecs. (b), (c).
1990—Subsec. (a).
1984—
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by section 108(b)(8) of
Amendment by section 321(f)(3)(B)(ii) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1984 Amendment
Effective Date
§1320a–6a. Interagency coordination to improve program administration
(a) Coordination agreement
Notwithstanding any other provision of law, including
(1) The Director shall notify the Commissioner when any individual is determined to be entitled to a monthly disability annuity payment pursuant to subchapter V of
(2) If the Commissioner determines that an individual described in paragraph (1) is also entitled to past-due benefits under
(3) Not later than 30 days after receiving a notification described in paragraph (2) with respect to an individual, the Director shall provide the Commissioner with the total amount of any disability annuity overpayments made to such individual, as well as any other information (in such form and manner as the Commissioner shall require) that the Commissioner determines is necessary to carry out this section.
(4) If the Director provides the Commissioner with the information described in paragraph (3) in a timely manner, the Commissioner may withhold past-due benefits under
(5) The Director shall credit any amount received under paragraph (4) with respect to an individual toward any disability annuity overpayment owed by such individual.
(b) Limitations
(1) Priority of other reductions
Benefits shall only be withheld under this section after any other reduction applicable under this chapter, including
(2) Timely notification required
The Commissioner may not withhold benefits under this section if the Director does not provide the notice described in subsection (a)(3) within the time period described in such subsection.
(c) Delayed payment of past-due benefits
If the Commissioner is required to make a notification described in subsection (a)(2) with respect to an individual, the Commissioner shall not make any payment of past-due benefits under
(d) Review
Notwithstanding
(e) Disability annuity overpayment defined
For purposes of this section, the term "disability annuity overpayment" means the amount of the reduction under
(f) Authorization to withhold benefits
The authorization described in this subsection, with respect to an individual, is written authorization provided by the individual to the Director which authorizes the Commissioner to withhold past-due benefits under
(g) Expenses
The Director shall pay to the Social Security Administration an amount equal to the amount estimated by the Commissioner as the total cost incurred by the Social Security Administration in carrying out this section for each calendar quarter.
(Aug. 14, 1935, ch. 531, title XI, §1127A, as added
Statutory Notes and Related Subsidiaries
Effective Date
§1320a–7. Exclusion of certain individuals and entities from participation in Medicare and State health care programs
(a) Mandatory exclusion
The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in
(1) Conviction of program-related crimes
Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII or under any State health care program.
(2) Conviction relating to patient abuse
Any individual or entity that has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.
(3) Felony conviction relating to health care fraud
Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in paragraph (1)) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.
(4) Felony conviction relating to controlled substance
Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.
(b) Permissive exclusion
The Secretary may exclude the following individuals and entities from participation in any Federal health care program (as defined in
(1) Conviction relating to fraud
Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law—
(A) of a criminal offense consisting of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct—
(i) in connection with the delivery of a health care item or service, or
(ii) with respect to any act or omission in a health care program (other than those specifically described in subsection (a)(1)) operated by or financed in whole or in part by any Federal, State, or local government agency; or
(B) of a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct with respect to any act or omission in a program (other than a health care program) operated by or financed in whole or in part by any Federal, State, or local government agency.
(2) Conviction relating to obstruction of an investigation or audit
Any individual or entity that has been convicted, under Federal or State law, in connection with the interference with or obstruction of any investigation or audit related to—
(i) any offense described in paragraph (1) or in subsection (a); or
(ii) the use of funds received, directly or indirectly, from any Federal health care program (as defined in
(3) Misdemeanor conviction relating to controlled substance
Any individual or entity that has been convicted, under Federal or State law, of a criminal offense consisting of a misdemeanor relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.
(4) License revocation or suspension
Any individual or entity—
(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity, or
(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity.
(5) Exclusion or suspension under Federal or State health care program
Any individual or entity which has been suspended or excluded from participation, or otherwise sanctioned, under—
(A) any Federal program, including programs of the Department of Defense or the Department of Veterans Affairs, involving the provision of health care, or
(B) a State health care program,
for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity.
(6) Claims for excessive charges or unnecessary services and failure of certain organizations to furnish medically necessary services
Any individual or entity that the Secretary determines—
(A) has submitted or caused to be submitted bills or requests for payment (where such bills or requests are based on charges or cost) under subchapter XVIII or a State health care program containing charges (or, in applicable cases, requests for payment of costs) for items or services furnished substantially in excess of such individual's or entity's usual charges (or, in applicable cases, substantially in excess of such individual's or entity's costs) for such items or services, unless the Secretary finds there is good cause for such bills or requests containing such charges or costs;
(B) has furnished or caused to be furnished items or services to patients (whether or not eligible for benefits under subchapter XVIII or under a State health care program) substantially in excess of the needs of such patients or of a quality which fails to meet professionally recognized standards of health care;
(C) is—
(i) a health maintenance organization (as defined in
(ii) an entity furnishing services under a waiver approved under
and has failed substantially to provide medically necessary items and services that are required (under law or the contract with the State under subchapter XIX) to be provided to individuals covered under that plan or waiver, if the failure has adversely affected (or has a substantial likelihood of adversely affecting) these individuals; or
(D) is an entity providing items and services as an eligible organization under a risk-sharing contract under
(7) Fraud, kickbacks, and other prohibited activities
Any individual or entity that the Secretary determines has committed an act which is described in
(8) Entities controlled by a sanctioned individual
Any entity with respect to which the Secretary determines that a person—
(A)(i) who has a direct or indirect ownership or control interest of 5 percent or more in the entity or with an ownership or control interest (as defined in
(ii) who is an officer, director, agent, or managing employee (as defined in
(iii) who was described in clause (i) but is no longer so described because of a transfer of ownership or control interest, in anticipation of (or following) a conviction, assessment, or exclusion described in subparagraph (B) against the person, to an immediate family member (as defined in subsection (j)(1)) or a member of the household of the person (as defined in subsection (j)(2)) who continues to maintain an interest described in such clause—
is a person—
(B)(i) who has been convicted of any offense described in subsection (a) or in paragraph (1), (2), or (3) of this subsection;
(ii) against whom a civil monetary penalty has been assessed under
(iii) who has been excluded from participation under a program under subchapter XVIII or under a State health care program.
(9) Failure to disclose required information
Any entity that did not fully and accurately make any disclosure required by
(10) Failure to supply requested information on subcontractors and suppliers
Any disclosing entity (as defined in
(A) full and complete information as to the ownership of a subcontractor (as defined by the Secretary in regulations) with whom the entity has had, during the previous 12 months, business transactions in an aggregate amount in excess of $25,000, or
(B) full and complete information as to any significant business transactions (as defined by the Secretary in regulations), occurring during the five-year period ending on the date of such request, between the entity and any wholly owned supplier or between the entity and any subcontractor.
(11) Failure to supply payment information
Any individual or entity furnishing, ordering, referring for furnishing, or certifying the need for items or services for which payment may be made under subchapter XVIII or a State health care program that fails to provide such information as the Secretary or the appropriate State agency finds necessary to determine whether such payments are or were due and the amounts thereof, or has refused to permit such examination of its records by or on behalf of the Secretary or that agency as may be necessary to verify such information.
(12) Failure to grant immediate access
Any individual or entity that fails to grant immediate access, upon reasonable request (as defined by the Secretary in regulations) to any of the following:
(A) To the Secretary, or to the agency used by the Secretary, for the purpose specified in the first sentence of
(B) To the Secretary or the State agency, to perform the reviews and surveys required under State plans under paragraphs (26), (31), and (33) of
(C) To the Inspector General of the Department of Health and Human Services, for the purpose of reviewing records, documents, and other data necessary to the performance of the statutory functions of the Inspector General.
(D) To a State medicaid fraud control unit (as defined in
(13) Failure to take corrective action
Any hospital that fails to comply substantially with a corrective action required under
(14) Default on health education loan or scholarship obligations
Any individual who the Secretary determines is in default on repayments of scholarship obligations or loans in connection with health professions education made or secured, in whole or in part, by the Secretary and with respect to whom the Secretary has taken all reasonable steps available to the Secretary to secure repayment of such obligations or loans, except that (A) the Secretary shall not exclude pursuant to this paragraph a physician who is the sole community physician or sole source of essential specialized services in a community if a State requests that the physician not be excluded, and (B) the Secretary shall take into account, in determining whether to exclude any other physician pursuant to this paragraph, access of beneficiaries to physician services for which payment may be made under subchapter XVIII or XIX.
(15) Individuals controlling a sanctioned entity
(A) Any individual—
(i) who has a direct or indirect ownership or control interest in a sanctioned entity and who knows or should know (as defined in section 1320a–7a(i)(6) 1 of this title) of the action constituting the basis for the conviction or exclusion described in subparagraph (B); or
(ii) who is an officer or managing employee (as defined in
(B) For purposes of subparagraph (A), the term "sanctioned entity" means an entity—
(i) that has been convicted of any offense described in subsection (a) or in paragraph (1), (2), or (3) of this subsection; or
(ii) that has been excluded from participation under a program under subchapter XVIII or under a State health care program.
(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
(17) Knowingly misclassifying covered outpatient drugs
Any manufacturer or officer, director, agent, or managing employee of such manufacturer that knowingly misclassifies a covered outpatient drug under an agreement under
(c) Notice, effective date, and period of exclusion
(1) An exclusion under this section or under
(2)(A) Except as provided in subparagraph (B), such an exclusion shall be effective with respect to services furnished to an individual on or after the effective date of the exclusion.
(B) Unless the Secretary determines that the health and safety of individuals receiving services warrants the exclusion taking effect earlier, an exclusion shall not apply to payments made under subchapter XVIII or under a State health care program for—
(i) inpatient institutional services furnished to an individual who was admitted to such institution before the date of the exclusion, or
(ii) home health services and hospice care furnished to an individual under a plan of care established before the date of the exclusion,
until the passage of 30 days after the effective date of the exclusion.
(3)(A) The Secretary shall specify, in the notice of exclusion under paragraph (1) and the written notice under
(B) Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years, except that, upon the request of the administrator of a Federal health care program (as defined in
(C) In the case of an exclusion of an individual under subsection (b)(12), the period of the exclusion shall be equal to the sum of—
(i) the length of the period in which the individual failed to grant the immediate access described in that subsection, and
(ii) an additional period, not to exceed 90 days, set by the Secretary.
(D) Subject to subparagraph (G), in the case of an exclusion of an individual or entity under paragraph (1), (2), or (3) of subsection (b), the period of the exclusion shall be 3 years, unless the Secretary determines in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances.
(E) In the case of an exclusion of an individual or entity under subsection (b)(4) or (b)(5), the period of the exclusion shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or the entity is excluded or suspended from a Federal or State health care program.
(F) In the case of an exclusion of an individual or entity under subsection (b)(6)(B), the period of the exclusion shall be not less than 1 year.
(G) In the case of an exclusion of an individual under subsection (a) based on a conviction occurring on or after August 5, 1997, if the individual has (before, on, or after August 5, 1997) been convicted—
(i) on one previous occasion of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be not less than 10 years, or
(ii) on 2 or more previous occasions of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be permanent.
(d) Notice to State agencies and exclusion under State health care programs
(1) Subject to paragraph (3), the Secretary shall exercise the authority under this section and
(2) The Secretary shall promptly notify each appropriate State agency administering or supervising the administration of each State health care program (and, in the case of an exclusion effected pursuant to subsection (a) and to which
(A) of the fact and circumstances of each exclusion effected against an individual or entity under this section or
(B) of the period (described in paragraph (3)) for which the State agency is directed to exclude the individual or entity from participation in the State health care program.
(3)(A) Except as provided in subparagraph (B), the period of the exclusion under a State health care program under paragraph (2) shall be the same as any period of exclusion under subchapter XVIII.
(B)(i) The Secretary may waive an individual's or entity's exclusion under a State health care program under paragraph (2) if the Secretary receives and approves a request for the waiver with respect to the individual or entity from the State agency administering or supervising the administration of the program.
(ii) A State health care program may provide for a period of exclusion which is longer than the period of exclusion under subchapter XVIII.
(e) Notice to State licensing agencies
The Secretary shall—
(1) promptly notify the appropriate State or local agency or authority having responsibility for the licensing or certification of an individual or entity excluded (or directed to be excluded) from participation under this section or
(2) request that appropriate investigations be made and sanctions invoked in accordance with applicable State law and policy, and
(3) request that the State or local agency or authority keep the Secretary and the Inspector General of the Department of Health and Human Services fully and currently informed with respect to any actions taken in response to the request.
(f) Notice, hearing, and judicial review
(1) Subject to paragraph (2), any individual or entity that is excluded (or directed to be excluded) from participation under this section is entitled to reasonable notice and opportunity for a hearing thereon by the Secretary to the same extent as is provided in
(2) Unless the Secretary determines that the health or safety of individuals receiving services warrants the exclusion taking effect earlier, any individual or entity that is the subject of an adverse determination under subsection (b)(7) shall be entitled to a hearing by an administrative law judge (as provided under
(3) The provisions of
(4) The provisions of subsections (d) and (e) of
(g) Application for termination of exclusion
(1) An individual or entity excluded (or directed to be excluded) from participation under this section or
(2) The Secretary may terminate the exclusion if the Secretary determines, on the basis of the conduct of the applicant which occurred after the date of the notice of exclusion or which was unknown to the Secretary at the time of the exclusion, that—
(A) there is no basis under subsection (a) or (b) or
(B) there are reasonable assurances that the types of actions which formed the basis for the original exclusion have not recurred and will not recur.
(3) The Secretary shall promptly notify each appropriate State agency administering or supervising the administration of each State health care program (and, in the case of an exclusion effected pursuant to subsection (a) and to which
(h) "State health care program" defined
For purposes of this section and
(1) a State plan approved under subchapter XIX,
(2) any program receiving funds under subchapter V or from an allotment to a State under such subchapter,
(3) any program receiving funds under division A 2 of subchapter XX or from an allotment to a State under such division, or
(4) a State child health plan approved under subchapter XXI.
(i) "Convicted" defined
For purposes of subsections (a) and (b), an individual or entity is considered to have been "convicted" of a criminal offense—
(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;
(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or
(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.
(j) Definition of immediate family member and member of household
For purposes of subsection (b)(8)(A)(iii):
(1) The term "immediate family member" means, with respect to a person—
(A) the husband or wife of the person;
(B) the natural or adoptive parent, child, or sibling of the person;
(C) the stepparent, stepchild, stepbrother, or stepsister of the person;
(D) the father-, mother-, daughter-, son-, brother-, or sister-in-law of the person;
(E) the grandparent or grandchild of the person; and
(F) the spouse of a grandparent or grandchild of the person.
(2) The term "member of the household" means, with respect to any person, any individual sharing a common abode as part of a single family unit with the person, including domestic employees and others who live together as a family unit, but not including a roomer or boarder.
(Aug. 14, 1935, ch. 531, title XI, §1128, as added
Editorial Notes
References in Text
Division A of subchapter XX, referred to in subsec. (h)(3), was in the original a reference to subtitle 1 of title XX, which was translated as if referring to subtitle A of title XX of the Social Security Act, to reflect the probable intent of Congress. Title XX of the Act, enacting subchapter XX of this chapter, does not contain a subtitle 1.
Amendments
2019—Subsec. (b)(17).
2010—Subsec. (b)(2).
Subsec. (b)(11).
Subsec. (b)(16).
Subsec. (c)(3)(B).
Subsec. (f)(4).
Subsec. (h)(3).
2003—Subsec. (c)(3)(B).
1997—Subsec. (a).
Subsec. (b).
Subsec. (b)(8)(A)(iii).
Subsec. (c)(3)(A).
Subsec. (c)(3)(B), (D).
Subsec. (c)(3)(G).
Subsec. (h)(4).
Subsec. (j).
1996—Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (b)(1).
Subsec. (b)(3).
Subsec. (b)(15).
Subsec. (c)(3)(D) to (F).
1994—Subsec. (b)(7).
Subsec. (b)(8)(B)(ii).
Subsec. (f)(1).
Subsec. (f)(3).
1991—Subsec. (b)(5)(A).
1990—Subsec. (b)(9).
1989—Subsec. (b)(4)(A).
1988—
Subsec. (d)(3)(B)(ii).
1987—
Subsec. (b)(8)(A)(i).
Subsec. (d)(1).
Subsec. (d)(3)(A).
Subsec. (d)(3)(B).
Subsec. (i).
Subsec. (i)(4).
1986—Subsec. (f).
1984—Subsecs. (b) to (e).
1981—Subsec. (a)(1).
Subsec. (a)(2).
Subsecs. (b) to (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2019 Amendment
Effective Date of 2010 Amendment
"(1)
"(2)
Effective Date of 1997 Amendment
Amendments by section 4331(c) of
Effective Date of 1996 Amendment
Effective Date of 1994 Amendment
Amendment by section 108(b)(9) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1989 Amendment
Effective Date of 1988 Amendment
Except as specifically provided in section 411 of
Effective Date of 1987 Amendment
"(a)
"(b)
"(c)
"(2) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this Act, the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act.
"(3) Subsection (j) of section 1128A of the Social Security Act [
"(d)
"(e)
"(f)
Effective Date of 1986 Amendment
"(A) of paragraphs (1), (2), and (3) of section 1128(f) of the Social Security Act [
"(B) of paragraph (4) of such section [
Effective Date of 1984 Amendment
Effective Date of 1981 Amendment
Amendment by section 2353(k) of
1 So in original. Probably should be section "1320a–7a(i)(7)".
2 See References in Text note below.
§1320a–7a. Civil monetary penalties
(a) Improperly filed claims
Any person (including an organization, agency, or other entity, but excluding a beneficiary, as defined in subsection (i)(5)) that—
(1) knowingly presents or causes to be presented to an officer, employee, or agent of the United States, or of any department or agency thereof, or of any State agency (as defined in subsection (i)(1)), a claim (as defined in subsection (i)(2)) that the Secretary determines—
(A) is for a medical or other item or service that the person knows or should know was not provided as claimed, including any person who engages in a pattern or practice of presenting or causing to be presented a claim for an item or service that is based on a code that the person knows or should know will result in a greater payment to the person than the code the person knows or should know is applicable to the item or service actually provided,
(B) is for a medical or other item or service and the person knows or should know the claim is false or fraudulent,
(C) is presented for a physician's service (or an item or service incident to a physician's service) by a person who knows or should know that the individual who furnished (or supervised the furnishing of) the service—
(i) was not licensed as a physician,
(ii) was licensed as a physician, but such license had been obtained through a misrepresentation of material fact (including cheating on an examination required for licensing), or
(iii) represented to the patient at the time the service was furnished that the physician was certified in a medical specialty by a medical specialty board when the individual was not so certified,
(D) is for a medical or other item or service furnished during a period in which the person was excluded from the Federal health care program (as defined in
(E) is for a pattern of medical or other items or services that a person knows or should know are not medically necessary;
(2) knowingly presents or causes to be presented to any person a request for payment which is in violation of the terms of (A) an assignment under
(3) knowingly gives or causes to be given to any person, with respect to coverage under subchapter XVIII of inpatient hospital services subject to the provisions of
(4) in the case of a person who is not an organization, agency, or other entity, is excluded from participating in a program under subchapter XVIII or a State health care program in accordance with this subsection or under
(A) retains a direct or indirect ownership or control interest in an entity that is participating in a program under subchapter XVIII or a State health care program, and who knows or should know of the action constituting the basis for the exclusion; or
(B) is an officer or managing employee (as defined in
(5) offers to or transfers remuneration to any individual eligible for benefits under subchapter XVIII of this chapter, or under a State health care program (as defined in
(6) arranges or contracts (by employment or otherwise) with an individual or entity that the person knows or should know is excluded from participation in a Federal health care program (as defined in
(7) commits an act described in paragraph (1) or (2) of
(8) 2 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 3
(9) 4 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;
(8) 2 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;
(9) 4 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 subchapter XVIII, prescription drug plan sponsors under part D of subchapter XVIII, medicaid managed care organizations under subchapter XIX, and entities that apply to participate as providers of services or suppliers in such managed care organizations and such plans; 5
(10) knows of an overpayment (as defined in paragraph (4) of
shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $20,000 for each item or service (or, in cases under paragraph (3), $30,000 for each individual with respect to whom false or misleading information was given; in cases under paragraph (4), $20,000 for each day the prohibited relationship occurs; in cases under paragraph (7), $100,000 for each such act,6 in cases under paragraph (8),7 $100,000 for each false record or statement,6 or 3 in cases under paragraph (9),8 $15,000 for each day of the failure described in such paragraph); 9 or in cases under paragraph (9),10 $100,000 for each false statement or misrepresentation of a material fact). In addition, such a person shall be subject to an assessment of not more than 3 times the amount claimed for each such item or service in lieu of damages sustained by the United States or a State agency because of such claim (or, in cases under paragraph (7), damages of not more than 3 times the total amount of remuneration offered, paid, solicited, or received, without regard to whether a portion of such remuneration was offered, paid, solicited, or received for a lawful 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). In addition the Secretary may make a determination in the same proceeding to exclude the person from participation in the Federal health care programs (as defined in
(b) Payments to induce reduction or limitation of services
(1) If a hospital or a critical access hospital knowingly makes a payment, directly or indirectly, to a physician as an inducement to reduce or limit medically necessary services provided with respect to individuals who—
(A) are entitled to benefits under part A or part B of subchapter XVIII or to medical assistance under a State plan approved under subchapter XIX, and
(B) are under the direct care of the physician,
the hospital or a critical access hospital shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $5,000 for each such individual with respect to whom the payment is made.
(2) Any physician who knowingly accepts receipt of a payment described in paragraph (1) shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $5,000 for each individual described in such paragraph with respect to whom the payment is made.
(3)(A) Any physician who executes a document described in subparagraph (B) with respect to an individual knowing that all of the requirements referred to in such subparagraph are not met with respect to the individual shall be subject to a civil monetary penalty of not more than the greater of—
(i) $10,000, or
(ii) three times the amount of the payments under subchapter XVIII for home health services which are made pursuant to such certification.
(B) A document described in this subparagraph is any document that certifies, for purposes of subchapter XVIII, that an individual meets the requirements of
(c) Initiation of proceeding; authorization by Attorney General, notice, etc., estoppel, failure to comply with order or procedure
(1) The Secretary may initiate a proceeding to determine whether to impose a civil money penalty, assessment, or exclusion under subsection (a) or (b) only as authorized by the Attorney General pursuant to procedures agreed upon by them. The Secretary may not initiate an action under this section with respect to any claim, request for payment, or other occurrence described in this section later than six years after the date the claim was presented, the request for payment was made, or the occurrence took place. The Secretary may initiate an action under this section by serving notice of the action in any manner authorized by Rule 4 of the Federal Rules of Civil Procedure.
(2) The Secretary shall not make a determination adverse to any person under subsection (a) or (b) until the person has been given written notice and an opportunity for the determination to be made on the record after a hearing at which the person is entitled to be represented by counsel, to present witnesses, and to cross-examine witnesses against the person.
(3) In a proceeding under subsection (a) or (b) which—
(A) is against a person who has been convicted (whether upon a verdict after trial or upon a plea of guilty or nolo contendere) of a Federal crime charging fraud or false statements, and
(B) involves the same transaction as in the criminal action,
the person is estopped from denying the essential elements of the criminal offense.
(4) The official conducting a hearing under this section may sanction a person, including any party or attorney, for failing to comply with an order or procedure, failing to defend an action, or other misconduct as would interfere with the speedy, orderly, or fair conduct of the hearing. Such sanction shall reasonably relate to the severity and nature of the failure or misconduct. Such sanction may include—
(A) in the case of refusal to provide or permit discovery, drawing negative factual inferences or treating such refusal as an admission by deeming the matter, or certain facts, to be established,
(B) prohibiting a party from introducing certain evidence or otherwise supporting a particular claim or defense,
(C) striking pleadings, in whole or in part,
(D) staying the proceedings,
(E) dismissal of the action,
(F) entering a default judgment,
(G) ordering the party or attorney to pay attorneys' fees and other costs caused by the failure or misconduct, and
(H) refusing to consider any motion or other action which is not filed in a timely manner.
(d) Amount or scope of penalty, assessment, or exclusion
In determining the amount or scope of any penalty, assessment, or exclusion imposed pursuant to subsection (a) or (b), the Secretary shall take into account—
(1) the nature of claims and the circumstances under which they were presented,
(2) the degree of culpability, history of prior offenses, and financial condition of the person presenting the claims, and
(3) such other matters as justice may require.
(e) Review by courts of appeals
Any person adversely affected by a determination of the Secretary under this section may obtain a review of such determination in the United States Court of Appeals for the circuit in which the person resides, or in which the claim or specified claim was presented, by filing in such court (within sixty days following the date the person is notified of the Secretary's determination) a written petition requesting that the determination be modified or set aside. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary, and thereupon the Secretary shall file in the Court 11 the record in the proceeding as provided in
(f) Compromise of penalties and assessments; recovery; use of funds recovered
Civil money penalties and assessments imposed under this section may be compromised by the Secretary and may be recovered in a civil action in the name of the United States brought in United States district court for the district where the claim or specified claim (as defined in subsection (r)) was presented, or where the claimant (or, with respect to a person described in subsection (o), the person) resides, as determined by the Secretary. Amounts recovered under this section shall be paid to the Secretary and disposed of as follows:
(1)(A) In the case of amounts recovered arising out of a claim under subchapter XIX, there shall be paid to the State agency an amount bearing the same proportion to the total amount recovered as the State's share of the amount paid by the State agency for such claim bears to the total amount paid for such claim.
(B) In the case of amounts recovered arising out of a claim under an allotment to a State under subchapter V, there shall be paid to the State agency an amount equal to three-sevenths of the amount recovered.
(2) Such portion of the amounts recovered as is determined to have been paid out of the trust funds under
(3) With respect to amounts recovered arising out of a claim under a Federal health care program (as defined in
(4) The remainder of the amounts recovered shall be deposited as miscellaneous receipts of the Treasury of the United States.
The amount of such penalty or assessment, when finally determined, or the amount agreed upon in compromise, may be deducted from any sum then or later owing by the United States or a State agency (or, in the case of a penalty or assessment under subsection (o), by a specified State agency (as defined in subsection (q)(6)), to the person against whom the penalty or assessment has been assessed.
(g) Finality of determination respecting penalty, assessment, or exclusion
A determination by the Secretary to impose a penalty, assessment, or exclusion under subsection (a) or (b) shall be final upon the expiration of the sixty-day period referred to in subsection (e). Matters that were raised or that could have been raised in a hearing before the Secretary or in an appeal pursuant to subsection (e) may not be raised as a defense to a civil action by the United States to collect a penalty, assessment, or exclusion assessed under this section.
(h) Notification of appropriate entities of finality of determination
Whenever the Secretary's determination to impose a penalty, assessment, or exclusion under subsection (a) or (b) becomes final, he shall notify the appropriate State or local medical or professional organization, the appropriate State agency or agencies administering or supervising the administration of State health care programs (as defined in
(i) Definitions
For the purposes of this section:
(1) The term "State agency" means the agency established or designated to administer or supervise the administration of the State plan under subchapter XIX of this chapter or designated to administer the State's program under subchapter V or division A 12 of subchapter XX of this chapter.
(2) The term "claim" means an application for payments for items and services under a Federal health care program (as defined in
(3) The term "item or service" includes (A) any particular item, device, medical supply, or service claimed to have been provided to a patient and listed in an itemized claim for payment, and (B) in the case of a claim based on costs, any entry in the cost report, books of account or other documents supporting such claim.
(4) The term "agency of the United States" includes any contractor acting as a fiscal intermediary, carrier, or fiscal agent or any other claims processing agent for a Federal health care program (as so defined).
(5) The term "beneficiary" means an individual who is eligible to receive items or services for which payment may be made under a Federal health care program (as so defined) but does not include a provider, supplier, or practitioner.
(6) The term "remuneration" includes the waiver of coinsurance and deductible amounts (or any part thereof), and transfers of items or services for free or for other than fair market value. The term "remuneration" does not include—
(A) the waiver of coinsurance and deductible amounts by a person, if—
(i) the waiver is not offered as part of any advertisement or solicitation;
(ii) the person does not routinely waive coinsurance or deductible amounts; and
(iii) the person—
(I) waives the coinsurance and deductible amounts after determining in good faith that the individual is in financial need; or
(II) fails to collect coinsurance or deductible amounts after making reasonable collection efforts;
(B) subject to subsection (n), any permissible practice described in any subparagraph of
(C) differentials in coinsurance and deductible amounts as part of a benefit plan design as long as the differentials have been disclosed in writing to all beneficiaries, third party payers, and providers, to whom claims are presented and as long as the differentials meet the standards as defined in regulations promulgated by the Secretary not later than 180 days after August 21, 1996;
(D) incentives given to individuals to promote the delivery of preventive care as determined by the Secretary in regulations so promulgated;
(E) a reduction in the copayment amount for covered OPD services under section 1395l(t)(5)(B) 12 of this title; or 3
(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
(G) the offer or transfer of items or services for free or less than fair market value by a person, if—
(i) the items or services consist of coupons, rebates, or other rewards from a retailer;
(ii) the items or services are offered or transferred on equal terms available to the general public, regardless of health insurance status; and
(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 subchapter XVIII or a State health care program (as defined in
(H) the offer or transfer of items or services for free or less than fair market value by a person, if—
(i) the items or services are not offered as part of any advertisement or solicitation;
(ii) the items or services are not tied to the provision of other services reimbursed in whole or in part by the program under subchapter XVIII or a State health care program (as so defined);
(iii) there is a reasonable connection between the items or services and the medical care of the individual; and
(iv) the person provides the items or services after determining in good faith that the individual is in financial need;
(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 subchapter XVIII or an MA organization offering an MA–PD plan under part C of such subchapter of any copayment for the first fill of a covered part D drug (as defined in
(J) the provision of telehealth technologies (as defined by the Secretary) on or after January 1, 2019, by a provider of services or a renal dialysis facility (as such terms are defined for purposes of subchapter XVIII) to an individual with end stage renal disease who is receiving home dialysis for which payment is being made under part B of such subchapter, if—
(i) the telehealth technologies are not offered as part of any advertisement or solicitation;
(ii) the telehealth technologies are provided for the purpose of furnishing telehealth services related to the individual's end stage renal disease; and
(iii) the provision of the telehealth technologies meets any other requirements set forth in regulations promulgated by the Secretary.
(7) The term "should know" means that a person, with respect to information—
(A) acts in deliberate ignorance of the truth or falsity of the information; or
(B) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.
(j) Subpoenas
(1) The provisions of subsections (d) and (e) of
(2) The Secretary may delegate authority granted under this section and under
(k) Injunctions
Whenever the Secretary has reason to believe that any person has engaged, is engaging, or is about to engage in any activity which makes the person subject to a civil monetary penalty under this section, the Secretary may bring an action in an appropriate district court of the United States (or, if applicable, a United States court of any territory) to enjoin such activity, or to enjoin the person from concealing, removing, encumbering, or disposing of assets which may be required in order to pay a civil monetary penalty if any such penalty were to be imposed or to seek other appropriate relief.
(l) Liability of principal for acts of agent
A principal is liable for penalties, assessments, and an exclusion under this section for the actions of the principal's agent acting within the scope of the agency.
(m) Claims within jurisdiction of other departments or agencies
(1) For purposes of this section, with respect to a Federal health care program not contained in this chapter, references to the Secretary in this section shall be deemed to be references to the Secretary or Administrator of the department or agency with jurisdiction over such program and references to the Inspector General of the Department of Health and Human Services in this section shall be deemed to be references to the Inspector General of the applicable department or agency.
(2)(A) The Secretary and Administrator of the departments and agencies referred to in paragraph (1) may include in any action pursuant to this section, claims within the jurisdiction of other Federal departments or agencies as long as the following conditions are satisfied:
(i) The case involves primarily claims submitted to the Federal health care programs of the department or agency initiating the action.
(ii) The Secretary or Administrator of the department or agency initiating the action gives notice and an opportunity to participate in the investigation to the Inspector General of the department or agency with primary jurisdiction over the Federal health care programs to which the claims were submitted.
(B) If the conditions specified in subparagraph (A) are fulfilled, the Inspector General of the department or agency initiating the action is authorized to exercise all powers granted under
(n) Safe harbor for payment of medigap premiums
(1) Subparagraph (B) of subsection (i)(6) shall not apply to a practice described in paragraph (2) unless—
(A) the Secretary, through the Inspector General of the Department of Health and Human Services, promulgates a rule authorizing such a practice as an exception to remuneration; and
(B) the remuneration is offered or transferred by a person under such rule during the 2-year period beginning on the date the rule is first promulgated.
(2) A practice described in this paragraph is a practice under which a health care provider or facility pays, in whole or in part, premiums for medicare supplemental policies for individuals entitled to benefits under part A of subchapter XVIII pursuant to
(o) Penalties for violations of grants, contracts, and other agreements
Any person (including an organization, agency, or other entity, but excluding a program beneficiary, as defined in subsection (q)(4)) that, with respect to a grant, contract, or other agreement for which the Secretary provides funding—
(1) knowingly presents or causes to be presented a specified claim (as defined in subsection (r)) under such grant, contract, or other agreement that the person knows or should know is false or fraudulent;
(2) knowingly makes, uses, or causes to be made or used any false statement, omission, or misrepresentation of a material fact in any application, proposal, bid, progress report, or other document that is required to be submitted in order to directly or indirectly receive or retain funds provided in whole or in part by such Secretary pursuant to such grant, contract, or other agreement;
(3) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent specified claim under such grant, contract, or other agreement;
(4) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation (as defined in subsection (s)) to pay or transmit funds or property to such Secretary with respect to such grant, contract, or other agreement, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit funds or property to such Secretary with respect to such grant, contract, or other agreement; or
(5) fails to grant timely access, upon reasonable request (as defined by such Secretary in regulations), to the Inspector General of the Department, for the purpose of audits, investigations, evaluations, or other statutory functions of such Inspector General in matters involving such grants, contracts, or other agreements;
shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty in cases under paragraph (1), of not more than $10,000 for each specified claim; in cases under paragraph (2), not more than $50,000 for each false statement, omission, or misrepresentation of a material fact; in cases under paragraph (3), not more than $50,000 for each false record or statement; in cases under paragraph (4), not more than $50,000 for each false record or statement or $10,000 for each day that the person knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay; or in cases under paragraph (5), not more than $15,000 for each day of the failure described in such paragraph. In addition, in cases under paragraphs (1) and (3), such a person shall be subject to an assessment of not more than 3 times the amount claimed in the specified claim described in such paragraph in lieu of damages sustained by the United States or a specified State agency because of such specified claim, and in cases under paragraphs (2) and (4), such a person shall be subject to an assessment of not more than 3 times the total amount of the funds described in paragraph (2) or (4), respectively (or, in the case of an obligation to transmit property to the Secretary described in paragraph (4), of the value of the property described in such paragraph) in lieu of damages sustained by the United States or a specified State agency because of such case. In addition, the Secretary may make a determination in the same proceeding to exclude the person from participation in the Federal health care programs (as defined in
(p) Applicability of rules to penalties or assessments for violations of grants, contracts, and other agreements
The provisions of subsections (c), (d), (g), and (h) shall apply to a civil money penalty or assessment under subsection (o) in the same manner as such provisions apply to a penalty, assessment, or proceeding under subsection (a). In applying subsection (d), each reference to a claim under such subsection shall be treated as including a reference to a specified claim (as defined in subsection (r)).
(q) Definitions of terms used in subsections (o) and (p)
For purposes of this subsection and subsections (o) and (p):
(1) The term "Department" means the Department of Health and Human Services.
(2) The term "material" means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
(3) The term "other agreement" includes a cooperative agreement, scholarship, fellowship, loan, subsidy, payment for a specified use, donation agreement, award, or subaward (regardless of whether one or more of the persons entering into the agreement is a contractor or subcontractor).
(4) The term "program beneficiary" means, in the case of a grant, contract, or other agreement designed to accomplish the objective of awarding or otherwise furnishing benefits or assistance to individuals and for which the Secretary provides funding, an individual who applies for, or who receives, such benefits or assistance from such grant, contract, or other agreement. Such term does not include, with respect to such grant, contract, or other agreement, an officer, employee, or agent of a person or entity that receives such grant or that enters into such contract or other agreement.
(5) The term "recipient" includes a subrecipient or subcontractor.
(6) The term "specified State agency" means an agency of a State government established or designated to administer or supervise the administration of a grant, contract, or other agreement funded in whole or in part by the Secretary.
(r) Definition of "specified claim"
For purposes of this section, the term "specified claim" means any application, request, or demand under a grant, contract, or other agreement for money or property, whether or not the United States or a specified State agency has title to the money or property, that is not a claim (as defined in subsection (i)(2)) and that—
(1) is presented or caused to be presented to an officer, employee, or agent of the Department or agency thereof, or of any specified State agency; or
(2) is made to a contractor, grantee, or any other recipient if the money or property is to be spent or used on the Department's behalf or to advance a Department program or interest, and if the Department—
(A) provides or has provided any portion of the money or property requested or demanded; or
(B) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
(s) Definition of "obligation"
For purposes of subsection (o), the term "obligation" means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, for a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.
(Aug. 14, 1935, ch. 531, title XI, §1128A, as added
Editorial Notes
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (c)(1), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (f)(3), is
Division A of subchapter XX, referred to in subsec. (i)(1), was in the original a reference to subtitle 1 of title XX, which was translated as if referring to subtitle A of title XX of the Social Security Act, to reflect the probable intent of Congress. Title XX of the Act, enacting subchapter XX of this chapter, does not contain a subtitle 1.
Amendments
2022—Subsec. (m)(2)(B).
2018—Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3)(A)(i).
Subsec. (i)(6)(J).
2016—Subsec. (e).
Subsec. (f).
Subsecs. (o) to (s).
2015—Subsec. (b)(1).
2010—Subsec. (a).
Subsec. (a)(1)(D).
Subsec. (a)(6).
Subsec. (a)(8), (9).
Subsec. (a)(10).
Subsec. (i)(1).
Subsec. (i)(6)(C).
Subsec. (i)(6)(D).
Subsec. (i)(6)(E).
Subsec. (i)(6)(F) to (I).
1998—Subsec. (i)(6)(B).
Subsec. (n).
1997—Subsec. (a).
Subsec. (a)(6).
Subsec. (a)(7).
Subsec. (b)(1).
Subsec. (i)(6)(A)(iii).
Subsec. (i)(6)(B).
Subsec. (i)(6)(C).
Subsec. (i)(6)(D).
1996—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(1)(E).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (b)(3).
Subsec. (f)(3), (4).
Subsec. (i)(2).
Subsec. (i)(4).
Subsec. (i)(5).
Subsec. (i)(6).
Subsec. (i)(7).
Subsec. (m).
1990—Subsec. (b)(1).
Subsec. (j).
1989—Subsec. (a)(1)(D), (2)(C), (4).
Subsec. (b)(1).
1988—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(1)(D).
Subsec. (a)(2)(C).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (b)(1)(A).
Subsec. (b)(2).
Subsec. (c)(1).
Subsec. (i).
Subsec. (i)(1).
Subsec. (i)(2).
Subsec. (i)(5).
Subsec. (l).
1987—Subsec. (a).
Subsec. (a)(1).
"(A) that the person knows or has reason to know was not provided as claimed, or
"(B) payment for which may not be made under the program under which such claim was made, pursuant to a determination by the Secretary under
Subsec. (a)(1)(D).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (b)(1)(A).
Subsec. (b)(2).
Subsec. (c)(1).
Subsec. (d).
Subsec. (f)(1)(A).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsec. (i)(1).
Subsec. (i)(2).
"(A) a provider of services or other person, agency, or organization that furnishes an item or service under subchapter XVIII of this chapter, or
"(B) a person, agency, or organization that furnishes an item or service for which medical assistance is provided under subchapter XIX of this chapter, or
"(C) a person, agency, or organization that provides an item or service for which payment is made under subchapter V of this chapter or from an allotment to a State under such subchapter,
to the United States or a State agency, or agent thereof, for payment for health care services under subchapter XVIII or XIX of this chapter or for any item or service under subchapter V of this chapter".
Subsec. (i)(5).
Subsecs. (j), (k).
Subsec. (l).
1986—Subsec. (a)(1).
Subsec. (b).
Subsec. (c).
Subsec. (c)(3).
Subsec. (c)(4).
Subsec. (d).
Subsecs. (e), (f).
Subsec. (g).
Subsec. (h).
Subsec. (i).
1984—Subsec. (a)(2)(C).
Subsec. (g).
1982—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Effective Date of 2015 Amendment
Effective Date of 2010 Amendment
Amendment by section 6408(a) of
Effective Date of 1998 Amendment
Effective Date of 1997 Amendment
Amendment by section 4201(c)(1) of
"(1)
"(2)
Amendment by section 4331(e) of
Effective Date of 1996 Amendment
Effective Date of 1989 Amendment
Effective Date of 1988 Amendment
Amendment by
Amendment by section 202(c)(2) of
Except as specifically provided in section 411 of
Effective Date of 1987 Amendment
Amendment by
Effective Date of 1986 Amendment
"(A) payments by hospitals occurring more than 6 months after the date of the enactment of this Act [Oct. 21, 1986], and
"(B) payments by eligible organizations or entities occurring on or after April 1, 1991."
"(1) The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 21, 1986], without regard to when the criminal conviction was obtained, but shall only apply to a conviction upon a plea of nolo contendere tendered after the date of the enactment of this Act.
"(2) The amendment made by subsection (b) [amending this section] shall apply to failures or misconduct occurring on or after the date of the enactment of this Act."
Effective Date of 1984 Amendment
Amendment by section 2354(a)(3) of
Effective Date of 1982 Amendment
Amendment by
Regulations
GAO Study and Report on Impact of Safe Harbor on Medigap Policies
Repeal of 1988 Expansion of Medicare Part B Benefits
"(1)
"(2)
Study and Report on Incentive Arrangements Offered to Physicians
1 So in original. Probably should be "law, or".
2 So in original. Two pars. (8) have been enacted.
3 So in original. The word "or" probably should not appear.
4 So in original. Two pars. (9) have been enacted.
5 So in original. Probably should be followed by "or".
6 So in original. The comma probably should be a semicolon.
7 So in original. Probably is a reference to the first paragraph (8).
8 So in original. Probably is a reference to the first paragraph (9).
9 So in original. Probably should be "paragraph;".
10 So in original. Probably is a reference to the second paragraph (9).
11 So in original. Probably should not be capitalized.
12 See References in Text note below.
§1320a–7b. Criminal penalties for acts involving Federal health care programs
(a) Making or causing to be made false statements or representations
Whoever—
(1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a Federal health care program (as defined in subsection (f)),
(2) at any time knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment,
(3) having knowledge of the occurrence of any event affecting (A) his initial or continued right to any such benefit or payment, or (B) the initial or continued right to any such benefit or payment of any other individual in whose behalf he has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized,
(4) having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts such benefit or payment or any part thereof to a use other than for the use and benefit of such other person,
(5) presents or causes to be presented a claim for a physician's service for which payment may be made under a Federal health care program and knows that the individual who furnished the service was not licensed as a physician, or
(6) for a fee knowingly and willfully counsels or assists an individual to dispose of assets (including by any transfer in trust) in order for the individual to become eligible for medical assistance under a State plan under subchapter XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under
shall (i) in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the program, be guilty of a felony and upon conviction thereof fined not more than $100,000 or imprisoned for not more than 10 years or both, or (ii) in the case of such a statement, representation, concealment, failure, conversion, or provision of counsel or assistance by any other person, be guilty of a misdemeanor and upon conviction thereof fined not more than $20,000 or imprisoned for not more than one year, or both. In addition, in any case where an individual who is otherwise eligible for assistance under a Federal health care program is convicted of an offense under the preceding provisions of this subsection, the administrator of such program may at its option (notwithstanding any other provision of such program) limit, restrict, or suspend the eligibility of that individual for such period (not exceeding one year) as it deems appropriate; but the imposition of a limitation, restriction, or suspension with respect to the eligibility of any individual under this sentence shall not affect the eligibility of any other person for assistance under the plan, regardless of the relationship between that individual and such other person.
(b) Illegal remunerations
(1) Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind—
(A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or
(B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program,
shall be guilty of a felony and upon conviction thereof, shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both.
(2) Whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person—
(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or
(B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program,
shall be guilty of a felony and upon conviction thereof, shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both.
(3) Paragraphs (1) and (2) shall not apply to—
(A) a discount or other reduction in price obtained by a provider of services or other entity under a Federal health care program if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under a Federal health care program;
(B) any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services;
(C) any amount paid by a vendor of goods or services to a person authorized to act as a purchasing agent for a group of individuals or entities who are furnishing services reimbursed under a Federal health care program if—
(i) the person has a written contract, with each such individual or entity, which specifies the amount to be paid the person, which amount may be a fixed amount or a fixed percentage of the value of the purchases made by each such individual or entity under the contract, and
(ii) in the case of an entity that is a provider of services (as defined in
(D) a waiver of any coinsurance under part B of subchapter XVIII by a Federally qualified health care center with respect to an individual who qualifies for subsidized services under a provision of the Public Health Service Act [
(E) any payment practice specified by the Secretary in regulations promulgated pursuant to section 14(a) of the Medicare and Medicaid Patient and Program Protection Act of 1987 or in regulations under section 1395w–104(e)(6) 1 of this title;
(F) any remuneration between an organization and an individual or entity providing items or services, or a combination thereof, pursuant to a written agreement between the organization and the individual or entity if the organization is an eligible organization under
(G) the waiver or reduction by pharmacies (including pharmacies of the Indian Health Service, Indian tribes, tribal organizations, and urban Indian organizations) of any cost-sharing imposed under part D of subchapter XVIII, if the conditions described in clauses (i) through (iii) of
(H) any remuneration between a federally qualified health center (or an entity controlled by such a health center) and an MA organization pursuant to a written agreement described in
(I) any remuneration between a health center entity described under clause (i) or (ii) of
(J) a discount in the price of an applicable drug (as defined in paragraph (2) of
(K) an incentive payment made to a Medicare fee-for-service beneficiary by an ACO under an ACO Beneficiary Incentive Program established under subsection (m) of
(L) a bona fide mental health or behavioral health improvement or maintenance program, if—
(i) such program—
(I) consists of counseling, mental health services, a suicide prevention program, or a substance use disorder prevention and treatment program;
(II) is made available to a physician or other clinician for the primary purpose of preventing suicide, improving mental health and resiliency, or providing training in appropriate strategies to promote the mental health and resiliency of such physician or other clinician;
(III) is set out in a written policy, approved in advance of the operation of the program by the governing body of the entity providing such program (and which shall be updated accordingly in advance to substantial changes to the operation of such program), that includes—
(aa) a description of the content and duration of the program;
(bb) a description of the evidence-based support for the design of the program;
(cc) the estimated cost of the program;
(dd) the personnel (including the qualifications of such personnel) implementing the program; and
(ee) the method by which such entity will evaluate the use and success of the program;
(IV) is offered by an entity described in clause (ii) with a formal medical staff to all physicians and other clinicians who practice in the geographic area served by such entity, including physicians who hold bona fide appointments to the medical staff of such entity or otherwise have clinical privileges at such entity;
(V) is offered to all such physicians and clinicians on the same terms and conditions and without regard to the volume or value of referrals or other business generated by a physician or clinician for such entity;
(VI) is evidence-based and conducted by a qualified health professional; and
(VII) meets such other requirements the Secretary may impose by regulation as needed to protect against program or patient abuse;
(ii) such entity is—
(I) a hospital;
(II) an ambulatory surgical center;
(III) a community health center;
(IV) a rural emergency hospital;
(V) a skilled nursing facility; or
(VI) any similar entity, as determined by the Secretary; and
(iii) neither the provision of such program, nor the value of such program, are contingent upon the number or value of referrals made by a physician or other clinician to such entity or the amount or value of other business generated by such physician for the entity.
(4) Whoever without lawful authority knowingly and willfully purchases, sells or distributes, or arranges for the purchase, sale, or distribution of a beneficiary identification number or unique health identifier for a health care provider under subchapter XVIII, subchapter XIX, or subchapter XXI shall be imprisoned for not more than 10 years or fined not more than $500,000 ($1,000,000 in the case of a corporation), or both.
(c) False statements or representations with respect to condition or operation of institutions
Whoever knowingly and willfully makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation of any institution, facility, or entity in order that such institution, facility, or entity may qualify (either upon initial certification or upon recertification) as a hospital, critical access hospital, skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity (including an eligible organization under
(d) Illegal patient admittance and retention practices
Whoever knowingly and willfully—
(1) charges, for any service provided to a patient under a State plan approved under subchapter XIX, money or other consideration at a rate in excess of the rates established by the State (or, in the case of services provided to an individual enrolled with a medicaid managed care organization under subchapter XIX under a contract under
(2) charges, solicits, accepts, or receives, in addition to any amount otherwise required to be paid under a State plan approved under subchapter XIX, any gift, money, donation, or other consideration (other than a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to the patient)—
(A) as a precondition of admitting a patient to a hospital, nursing facility, or intermediate care facility for the mentally retarded, or
(B) as a requirement for the patient's continued stay in such a facility,
when the cost of the services provided therein to the patient is paid for (in whole or in part) under the State plan,
shall be guilty of a felony and upon conviction thereof shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both.
(e) Violation of assignment terms
Whoever accepts assignments described in
(f) "Federal health care program" defined
For purposes of this section, the term "Federal health care program" means—
(1) any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government (other than the health insurance program under
(2) any State health care program, as defined in
(g) Liability under subchapter III of chapter 37 of title 31
In addition to the penalties provided for in this section or
(h) Actual knowledge or specific intent not required
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.
(Aug. 14, 1935, ch. 531, title XI, §1128B, formerly title XVIII, §1877(d), and title XIX, §1909, as added and amended
Editorial Notes
References in Text
The Public Health Service Act, referred to in subsec. (b)(3)(D), is act July 1, 1944, ch. 373,
Section 14(a) of the Medicare and Medicaid Patient and Program Protection Act of 1987, referred to in subsec. (b)(3)(E), is section 14(a) of
Codification
Prior to redesignation by
Amendments
2022—Subsec. (b)(3)(L).
2018—Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3)(K).
Subsec. (c).
Subsec. (d).
Subsec. (e).
2015—Subsec. (b)(4).
2010—Subsec. (b)(3)(G).
Subsec. (b)(3)(H).
Subsec. (b)(3)(I).
Subsec. (b)(3)(J).
Subsecs. (g), (h).
2003—Subsec. (b)(3)(E).
Subsec. (b)(3)(G).
Subsec. (b)(3)(H).
1997—Subsec. (a).
Subsec. (a)(6).
Subsec. (c).
Subsec. (d)(1).
1996—
Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (b).
Subsec. (b)(3)(F).
Subsec. (c).
Subsec. (f).
1994—Subsec. (b)(3)(B).
1990—Subsec. (b)(3)(D), (E).
Subsec. (c).
1989—Subsec. (c).
1988—Subsec. (c).
Subsec. (d)(2)(A).
1987—
Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(5).
Subsec. (b)(1)(A), (B), (2)(A), (B).
Subsec. (b)(3).
Subsec. (c).
Subsec. (d)(1), (2).
Subsec. (e).
1984—Subsec. (e).
1980—Subsec. (b)(1), (2).
1977—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1972—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Effective Date of 2003 Amendment
Effective Date of 1997 Amendment
Amendment by section 4201(c)(1) of
Amendment by section 4704(b) of
Effective Date of 1996 Amendment
Amendment by section 217 of
Effective Date of 1994 Amendment
Amendment by section 133(a)(2) of
Effective Date of 1990 Amendment
Amendment by section 4161(a)(4) of
Amendment by section 4164(b)(2) of
Effective Date of 1988 Amendment
Except as specifically provided in section 411 of
Effective Date of 1987 Amendments
Amendment by section 4211(h)(7) of
Amendment by
Effective Date of 1977 Amendment
Effective Date
Moratorium on Implementation of Rule Relating to Eliminating the Anti-Kickback Statute Safe Harbor Protection for Prescription Drug Rebates
Similar provisions were contained in the following prior act:
Rulemaking for Exception for Health Center Entity Arrangements
"(1)
"(A)
"(B)
"(i) Whether the arrangement between the health center entity and the other party results in savings of Federal grant funds or increased revenues to the health center entity.
"(ii) Whether the arrangement between the health center entity and the other party restricts or limits an individual's freedom of choice.
"(iii) Whether the arrangement between the health center entity and the other party protects a health care professional's independent medical judgment regarding medically appropriate treatment.
The Secretary may also include other standards and criteria that are consistent with the intent of Congress in enacting the exception established under this section.
"(2)
Negotiated Rulemaking for Risk-Sharing Exception
"(1)
"(A)
"(B)
"(i) shall consult with the Attorney General and representatives of the hospital, physician, other health practitioner, and health plan communities, and other interested parties; and
"(ii) shall take into account—
"(I) the level of risk appropriate to the size and type of arrangement;
"(II) the frequency of assessment and distribution of incentives;
"(III) the level of capital contribution; and
"(IV) the extent to which the risk-sharing arrangement provides incentives to control the cost and quality of health care services.
"(2)
"(3)
"(4)
"(5)
"(A) the appointment of a negotiated rulemaking committee under section 565(a) of such title by not later than 30 days after the end of the comment period provided for under section 564(c) of such title (as shortened under paragraph (4)), and
"(B) the nomination of a facilitator under section 566(c) of such title by not later than 10 days after the date of appointment of the committee.
"(6)
"(7)
"(8)
"(9)
Anti-Kickback Regulations
Executive Documents
Ex. Ord. No. 13939. Lowering Prices for Patients by Eliminating Kickbacks to Middlemen
Ex. Ord. No. 13939, July 24, 2020, 85 F.R. 45759, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Fixing this problem could save Medicare patients billions of dollars. The Office of the Inspector General at the Department of Health and Human Services has found that patients in the catastrophic phase of the Medicare Part D program saw their out-of-pocket costs for high-price drugs increase by 47 percent from 2010 to 2015, from $175 per month to $257 per month. Narrowing the safe harbor for these discounts under the anti-kickback statute will allow tens of billions in dollars of rebates on prescription drugs in the Medicare Part D program to go directly to patients, saving many patients hundreds or thousands of dollars per year at the pharmacy counter.
(a) exclude from safe harbor protections under the anti-kickback statute, section 1128B(b) of the Social Security Act,
(b) establish new safe harbors that would permit health plan sponsors, pharmacies, and PBMs to apply discounts at the patient's point-of-sale in order to lower the patient's out-of-pocket costs, and that would permit the use of certain bona fide PBM service fees.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
1 See References in Text note below.
§1320a–7c. Fraud and abuse control program
(a) Establishment of program
(1) In general
Not later than January 1, 1997, the Secretary, acting through the Office of the Inspector General of the Department of Health and Human Services, and the Attorney General shall establish a program—
(A) to coordinate Federal, State, and local law enforcement programs to control fraud and abuse with respect to health plans,
(B) to conduct investigations, audits, evaluations, and inspections relating to the delivery of and payment for health care in the United States,
(C) to facilitate the enforcement of the provisions of
(D) to provide for the modification and establishment of safe harbors and to issue advisory opinions and special fraud alerts pursuant to
(2) Coordination with health plans
In carrying out the program established under paragraph (1), the Secretary and the Attorney General shall consult with, and arrange for the sharing of data with representatives of health plans.
(3) Guidelines
(A) In general
The Secretary and the Attorney General shall issue guidelines to carry out the program under paragraph (1). The provisions of
(B) Information guidelines
(i) In general
Such guidelines shall include guidelines relating to the furnishing of information by health plans, providers, and others to enable the Secretary and the Attorney General to carry out the program (including coordination with health plans under paragraph (2)).
(ii) Confidentiality
Such guidelines shall include procedures to assure that such information is provided and utilized in a manner that appropriately protects the confidentiality of the information and the privacy of individuals receiving health care services and items.
(iii) Qualified immunity for providing information
The provisions of
(4) Ensuring access to documentation
The Inspector General of the Department of Health and Human Services is authorized to exercise such authority described in paragraphs (3) through (9) of
(5) Authority of Inspector General
Nothing in this chapter shall be construed to diminish the authority of any Inspector General, including such authority as provided in
(6) Public-private partnership for waste, fraud, and abuse detection
(A) In general
Under the program described in paragraph (1), there is established a public-private partnership (in this paragraph referred to as the "partnership") of health plans, Federal and State agencies, law enforcement agencies, health care anti-fraud organizations, and any other entity determined appropriate by the Secretary (in this paragraph referred to as "partners") for purposes of detecting and preventing health care waste, fraud, and abuse.
(B) Contract with trusted third party
In carrying out the partnership, the Secretary shall enter into a contract with a trusted third party for purposes of carrying out the duties of the partnership described in subparagraph (C).
(C) Duties of partnership
The partnership shall—
(i) provide technical and operational support to facilitate data sharing between partners in the partnership;
(ii) analyze data so shared to identify fraudulent and aberrant billing patterns;
(iii) conduct aggregate analyses of health care data so shared across Federal, State, and private health plans for purposes of detecting fraud, waste, and abuse schemes;
(iv) identify outlier trends and potential vulnerabilities of partners in the partnership with respect to such schemes;
(v) refer specific cases of potential unlawful conduct to appropriate governmental entities;
(vi) convene, not less than annually, meetings with partners in the partnership for purposes of providing updates on the partnership's work and facilitating information sharing between the partners;
(vii) enter into data sharing and data use agreements with partners in the partnership in such a manner so as to ensure the partnership has access to data necessary to identify waste, fraud, and abuse while maintaining the confidentiality and integrity of such data;
(viii) provide partners in the partnership with plan-specific, confidential feedback on any aberrant billing patterns or potential fraud identified by the partnership with respect to such partner;
(ix) establish a process by which entities described in subparagraph (A) may enter the partnership and requirements such entities must meet to enter the partnership;
(x) provide appropriate training, outreach, and education to partners based on the results of data analyses described in clauses (ii) and (iii); and
(xi) perform such other duties as the Secretary determines appropriate.
(D) Substance use disorder treatment analysis
Not later than 2 years after December 27, 2020, the trusted third party with a contract in effect under subparagraph (B) shall perform an analysis of aberrant or fraudulent billing patterns and trends with respect to providers and suppliers of substance use disorder treatments from data shared with the partnership.
(E) Executive board
(i) Executive board composition
(I) In general
There shall be an executive board of the partnership comprised of representatives of the Federal Government and representatives of the private sector selected by the Secretary.
(II) Chairs
The executive board shall be co-chaired by one Federal Government official and one representative from the private sector.
(ii) Meetings
The executive board of the partnership shall meet at least once per year.
(iii) Executive board duties
The duties of the executive board shall include the following:
(I) Providing strategic direction for the partnership, including membership criteria and a mission statement.
(II) Communicating with the leadership of the Department of Health and Human Services and the Department of Justice and the various private health sector associations.
(F) Reports
Not later than January 1, 2023, and every 2 years thereafter, the Secretary shall submit to Congress and make available on the public website of the Centers for Medicare & Medicaid Services a report containing—
(i) a review of activities conducted by the partnership over the 2-year period ending on the date of the submission of such report, including any progress to any objectives established by the partnership;
(ii) any savings voluntarily reported by health plans participating in the partnership attributable to the partnership during such period;
(iii) any savings to the Federal Government attributable to the partnership during such period;
(iv) any other outcomes attributable to the partnership, as determined by the Secretary, during such period; and
(v) a strategic plan for the 2-year period beginning on the day after the date of the submission of such report, including a description of any emerging fraud and abuse schemes, trends, or practices that the partnership intends to study during such period.
(G) Funding
The partnership shall be funded by amounts otherwise made available to the Secretary for carrying out the program described in paragraph (1).
(H) Transitional provisions
To the extent consistent with this subsection, all functions, personnel, assets, liabilities, and administrative actions applicable on the date before December 27, 2020, to the National Fraud Prevention Partnership established on September 17, 2012, by charter of the Secretary shall be transferred to the partnership established under subparagraph (A) as of December 27, 2020.
(I) Nonapplicability of FACA
The provisions of the Federal Advisory Committee Act shall not apply to the partnership established by subparagraph (A).
(J) Implementation
Notwithstanding any other provision of law, the Secretary may implement the partnership established by subparagraph (A) by program instruction or otherwise.
(K) Definition
For purposes of this paragraph, the term "trusted third party" means an entity that—
(i) demonstrates the capability to carry out the duties of the partnership described in subparagraph (C);
(ii) complies with such conflict of interest standards determined appropriate by the Secretary; and
(iii) meets such other requirements as the Secretary may prescribe.
(b) Additional use of funds by Inspector General
(1) Reimbursements for investigations
The Inspector General of the Department of Health and Human Services is authorized to receive and retain for current use reimbursement for the costs of conducting investigations and audits and for monitoring compliance plans when such costs are ordered by a court, voluntarily agreed to by the payor, or otherwise.
(2) Crediting
Funds received by the Inspector General under paragraph (1) as reimbursement for costs of conducting investigations shall be deposited to the credit of the appropriation from which initially paid, or to appropriations for similar purposes currently available at the time of deposit, and shall remain available for obligation for 1 year from the date of the deposit of such funds.
(c) "Health plan" defined
For purposes of this section, the term "health plan" means a plan or program that provides health benefits, whether directly, through insurance, or otherwise, and includes—
(1) a policy of health insurance;
(2) a contract of a service benefit organization; and
(3) a membership agreement with a health maintenance organization or other prepaid health plan.
(Aug. 14, 1935, ch. 531, title XI, §1128C, as added
Editorial Notes
References in Text
The Federal Advisory Committee Act, referred to in subsec. (a)(6)(I), is
Amendments
2022—Subsec. (a)(4).
Subsec. (a)(5).
2020—Subsec. (a)(6).
2010—Subsec. (a)(1)(C) to (E).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by
§1320a–7d. Guidance regarding application of health care fraud and abuse sanctions
(a) Solicitation and publication of modifications to existing safe harbors and new safe harbors
(1) In general
(A) Solicitation of proposals for safe harbors
Not later than January 1, 1997, and not less than annually thereafter, the Secretary shall publish a notice in the Federal Register soliciting proposals, which will be accepted during a 60-day period, for—
(i) modifications to existing safe harbors issued pursuant to section 14(a) of the Medicare and Medicaid Patient and Program Protection Act of 1987 (
(ii) additional safe harbors specifying payment practices that shall not be treated as a criminal offense under
(iii) advisory opinions to be issued pursuant to subsection (b); and
(iv) special fraud alerts to be issued pursuant to subsection (c).
(B) Publication of proposed modifications and proposed additional safe harbors
After considering the proposals described in clauses (i) and (ii) of subparagraph (A), the Secretary, in consultation with the Attorney General, shall publish in the Federal Register proposed modifications to existing safe harbors and proposed additional safe harbors, if appropriate, with a 60-day comment period. After considering any public comments received during this period, the Secretary shall issue final rules modifying the existing safe harbors and establishing new safe harbors, as appropriate.
(C) Report
The Inspector General of the Department of Health and Human Services (in this section referred to as the "Inspector General") shall, in an annual report to Congress or as part of the year-end semiannual report required by
(2) Criteria for modifying and establishing safe harbors
In modifying and establishing safe harbors under paragraph (1)(B), the Secretary may consider the extent to which providing a safe harbor for the specified payment practice may result in any of the following:
(A) An increase or decrease in access to health care services.
(B) An increase or decrease in the quality of health care services.
(C) An increase or decrease in patient freedom of choice among health care providers.
(D) An increase or decrease in competition among health care providers.
(E) An increase or decrease in the ability of health care facilities to provide services in medically underserved areas or to medically underserved populations.
(F) An increase or decrease in the cost to Federal health care programs (as defined in
(G) An increase or decrease in the potential overutilization of health care services.
(H) The existence or nonexistence of any potential financial benefit to a health care professional or provider which may vary based on their decisions of—
(i) whether to order a health care item or service; or
(ii) whether to arrange for a referral of health care items or services to a particular practitioner or provider.
(I) Any other factors the Secretary deems appropriate in the interest of preventing fraud and abuse in Federal health care programs (as so defined).
(3) Consideration of safe harbor for certain contingency management interventions
(A) In general
Not later than one year after December 29, 2022, the Inspector General shall conduct a review on whether to establish a safe harbor described in paragraph (1)(A)(ii) for evidence-based contingency management incentives and the parameters for such a safe harbor. In conducting the review under the previous sentence, the Inspector General shall consider the extent to which providing such a safe harbor for evidence-based contingency management incentives may result in any of the factors described in paragraph (2).
(B) Report
Not later than two years after December 29, 2022, the Secretary and the Inspector General shall submit to Congress recommendations, including based on the review conducted under subparagraph (A), for improving access to evidence-based contingency management interventions while ensuring quality of care, ensuring fidelity to evidence-based practices, and including strong program integrity safeguards that prevent increased waste, fraud, and abuse and prevent medically unnecessary or inappropriate items or services reimbursed in whole or in part by a Federal health care program.
(b) Advisory opinions
(1) Issuance of advisory opinions
The Secretary, in consultation with the Attorney General, shall issue written advisory opinions as provided in this subsection.
(2) Matters subject to advisory opinions
The Secretary shall issue advisory opinions as to the following matters:
(A) What constitutes prohibited remuneration within the meaning of
(B) Whether an arrangement or proposed arrangement satisfies the criteria set forth in
(C) Whether an arrangement or proposed arrangement satisfies the criteria which the Secretary has established, or shall establish by regulation for activities which do not result in prohibited remuneration.
(D) What constitutes an inducement to reduce or limit services to individuals entitled to benefits under subchapter XVIII or subchapter XIX within the meaning of
(E) Whether any activity or proposed activity constitutes grounds for the imposition of a sanction under
(3) Matters not subject to advisory opinions
Such advisory opinions shall not address the following matters:
(A) Whether the fair market value shall be, or was paid or received for any goods, services or property.
(B) Whether an individual is a bona fide employee within the requirements of section 3121(d)(2) of the Internal Revenue Code of 1986.
(4) Effect of advisory opinions
(A) Binding as to Secretary and parties involved
Each advisory opinion issued by the Secretary shall be binding as to the Secretary and the party or parties requesting the opinion.
(B) Failure to seek opinion
The failure of a party to seek an advisory opinion may not be introduced into evidence to prove that the party intended to violate the provisions of sections 1 1320a–7, 1320a–7a, or 1320a–7b of this title.
(5) Regulations
(A) In general
Not later than 180 days after August 21, 1996, the Secretary shall issue regulations to carry out this section. Such regulations shall provide for—
(i) the procedure to be followed by a party applying for an advisory opinion;
(ii) the procedure to be followed by the Secretary in responding to a request for an advisory opinion;
(iii) the interval in which the Secretary shall respond;
(iv) the reasonable fee to be charged to the party requesting an advisory opinion; and
(v) the manner in which advisory opinions will be made available to the public.
(B) Specific contents
Under the regulations promulgated pursuant to subparagraph (A)—
(i) the Secretary shall be required to issue to a party requesting an advisory opinion by not later than 60 days after the request is received; and
(ii) the fee charged to the party requesting an advisory opinion shall be equal to the costs incurred by the Secretary in responding to the request.
(6) Application of subsection
This subsection shall apply to requests for advisory opinions made on or after the date which is 6 months after August 21, 1996.
(c) Special fraud alerts
(1) In general
(A) Request for special fraud alerts
Any person may present, at any time, a request to the Inspector General for a notice which informs the public of practices which the Inspector General considers to be suspect or of particular concern under the Medicare program under subchapter XVIII or a State health care program, as defined in
(B) Issuance and publication of special fraud alerts
Upon receipt of a request described in subparagraph (A), the Inspector General shall investigate the subject matter of the request to determine whether a special fraud alert should be issued. If appropriate, the Inspector General shall issue a special fraud alert in response to the request. All special fraud alerts issued pursuant to this subparagraph shall be published in the Federal Register.
(2) Criteria for special fraud alerts
In determining whether to issue a special fraud alert upon a request described in paragraph (1), the Inspector General may consider—
(A) whether and to what extent the practices that would be identified in the special fraud alert may result in any of the consequences described in subsection (a)(2); and
(B) the volume and frequency of the conduct that would be identified in the special fraud alert.
(Aug. 14, 1935, ch. 531, title XI, §1128D, as added
Editorial Notes
References in Text
Section 14(a) of the Medicare and Medicaid Patient and Program Protection Act of 1987, referred to in subsec. (a)(1)(A)(i), is section 14(a) of
The Internal Revenue Code of 1986, referred to in subsec. (b)(3)(B), is classified generally to Title 26, Internal Revenue Code.
Amendments
2022—Subsec. (a)(1)(C).
Subsec. (a)(3).
2000—Subsec. (b)(6).
1998—Subsec. (b)(2)(A).
1997—Subsec. (b)(2)(D).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by
1 So in original. Probably should be "section".
§1320a–7e. Health care fraud and abuse data collection program
(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 (
(b) Reporting of information
(1) In general
Each Government agency and health plan shall report 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.
(2) Information to be reported
The information to be reported under paragraph (1) includes:
(A) The name and TIN (as defined in section 7701(a)(41) of the Internal Revenue Code of 1986) of any health care provider, supplier, or practitioner who is the subject of a final adverse action.
(B) The name (if known) of any health care entity with which a health care provider, supplier, or practitioner, who is the subject of a final adverse action, is affiliated or associated.
(C) The nature of the final adverse action and whether such action is on appeal.
(D) A description of the acts or omissions and injuries upon which the final adverse action was based, and such other information as the Secretary determines by regulation is required for appropriate interpretation of information reported under this section.
(3) Confidentiality
In determining what information is required, the Secretary shall include procedures to assure that the privacy of individuals receiving health care services is appropriately protected.
(4) Timing and form of reporting
The information required to be reported under this subsection shall be reported regularly (but not less often than monthly) and in such form and manner as the Secretary prescribes. Such information shall first be required to be reported on a date specified by the Secretary.
(5) To whom reported
The information required to be reported under this subsection shall be reported to the Secretary.
(6) Sanctions for failure to report
(A) Health plans
Any health plan that fails to report information on an adverse action required to be reported under this subsection shall be subject to a civil money penalty of not more than $25,000 for each such adverse action not reported. Such penalty shall be imposed and collected in the same manner as civil money penalties under subsection (a) of
(B) Governmental agencies
The Secretary shall provide for a publication of a public report that identifies those Government agencies that have failed to report information on adverse actions as required to be reported under this subsection.
(c) Disclosure and correction of information
(1) Disclosure
With respect to the information about final adverse actions (not including settlements in which no findings of liability have been made) reported to the Secretary under this section with respect to a health care provider, supplier, or practitioner, the Secretary shall, by regulation, provide for—
(A) disclosure of the information, upon request, to the health care provider, supplier, or licensed practitioner, and
(B) procedures in the case of disputed accuracy of the information.
(2) Corrections
Each Government agency and health plan shall report corrections of information already reported about any final adverse action taken against a health care provider, supplier, or practitioner, in such form and manner that the Secretary prescribes by regulation.
(d) Access to reported information
(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
(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.
(e) Protection from liability for reporting
No person or entity, including the agency designated by the Secretary in subsection (b)(5) shall be held liable in any civil action with respect to any report made as required by this section, without knowledge of the falsity of the information contained in the report.
(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 (
(g) Definitions and special rules
For purposes of this section:
(1) Final adverse action
(A) In general
The term "final adverse action" includes:
(i) Civil judgments against a health care provider, supplier, or practitioner in Federal or State court related to the delivery of a health care item or service.
(ii) Federal or State criminal convictions related to the delivery of a health care item or service.
(iii) Actions by Federal agencies responsible for the licensing and certification of health care providers, suppliers, and licensed health care practitioners, including—
(I) formal or official actions, such as revocation or suspension of a license (and the length of any such suspension), reprimand, censure or probation,
(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 1
(III) any other loss of license or the right to apply for, or renew, a license of the provider, supplier, or practitioner, whether by operation of law, voluntary surrender, non-renewability, or otherwise, or
(IV) any other negative action or finding by such Federal agency that is publicly available information.
(iv) Exclusion from participation in a Federal health care program (as defined in
(v) Any other adjudicated actions or decisions that the Secretary shall establish by regulation.
(B) Exception
The term does not include any action with respect to a malpractice claim.
(2) Practitioner
The terms "licensed health care practitioner", "licensed practitioner", and "practitioner" mean, with respect to a State, an individual who is licensed or otherwise authorized by the State to provide health care services (or any individual who, without authority holds himself or herself out to be so licensed or authorized).
(3) Government agency
The term "Government agency" shall include:
(A) The Department of Justice.
(B) The Department of Health and Human Services.
(C) Any other Federal agency that either administers or provides payment for the delivery of health care services, including, but not limited to the Department of Defense and the Department of Veterans Affairs.
(D) Federal agencies responsible for the licensing and certification of health care providers and licensed health care practitioners.
(4) Health plan
The term "health plan" has the meaning given such term by
(5) Determination of conviction
For purposes of paragraph (1), the existence of a conviction shall be determined under paragraphs (1) through (4) of
(Aug. 14, 1935, ch. 531, title XI, §1128E, as added
Editorial Notes
References in Text
The Health Care Quality Improvement Act of 1986, referred to in subsecs. (a) and (f), is title IV of
The Internal Revenue Code of 1986, referred to in subsec. (b)(2)(A), is classified generally to Title 26, Internal Revenue Code.
Amendments
2010—Subsec. (a).
Subsec. (d).
"(1)
"(2)
Subsec. (f).
Subsec. (g)(1)(A)(iii).
Subsec. (g)(1)(A)(iii)(II).
Subsec. (g)(1)(A)(iii)(III).
Subsec. (g)(1)(A)(iii)(IV).
Subsec. (g)(1)(A)(iv).
Subsec. (g)(3)(D).
Subsec. (g)(3)(E).
Subsec. (g)(3)(F).
1997—Subsec. (b)(6).
Subsec. (g)(3)(C).
Subsec. (g)(5).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
"(1)
"(2)
"(3)
Transition Process; Regulations; Effective Date of 2010 Amendment
"(1)
"(2)
"(3)
"(A)
"(B)
"(4)
"(A)
"(B)
"(5)
"(A) the date that is 1 year after such date of enactment; or
"(B) the effective date of the regulations promulgated under paragraph (2).
"(6)
1 So in original. Probably should be followed by a comma.
§1320a–7f. Coordination of medicare and medicaid surety bond provisions
In the case of a home health agency that is subject to a surety bond requirement under subchapter XVIII and subchapter XIX, the surety bond provided to satisfy the requirement under one such subchapter shall satisfy the requirement under the other such subchapter so long as the bond applies to guarantee return of overpayments under both such subchapters.
(Aug. 14, 1935, ch. 531, title XI, §1128F, as added
§1320a–7g. Funds to reduce medicaid fraud and abuse
(1) In general
For purposes of reducing fraud and abuse in the Medicaid program under title XIX of the Social Security Act [
(A) there is appropriated to the Office of the Inspector General of the Department of Health and Human Services, out of any money in the Treasury not otherwise appropriated, $25,000,000, for fiscal year 2009; and
(B) there is authorized to be appropriated to such Office $25,000,000 for fiscal year 2010 and each subsequent fiscal year.
Amounts appropriated under this section shall remain available for expenditure until expended and shall be in addition to any other amounts appropriated or made available to such Office for such purposes with respect to the Medicaid program.
(2) Annual report
Not later than September 30 of 2009 and of each subsequent year, the Inspector General of the Department of Health and Human Services shall submit to the Committees on Energy and Commerce and Appropriations of the House of Representatives and the Committees on Finance and Appropriations of the Senate a report on the activities (and the results of such activities) funded under paragraph (1) to reduce waste, fraud, and abuse in the Medicaid program under title XIX of the Social Security Act [
(
Editorial Notes
References in Text
The Social Security Act, referred to in text, is act Aug. 14, 1935, ch. 531,
This section, referred to in par. (1), means section 7001 of
Codification
Section was enacted as part of the Supplemental Appropriations Act, 2008, and not as part of the Social Security Act which comprises this chapter.
§1320a–7h. Transparency reports and reporting of physician ownership or investment interests
(a) Transparency reports
(1) Payments or other transfers of value
(A) In general
On March 31, 2013, and on the 90th day of each calendar year beginning thereafter, any applicable manufacturer that provides a payment or other transfer of value to a covered recipient (or to an entity or individual at the request of or designated on behalf of a covered recipient), shall submit to the Secretary, in such electronic form as the Secretary shall require, the following information with respect to the preceding calendar year:
(i) The name of the covered recipient.
(ii) The business address of the covered recipient and, in the case of a covered recipient who is a physician, the specialty and National Provider Identifier of the covered recipient.
(iii) The amount of the payment or other transfer of value.
(iv) The dates on which the payment or other transfer of value was provided to the covered recipient.
(v) A description of the form of the payment or other transfer of value, indicated (as appropriate for all that apply) as—
(I) cash or a cash equivalent;
(II) in-kind items or services;
(III) stock, a stock option, or any other ownership interest, dividend, profit, or other return on investment; or
(IV) any other form of payment or other transfer of value (as defined by the Secretary).
(vi) A description of the nature of the payment or other transfer of value, indicated (as appropriate for all that apply) as—
(I) consulting fees;
(II) compensation for services other than consulting;
(III) honoraria;
(IV) gift;
(V) entertainment;
(VI) food;
(VII) travel (including the specified destinations);
(VIII) education;
(IX) research;
(X) charitable contribution;
(XI) royalty or license;
(XII) current or prospective ownership or investment interest;
(XIII) direct compensation for serving as faculty or as a speaker for a medical education program;
(XIV) grant; or
(XV) any other nature of the payment or other transfer of value (as defined by the Secretary).
(vii) If the payment or other transfer of value is related to marketing, education, or research specific to a covered drug, device, biological, or medical supply, the name of that covered drug, device, biological, or medical supply.
(viii) Any other categories of information regarding the payment or other transfer of value the Secretary determines appropriate.
(B) Special rule for certain payments or other transfers of value
In the case where an applicable manufacturer provides a payment or other transfer of value to an entity or individual at the request of or designated on behalf of a covered recipient, the applicable manufacturer shall disclose that payment or other transfer of value under the name of the covered recipient.
(2) Physician ownership
In addition to the requirement under paragraph (1)(A), on March 31, 2013, and on the 90th day of each calendar year beginning thereafter, any applicable manufacturer or applicable group purchasing organization shall submit to the Secretary, in such electronic form as the Secretary shall require, the following information regarding any ownership or investment interest (other than an ownership or investment interest in a publicly traded security and mutual fund, as described in
(A) The dollar amount invested by each physician holding such an ownership or investment interest.
(B) The value and terms of each such ownership or investment interest.
(C) Any payment or other transfer of value provided to a physician holding such an ownership or investment interest (or to an entity or individual at the request of or designated on behalf of a physician holding such an ownership or investment interest), including the information described in clauses (i) through (viii) of paragraph (1)(A), except that in applying such clauses, "physician" shall be substituted for "covered recipient" each place it appears.
(D) Any other information regarding the ownership or investment interest the Secretary determines appropriate.
(b) Penalties for noncompliance
(1) Failure to report
(A) In general
Subject to subparagraph (B) except as provided in paragraph (2), any applicable manufacturer or applicable group purchasing organization that fails to submit information required under subsection (a) in a timely manner in accordance with rules or regulations promulgated to carry out such subsection, shall be subject to a civil money penalty of not less than $1,000, but not more than $10,000, for each payment or other transfer of value or ownership or investment interest not reported as required under such subsection. Such penalty shall be imposed and collected in the same manner as civil money penalties under subsection (a) of
(B) Limitation
The total amount of civil money penalties imposed under subparagraph (A) with respect to each annual submission of information under subsection (a) by an applicable manufacturer or applicable group purchasing organization shall not exceed $150,000.
(2) Knowing failure to report
(A) In general
Subject to subparagraph (B), any applicable manufacturer or applicable group purchasing organization that knowingly fails to submit information required under subsection (a) in a timely manner in accordance with rules or regulations promulgated to carry out such subsection, shall be subject to a civil money penalty of not less than $10,000, but not more than $100,000, for each payment or other transfer of value or ownership or investment interest not reported as required under such subsection. Such penalty shall be imposed and collected in the same manner as civil money penalties under subsection (a) of
(B) Limitation
The total amount of civil money penalties imposed under subparagraph (A) with respect to each annual submission of information under subsection (a) by an applicable manufacturer or applicable group purchasing organization shall not exceed $1,000,000.
(3) Use of funds
Funds collected by the Secretary as a result of the imposition of a civil money penalty under this subsection shall be used to carry out this section.
(c) Procedures for submission of information and public availability
(1) In general
(A) Establishment
Not later than October 1, 2011, the Secretary shall establish procedures—
(i) for applicable manufacturers and applicable group purchasing organizations to submit information to the Secretary under subsection (a); and
(ii) for the Secretary to make such information submitted available to the public.
(B) Definition of terms
The procedures established under subparagraph (A) shall provide for the definition of terms (other than those terms defined in subsection (e)), as appropriate, for purposes of this section.
(C) Public availability
Except as provided in subparagraph (E), the procedures established under subparagraph (A)(ii) shall ensure that, not later than September 30, 2013, and on June 30 of each calendar year beginning thereafter, the information submitted under subsection (a) with respect to the preceding calendar year is made available through an Internet website that—
(i) is searchable and is in a format that is clear and understandable;
(ii) contains information that is presented by the name of the applicable manufacturer or applicable group purchasing organization, the name of the covered recipient, the business address of the covered recipient, the specialty of the covered recipient, the value of the payment or other transfer of value, the date on which the payment or other transfer of value was provided to the covered recipient, the form of the payment or other transfer of value, indicated (as appropriate) under subsection (a)(1)(A)(v), the nature of the payment or other transfer of value, indicated (as appropriate) under subsection (a)(1)(A)(vi), and the name of the covered drug, device, biological, or medical supply, as applicable;
(iii) contains information that is able to be easily aggregated and downloaded;
(iv) contains a description of any enforcement actions taken to carry out this section, including any penalties imposed under subsection (b), during the preceding year;
(v) contains background information on industry-physician relationships;
(vi) in the case of information submitted with respect to a payment or other transfer of value described in subparagraph (E)(i), lists such information separately from the other information submitted under subsection (a) and designates such separately listed information as funding for clinical research;
(vii) contains any other information the Secretary determines would be helpful to the average consumer;
(viii) in the case of information made available under this subparagraph prior to January 1, 2022, does not contain the National Provider Identifier of the covered recipient, and
(ix) subject to subparagraph (D), provides the applicable manufacturer, applicable group purchasing organization, or covered recipient an opportunity to review and submit corrections to the information submitted with respect to the applicable manufacturer, applicable group purchasing organization, or covered recipient, respectively, for a period of not less than 45 days prior to such information being made available to the public.
(D) Clarification of time period for review and corrections
In no case may the 45-day period for review and submission of corrections to information under subparagraph (C)(ix) prevent such information from being made available to the public in accordance with the dates described in the matter preceding clause (i) in subparagraph (C).
(E) Delayed publication for payments made pursuant to product research or development agreements and clinical investigations
(i) In general
In the case of information submitted under subsection (a) with respect to a payment or other transfer of value made to a covered recipient by an applicable manufacturer pursuant to a product research or development agreement for services furnished in connection with research on a potential new medical technology or a new application of an existing medical technology or the development of a new drug, device, biological, or medical supply, or by an applicable manufacturer in connection with a clinical investigation regarding a new drug, device, biological, or medical supply, the procedures established under subparagraph (A)(ii) shall provide that such information is made available to the public on the first date described in the matter preceding clause (i) in subparagraph (C) after the earlier of the following:
(I) The date of the approval or clearance of the covered drug, device, biological, or medical supply by the Food and Drug Administration.
(II) Four calendar years after the date such payment or other transfer of value was made.
(ii) Confidentiality of information prior to publication
Information described in clause (i) shall be considered confidential and shall not be subject to disclosure under
(2) Consultation
In establishing the procedures under paragraph (1), the Secretary shall consult with the Inspector General of the Department of Health and Human Services, affected industry, consumers, consumer advocates, and other interested parties in order to ensure that the information made available to the public under such paragraph is presented in the appropriate overall context.
(d) Annual reports and relation to State laws
(1) Annual report to Congress
Not later than April 1 of each year beginning with 2013, the Secretary shall submit to Congress a report that includes the following:
(A) The information submitted under subsection (a) during the preceding year, aggregated for each applicable manufacturer and applicable group purchasing organization that submitted such information during such year (except, in the case of information submitted with respect to a payment or other transfer of value described in subsection (c)(1)(E)(i), such information shall be included in the first report submitted to Congress after the date on which such information is made available to the public under such subsection).
(B) A description of any enforcement actions taken to carry out this section, including any penalties imposed under subsection (b), during the preceding year.
(2) Annual reports to States
Not later than September 30, 2013 and on June 30 of each calendar year thereafter, the Secretary shall submit to States a report that includes a summary of the information submitted under subsection (a) during the preceding year with respect to covered recipients in the State (except, in the case of information submitted with respect to a payment or other transfer of value described in subsection (c)(1)(E)(i), such information shall be included in the first report submitted to States after the date on which such information is made available to the public under such subsection).
(3) Relation to State laws
(A)
(B)
(i) not of the type required to be disclosed or reported under this section;
(ii) described in subsection (e)(10)(B), except in the case of information described in clause (i) of such subsection;
(iii) by any person or entity other than an applicable manufacturer (as so defined) or a covered recipient (as defined in subsection (e)); or
(iv) to a Federal, State, or local governmental agency for public health surveillance, investigation, or other public health purposes or health oversight purposes.
(C) Nothing in subparagraph (A) shall be construed to limit the discovery or admissibility of information described in such subparagraph in a criminal, civil, or administrative proceeding.
(4) Consultation
The Secretary shall consult with the Inspector General of the Department of Health and Human Services on the implementation of this section.
(e) Definitions
In this section:
(1) Applicable group purchasing organization
The term "applicable group purchasing organization" means a group purchasing organization (as defined by the Secretary) that purchases, arranges for, or negotiates the purchase of a covered drug, device, biological, or medical supply which is operating in the United States, or in a territory, possession, or commonwealth of the United States.
(2) Applicable manufacturer
The term "applicable manufacturer" means a manufacturer of a covered drug, device, biological, or medical supply which is operating in the United States, or in a territory, possession, or commonwealth of the United States.
(3) Clinical investigation
The term "clinical investigation" means any experiment involving 1 or more human subjects, or materials derived from human subjects, in which a drug or device is administered, dispensed, or used.
(4) Covered device
The term "covered device" means any device for which payment is available under subchapter XVIII or a State plan under subchapter XIX or XXI (or a waiver of such a plan).
(5) Covered drug, device, biological, or medical supply
The term "covered drug, device, biological, or medical supply" means any drug, biological product, device, or medical supply for which payment is available under subchapter XVIII or a State plan under subchapter XIX or XXI (or a waiver of such a plan).
(6) Covered recipient
(A) In general
Except as provided in subparagraph (B), the term "covered recipient" means the following:
(i) A physician.
(ii) A teaching hospital.
(iii) A physician assistant, nurse practitioner, or clinical nurse specialist (as such terms are defined in
(iv) A certified registered nurse anesthetist (as defined in
(v) A certified nurse-midwife (as defined in
(B) Exclusion
Such term does not include a physician, physician assistant, nurse practitioner, clinical nurse specialist, certified nurse anesthetist, or certified nurse-midwife who is an employee of the applicable manufacturer that is required to submit information under subsection (a).
(7) Employee
The term "employee" has the meaning given such term in
(8) Knowingly
The term "knowingly" has the meaning given such term in
(9) Manufacturer of a covered drug, device, biological, or medical supply
The term "manufacturer of a covered drug, device, biological, or medical supply" means any entity which is engaged in the production, preparation, propagation, compounding, or conversion of a covered drug, device, biological, or medical supply (or any entity under common ownership with such entity which provides assistance or support to such entity with respect to the production, preparation, propagation, compounding, conversion, marketing, promotion, sale, or distribution of a covered drug, device, biological, or medical supply).
(10) Payment or other transfer of value
(A) In general
The term "payment or other transfer of value" means a transfer of anything of value. Such term does not include a transfer of anything of value that is made indirectly to a covered recipient through a third party in connection with an activity or service in the case where the applicable manufacturer is unaware of the identity of the covered recipient.
(B) Exclusions
An applicable manufacturer shall not be required to submit information under subsection (a) with respect to the following:
(i) A transfer of anything the value of which is less than $10, unless the aggregate amount transferred to, requested by, or designated on behalf of the covered recipient by the applicable manufacturer during the calendar year exceeds $100. For calendar years after 2012, the dollar amounts specified in the preceding sentence shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers (all items; U.S. city average) for the 12-month period ending with June of the previous year.
(ii) Product samples that are not intended to be sold and are intended for patient use.
(iii) Educational materials that directly benefit patients or are intended for patient use.
(iv) The loan of a covered device for a short-term trial period, not to exceed 90 days, to permit evaluation of the covered device by the covered recipient.
(v) Items or services provided under a contractual warranty, including the replacement of a covered device, where the terms of the warranty are set forth in the purchase or lease agreement for the covered device.
(vi) A transfer of anything of value to a covered recipient when the covered recipient is a patient and not acting in the professional capacity of a covered recipient.
(vii) Discounts (including rebates).
(viii) In-kind items used for the provision of charity care.
(ix) A dividend or other profit distribution from, or ownership or investment interest in, a publicly traded security and mutual fund (as described in
(x) In the case of an applicable manufacturer who offers a self-insured plan, payments for the provision of health care to employees under the plan.
(xi) In the case of a covered recipient who is a licensed non-medical professional, a transfer of anything of value to the covered recipient if the transfer is payment solely for the non-medical professional services of such licensed non-medical professional.
(xii) In the case of a covered recipient who is a physician, a transfer of anything of value to the covered recipient if the transfer is payment solely for the services of the covered recipient with respect to a civil or criminal action or an administrative proceeding.
(11) Physician
The term "physician" has the meaning given that term in
(Aug. 14, 1935, ch. 531, title XI, §1128G, as added
Editorial Notes
Amendments
2018—Subsec. (c)(1)(C)(viii).
Subsec. (e)(6)(A)(iii) to (v).
Subsec. (e)(6)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Administration
§1320a–7i. Reporting of information relating to drug samples
(a) In general
Not later than April 1 of each year (beginning with 2012), each manufacturer and authorized distributor of record of an applicable drug shall submit to the Secretary (in a form and manner specified by the Secretary) the following information with respect to the preceding year:
(1) In the case of a manufacturer or authorized distributor of record which makes distributions by mail or common carrier under subsection (d)(2) of
(A) the name, address, professional designation, and signature of the practitioner making the request under subparagraph (A)(i) of such subsection, or of any individual who makes or signs for the request on behalf of the practitioner; and
(B) any other category of information determined appropriate by the Secretary.
(2) In the case of a manufacturer or authorized distributor of record which makes distributions by means other than mail or common carrier under subsection (d)(3) of such
(A) the name, address, professional designation, and signature of the practitioner making the request under subparagraph (A)(i) of such subsection, or of any individual who makes or signs for the request on behalf of the practitioner; and
(B) any other category of information determined appropriate by the Secretary.
(b) Definitions
In this section:
(1) Applicable drug
The term "applicable drug" means a drug—
(A) which is subject to subsection (b) of such
(B) for which payment is available under subchapter XVIII or a State plan under subchapter XIX or XXI (or a waiver of such a plan).
(2) Authorized distributor of record
The term "authorized distributor of record" has the meaning given that term in subsection (e)(3)(A) of such section.
(3) Manufacturer
The term "manufacturer" has the meaning given that term for purposes of subsection (d) of such section.
(Aug. 14, 1935, ch. 531, title XI, §1128H, as added
§1320a–7j. Accountability requirements for facilities
(a) Definition of facility
In this section, the term "facility" means—
(1) a skilled nursing facility (as defined in
(2) a nursing facility (as defined in
(b) Effective compliance and ethics programs
(1) Requirement
On or after the date that is 36 months after March 23, 2010, a facility shall, with respect to the entity that operates the facility (in this subparagraph 1 referred to as the "operating organization" or "organization"), have in operation a compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations under this chapter and in promoting quality of care consistent with regulations developed under paragraph (2).
(2) Development of regulations
(A) In general
Not later than the date that is 2 years after March 23, 2010, the Secretary, working jointly with the Inspector General of the Department of Health and Human Services, shall promulgate regulations for an effective compliance and ethics program for operating organizations, which may include a model compliance program.
(B) Design of regulations
Such regulations with respect to specific elements or formality of a program shall, in the case of an organization that operates 5 or more facilities, vary with the size of the organization, such that larger organizations should have a more formal program and include established written policies defining the standards and procedures to be followed by its employees. Such requirements may specifically apply to the corporate level management of multi unit nursing home chains.
(C) Evaluation
Not later than 3 years after the date of the promulgation of regulations under this paragraph, the Secretary shall complete an evaluation of the compliance and ethics programs required to be established under this subsection. Such evaluation shall determine if such programs led to changes in deficiency citations, changes in quality performance, or changes in other metrics of patient quality of care. The Secretary shall submit to Congress a report on such evaluation and shall include in such report such recommendations regarding changes in the requirements for such programs as the Secretary determines appropriate.
(3) Requirements for compliance and ethics programs
In this subsection, the term "compliance and ethics program" means, with respect to a facility, a program of the operating organization that—
(A) has been reasonably designed, implemented, and enforced so that it generally will be effective in preventing and detecting criminal, civil, and administrative violations under this chapter and in promoting quality of care; and
(B) includes at least the required components specified in paragraph (4).
(4) Required components of program
The required components of a compliance and ethics program of an operating organization are the following:
(A) The organization must have established compliance standards and procedures to be followed by its employees and other agents that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under this chapter.
(B) Specific individuals within high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures and have sufficient resources and authority to assure such compliance.
(C) The organization must have used due care not to delegate substantial discretionary authority to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in criminal, civil, and administrative violations under this chapter.
(D) The organization must have taken steps to communicate effectively its standards and procedures to all employees and other agents, such as by requiring participation in training programs or by disseminating publications that explain in a practical manner what is required.
(E) The organization must have taken reasonable steps to achieve compliance with its standards, such as by utilizing monitoring and auditing systems reasonably designed to detect criminal, civil, and administrative violations under this chapter by its employees and other agents and by having in place and publicizing a reporting system whereby employees and other agents could report violations by others within the organization without fear of retribution.
(F) The standards must have been consistently enforced through appropriate disciplinary mechanisms, including, as appropriate, discipline of individuals responsible for the failure to detect an offense.
(G) After an offense has been detected, the organization must have taken all reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect criminal, civil, and administrative violations under this chapter.
(H) The organization must periodically undertake reassessment of its compliance program to identify changes necessary to reflect changes within the organization and its facilities.
(c) Quality assurance and performance improvement program
(1) In general
Not later than December 31, 2011, the Secretary shall establish and implement a quality assurance and performance improvement program (in this subparagraph referred to as the "QAPI program") for facilities, including multi unit chains of facilities. Under the QAPI program, the Secretary shall establish standards relating to quality assurance and performance improvement with respect to facilities and provide technical assistance to facilities on the development of best practices in order to meet such standards. Not later than 1 year after the date on which the regulations are promulgated under paragraph (2), a facility must submit to the Secretary a plan for the facility to meet such standards and implement such best practices, including how to coordinate the implementation of such plan with quality assessment and assurance activities conducted under
(2) Regulations
The Secretary shall promulgate regulations to carry out this subsection.
(f) 2 Standardized complaint form
(1) Development by the Secretary
The Secretary shall develop a standardized complaint form for use by a resident (or a person acting on the resident's behalf) in filing a complaint with a State survey and certification agency and a State long-term care ombudsman program with respect to a facility.
(2) Complaint forms and resolution processes
(A) Complaint forms
The State must make the standardized complaint form developed under paragraph (1) available upon request to—
(i) a resident of a facility; and
(ii) any person acting on the resident's behalf.
(B) Complaint resolution process
The State must establish a complaint resolution process in order to ensure that the legal representative of a resident of a facility or other responsible party is not denied access to such resident or otherwise retaliated against if they have complained about the quality of care provided by the facility or other issues relating to the facility. Such complaint resolution process shall include—
(i) procedures to assure accurate tracking of complaints received, including notification to the complainant that a complaint has been received;
(ii) procedures to determine the likely severity of a complaint and for the investigation of the complaint; and
(iii) deadlines for responding to a complaint and for notifying the complainant of the outcome of the investigation.
(3) Rule of construction
Nothing in this subsection shall be construed as preventing a resident of a facility (or a person acting on the resident's behalf) from submitting a complaint in a manner or format other than by using the standardized complaint form developed under paragraph (1) (including submitting a complaint orally).
(g) Submission of staffing information based on payroll data in a uniform format
Beginning not later than 2 years after March 23, 2010, and after consulting with State long-term care ombudsman programs, consumer advocacy groups, provider stakeholder groups, employees and their representatives, and other parties the Secretary deems appropriate, the Secretary shall require a facility to electronically submit to the Secretary direct care staffing information (including information with respect to agency and contract staff) based on payroll and other verifiable and auditable data in a uniform format (according to specifications established by the Secretary in consultation with such programs, groups, and parties). Such specifications shall require that the information submitted under the preceding sentence—
(1) specify the category of work a certified employee performs (such as whether the employee is a registered nurse, licensed practical nurse, licensed vocational nurse, certified nursing assistant, therapist, or other medical personnel);
(2) include resident census data and information on resident case mix;
(3) include a regular reporting schedule; and
(4) include information on employee turnover and tenure and on the hours of care provided by each category of certified employees referenced in paragraph (1) per resident per day.
Nothing in this subsection shall be construed as preventing the Secretary from requiring submission of such information with respect to specific categories, such as nursing staff, before other categories of certified employees. Information under this subsection with respect to agency and contract staff shall be kept separate from information on employee staffing.
(h) Notification of facility closure
(1) In general
Any individual who is the administrator of a facility must—
(A) submit to the Secretary, the State long-term care ombudsman, residents of the facility, and the legal representatives of such residents or other responsible parties, written notification of an impending closure—
(i) subject to clause (ii), not later than the date that is 60 days prior to the date of such closure; and
(ii) in the case of a facility where the Secretary terminates the facility's participation under this subchapter, not later than the date that the Secretary determines appropriate;
(B) ensure that the facility does not admit any new residents on or after the date on which such written notification is submitted; and
(C) include in the notice a plan for the transfer and adequate relocation of the residents of the facility by a specified date prior to closure that has been approved by the State, including assurances that the residents will be transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident.
(2) Relocation
(A) In general
The State shall ensure that, before a facility closes, all residents of the facility have been successfully relocated to another facility or an alternative home and community-based setting.
(B) Continuation of payments until residents relocated
The Secretary may, as the Secretary determines appropriate, continue to make payments under this subchapter with respect to residents of a facility that has submitted a notification under paragraph (1) during the period beginning on the date such notification is submitted and ending on the date on which the resident is successfully relocated.
(3) Sanctions
Any individual who is the administrator of a facility that fails to comply with the requirements of paragraph (1)—
(A) shall be subject to a civil monetary penalty of up to $100,000;
(B) may be subject to exclusion from participation in any Federal health care program (as defined in
(C) shall be subject to any other penalties that may be prescribed by law.
(4) Procedure
The provisions of
(Aug. 14, 1935, ch. 531, title XI, §1128I, as added and amended
Editorial Notes
Amendments
2010—Subsec. (f).
Subsec. (g).
Subsec. (h).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
National Independent Monitor Demonstration Project
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(c)
"(1) conduct periodic reviews and prepare root-cause quality and deficiency analyses of a chain to assess if facilities of the chain are in compliance with State and Federal laws and regulations applicable to the facilities;
"(2) conduct sustained oversight of the efforts of the chain, whether publicly or privately held, to achieve compliance by facilities of the chain with State and Federal laws and regulations applicable to the facilities;
"(3) analyze the management structure, distribution of expenditures, and nurse staffing levels of facilities of the chain in relation to resident census, staff turnover rates, and tenure;
"(4) report findings and recommendations with respect to such reviews, analyses, and oversight to the chain and facilities of the chain, to the Secretary, and to relevant States; and
"(5) publish the results of such reviews, analyses, and oversight.
"(d)
"(1)
"(A) outlining corrective actions the chain will take to implement the recommendations in such report; or
"(B) indicating that the chain will not implement such recommendations, and why it will not do so.
"(2)
"(e)
"(f)
"(g)
"(h)
"(1)
"(2)
"(3)
"(4)
"(5)
"(i)
"(1)
"(2)
"(A) as to whether the independent monitor program should be established on a permanent basis;
"(B) if the Secretary recommends that such program be so established, on appropriate procedures and mechanisms for such establishment; and
"(C) for such legislation and administrative action as the Secretary determines appropriate."
1 So in original. Probably should be "subsection".
2 So in original. No subsecs. (d) and (e) have been enacted.
§1320a–7k. Medicare and Medicaid program integrity provisions
(a) Data matching
(1) Integrated data repository
(A) Inclusion of certain data
(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:
(I) The programs under subchapters XVIII and XIX (including parts A, B, C, and D of subchapter XVIII).
(II) The program under subchapter XXI.
(III) Health-related programs administered by the Secretary of Veterans Affairs.
(IV) Health-related programs administered by the Secretary of Defense.
(V) The program of old-age, survivors, and disability insurance benefits established under subchapter II.
(VI) The Indian Health Service and the Contract Health Service program.
(ii) Priority for inclusion of certain data
Inclusion of the data described in subclause (I) of such clause 1 in the Integrated Data Repository shall be a priority. Data described in subclauses (II) through (VI) of such clause 1 shall be included in the Integrated Data Repository as appropriate.
(B) Data sharing and matching
(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 subchapters XVIII and XIX.
(ii) Individuals described
The following individuals are described in this clause:
(I) The Commissioner of Social Security.
(II) The Secretary of Veterans Affairs.
(III) The Secretary of Defense.
(IV) The Director of the Indian Health Service.
(iii) Definition of system of records
For purposes of this paragraph, the term "system of records" has the meaning given such term in
(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
(b) OIG authority to obtain information
(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 subchapters XVIII and XIX, obtain information from any individual (including a beneficiary provided all applicable privacy protections are followed) or entity that—
(A) is a provider of medical or other items or services, supplier, grant recipient, contractor, or subcontractor; or
(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
(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 subchapter 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 subchapter XVIII, a covered part D drug (as defined in
(c) Administrative remedy for knowing participation by beneficiary in health care fraud scheme
(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.
(2) Applicable individual
For purposes of paragraph (1), the term "applicable individual" means an individual—
(A) entitled to, or enrolled for, benefits under part A of subchapter XVIII or enrolled under part B of such subchapter;
(B) eligible for medical assistance under a State plan under subchapter XIX or under a waiver of such plan; or
(C) eligible for child health assistance under a child health plan under subchapter XXI.
(d) Reporting and returning of overpayments
(1) In general
If a person has received an overpayment, the person shall—
(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
(B) notify the Secretary, State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment.
(2) Deadline for reporting and returning overpayments
An overpayment must be reported and returned under paragraph (1) by the later of—
(A) the date which is 60 days after the date on which the overpayment was identified; or
(B) the date any corresponding cost report is due, if applicable.
(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
(4) Definitions
In this subsection:
(A) Knowing and knowingly
The terms "knowing" and "knowingly" have the meaning given those terms in
(B) Overpayment
The term "overpayment" means any funds that a person receives or retains under subchapter XVIII or XIX to which the person, after applicable reconciliation, is not entitled under such subchapter.
(C) Person
(i) In general
The term "person" means a provider of services, supplier, medicaid managed care organization (as defined in
(ii) Exclusion
Such term does not include a beneficiary.
(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 subchapters 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.
(Aug. 14, 1935, ch. 531, title XI, §1128J, as added
Editorial Notes
References in Text
The Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (a)(2), is
1 So in original. Probably should be "clause (i)".
§1320a–7l. Nationwide program for national and State background checks on direct patient access employees of long-term care facilities and providers
(a) In general
The Secretary of Health and Human Services (in this section referred to as the "Secretary"), shall establish a program to identify efficient, effective, and economical procedures for long term care facilities or providers to conduct background checks on prospective direct patient access employees on a nationwide basis (in this subsection, such program shall be referred to as the "nationwide program"). Except for the following modifications, the Secretary shall carry out the nationwide program under similar terms and conditions as the pilot program under section 307 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (
(1) Agreements
(A) Newly participating States
The Secretary shall enter into agreements with each State—
(i) that the Secretary has not entered into an agreement with under subsection (c)(1) of such section 307;
(ii) that agrees to conduct background checks under the nationwide program on a Statewide basis; and
(iii) that submits an application to the Secretary containing such information and at such time as the Secretary may specify.
(B) Certain previously participating States
The Secretary shall enter into agreements with each State—
(i) that the Secretary has entered into an agreement with under such subsection (c)(1), but only in the case where such agreement did not require the State to conduct background checks under the program established under subsection (a) of such section 307 on a Statewide basis;
(ii) that agrees to conduct background checks under the nationwide program on a Statewide basis; and
(iii) that submits an application to the Secretary containing such information and at such time as the Secretary may specify.
(2) Nonapplication of selection criteria
The selection criteria required under subsection (c)(3)(B) of such section 307 shall not apply.
(3) Required fingerprint check as part of criminal history background check
The procedures established under subsection (b)(1) of such section 307 shall—
(A) require that the long-term care facility or provider (or the designated agent of the long-term care facility or provider) obtain State and national criminal history background checks on the prospective employee through such means as the Secretary determines appropriate, efficient, and effective that utilize a search of State-based abuse and neglect registries and databases, including the abuse and neglect registries of another State in the case where a prospective employee previously resided in that State, State criminal history records, the records of any proceedings in the State that may contain disqualifying information about prospective employees (such as proceedings conducted by State professional licensing and disciplinary boards and State Medicaid Fraud Control Units), and Federal criminal history records, including a fingerprint check using the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation;
(B) require States to describe and test methods that reduce duplicative fingerprinting, including providing for the development of "rap back" capability by the State such that, if a direct patient access employee of a long-term care facility or provider is convicted of a crime following the initial criminal history background check conducted with respect to such employee, and the employee's fingerprints match the prints on file with the State law enforcement department, the department will immediately inform the State and the State will immediately inform the long-term care facility or provider which employs the direct patient access employee of such conviction; and
(C) require that criminal history background checks conducted under the nationwide program remain valid for a period of time specified by the Secretary.
(4) State requirements
An agreement entered into under paragraph (1) shall require that a participating State—
(A) be responsible for monitoring compliance with the requirements of the nationwide program;
(B) have procedures in place to—
(i) conduct screening and criminal history background checks under the nationwide program in accordance with the requirements of this section;
(ii) monitor compliance by long-term care facilities and providers with the procedures and requirements of the nationwide program;
(iii) as appropriate, provide for a provisional period of employment by a long-term care facility or provider of a direct patient access employee, not to exceed 60 days, pending completion of the required criminal history background check and, in the case where the employee has appealed the results of such background check, pending completion of the appeals process, during which the employee shall be subject to direct on-site supervision (in accordance with procedures established by the State to ensure that a long-term care facility or provider furnishes such direct on-site supervision);
(iv) provide an independent process by which a provisional employee or an employee may appeal or dispute the accuracy of the information obtained in a background check performed under the nationwide program, including the specification of criteria for appeals for direct patient access employees found to have disqualifying information which shall include consideration of the passage of time, extenuating circumstances, demonstration of rehabilitation, and relevancy of the particular disqualifying information with respect to the current employment of the individual;
(v) provide for the designation of a single State agency as responsible for—
(I) overseeing the coordination of any State and national criminal history background checks requested by a long-term care facility or provider (or the designated agent of the long-term care facility or provider) utilizing a search of State and Federal criminal history records, including a fingerprint check of such records;
(II) overseeing the design of appropriate privacy and security safeguards for use in the review of the results of any State or national criminal history background checks conducted regarding a prospective direct patient access employee to determine whether the employee has any conviction for a relevant crime;
(III) immediately reporting to the long-term care facility or provider that requested the criminal history background check the results of such review; and
(IV) in the case of an employee with a conviction for a relevant crime that is subject to reporting under section 1128E of the Social Security Act (
(vi) determine which individuals are direct patient access employees (as defined in paragraph (6)(B)) for purposes of the nationwide program;
(vii) as appropriate, specify offenses, including convictions for violent crimes, for purposes of the nationwide program; and
(viii) describe and test methods that reduce duplicative fingerprinting, including providing for the development of "rap back" capability such that, if a direct patient access employee of a long-term care facility or provider is convicted of a crime following the initial criminal history background check conducted with respect to such employee, and the employee's fingerprints match the prints on file with the State law enforcement department—
(I) the department will immediately inform the State agency designated under clause (v) and such agency will immediately inform the facility or provider which employs the direct patient access employee of such conviction; and
(II) the State will provide, or will require the facility to provide, to the employee a copy of the results of the criminal history background check conducted with respect to the employee at no charge in the case where the individual requests such a copy.
(5) Payments
(A) Newly participating States
(i) In general
As part of the application submitted by a State under paragraph (1)(A)(iii), the State shall guarantee, with respect to the costs to be incurred by the State in carrying out the nationwide program, that the State will make available (directly or through donations from public or private entities) a particular amount of non-Federal contributions, as a condition of receiving the Federal match under clause (ii).
(ii) Federal match
The payment amount to each State that the Secretary enters into an agreement with under paragraph (1)(A) shall be 3 times the amount that the State guarantees to make available under clause (i), except that in no case may the payment amount exceed $3,000,000.
(B) Previously participating States
(i) In general
As part of the application submitted by a State under paragraph (1)(B)(iii), the State shall guarantee, with respect to the costs to be incurred by the State in carrying out the nationwide program, that the State will make available (directly or through donations from public or private entities) a particular amount of non-Federal contributions, as a condition of receiving the Federal match under clause (ii).
(ii) Federal match
The payment amount to each State that the Secretary enters into an agreement with under paragraph (1)(B) shall be 3 times the amount that the State guarantees to make available under clause (i), except that in no case may the payment amount exceed $1,500,000.
(6) Definitions
Under the nationwide program:
(A) Conviction for a relevant crime
The term "conviction for a relevant crime" means any Federal or State criminal conviction for—
(i) any offense described in section 1128(a) of the Social Security Act (
(ii) such other types of offenses as a participating State may specify for purposes of conducting the program in such State.
(B) Disqualifying information
The term "disqualifying information" means a conviction for a relevant crime or a finding of patient or resident abuse.
(C) Finding of patient or resident abuse
The term "finding of patient or resident abuse" means any substantiated finding by a State agency under section 1819(g)(1)(C) or 1919(g)(1)(C) of the Social Security Act (
(i) an act of patient or resident abuse or neglect or a misappropriation of patient or resident property; or
(ii) such other types of acts as a participating State may specify for purposes of conducting the program in such State.
(D) Direct patient access employee
The term "direct patient access employee" means any individual who has access to a patient or resident of a long-term care facility or provider through employment or through a contract with such facility or provider and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider, as determined by the State for purposes of the nationwide program. Such term does not include a volunteer unless the volunteer has duties that are equivalent to the duties of a direct patient access employee and those duties involve (or may involve) one-on-one contact with a patient or resident of the long-term care facility or provider.
(E) Long-term care facility or provider
The term "long-term care facility or provider" means the following facilities or providers which receive payment for services under title XVIII or XIX of the Social Security Act [
(i) A skilled nursing facility (as defined in section 1819(a) of the Social Security Act (
(ii) A nursing facility (as defined in section 1919(a) of such Act (
(iii) A home health agency.
(iv) A provider of hospice care (as defined in section 1861(dd)(1) of such Act (
(v) A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act (
(vi) A provider of personal care services.
(vii) A provider of adult day care.
(viii) A residential care provider that arranges for, or directly provides, long-term care services, including an assisted living facility that provides a level of care established by the Secretary.
(ix) An intermediate care facility for the mentally retarded (as defined in section 1905(d) of such Act (
(x) Any other facility or provider of long-term care services under such titles as the participating State determines appropriate.
(7) Evaluation and report
(A) Evaluation
(i) In general
The Inspector General of the Department of Health and Human Services shall conduct an evaluation of the nationwide program.
(ii) Inclusion of specific topics
The evaluation conducted under clause (i) shall include the following:
(I) A review of the various procedures implemented by participating States for long-term care facilities or providers, including staffing agencies, to conduct background checks of direct patient access employees under the nationwide program and identification of the most appropriate, efficient, and effective procedures for conducting such background checks.
(II) An assessment of the costs of conducting such background checks (including start up and administrative costs).
(III) A determination of the extent to which conducting such background checks leads to any unintended consequences, including a reduction in the available workforce for long-term care facilities or providers.
(IV) An assessment of the impact of the nationwide program on reducing the number of incidents of neglect, abuse, and misappropriation of resident property to the extent practicable.
(V) An evaluation of other aspects of the nationwide program, as determined appropriate by the Secretary.
(B) Report
Not later than 180 days after the completion of the nationwide program, the Inspector General of the Department of Health and Human Services shall submit a report to Congress containing the results of the evaluation conducted under subparagraph (A).
(b) Funding
(1) Notification
The Secretary of Health and Human Services shall notify the Secretary of the Treasury of the amount necessary to carry out the nationwide program under this section for the period of fiscal years 2010 through 2012, except that in no case shall such amount exceed $160,000,000.
(2) Transfer of funds
(A) In general
Out of any funds in the Treasury not otherwise appropriated, the Secretary of the Treasury shall provide for the transfer to the Secretary of Health and Human Services of the amount specified as necessary to carry out the nationwide program under paragraph (1). Such amount shall remain available until expended.
(B) Reservation of funds for conduct of evaluation
The Secretary may reserve not more than $3,000,000 of the amount transferred under subparagraph (A) to provide for the conduct of the evaluation under subsection (a)(7)(A).
(
Editorial Notes
References in Text
Section 307 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, referred to in subsec. (a), is section 307 of
The Social Security Act, referred to in subsec. (a)(6)(E), is act Aug. 14, 1935, ch. 531,
Codification
Section was enacted as part of the Patient Protection and Affordable Care Act, and not as part of the Social Security Act which comprises this chapter.
Statutory Notes and Related Subsidiaries
Pilot Program
"(a)
"(b)
"(1)
"(2)
"(A)
"(i) give a prospective direct access patient employee notice that the long-term care facility or provider is required to perform background checks with respect to new employees;
"(ii) require, as a condition of employment, that the employee—
"(I) provide a written statement disclosing any disqualifying information;
"(II) provide a statement signed by the employee authorizing the facility to request national and State criminal history background checks;
"(III) provide the facility with a rolled set of the employee's fingerprints; and
"(IV) provide any other identification information the participating State may require;
"(iii) require the facility or provider to check any available registries that would be likely to contain disqualifying information about a prospective employee of a long-term care facility or provider; and
"(iv) permit the facility or provider to obtain State and national criminal history background checks on the prospective employee through a 10-fingerprint check that utilizes State criminal records and the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation.
"(B)
"(3)
"(A)
"(B)
"(i)
"(ii)
"(4)
"(A)
"(B)
"(5)
"(6)
"(c)
"(1)
"(2)
"(A) be responsible for monitoring compliance with the requirements of the pilot program;
"(B) have procedures by which a provisional employee or an employee may appeal or dispute the accuracy of the information obtained in a background check performed under the pilot program; and
"(C) agree to—
"(i) review the results of any State or national criminal history background checks conducted regarding a prospective direct patient access employee to determine whether the employee has any conviction for a relevant crime;
"(ii) immediately report to the entity that requested the criminal history background checks the results of such review; and
"(iii) in the case of an employee with a conviction for a relevant crime that is subject to reporting under section 1128E of the Social Security Act (
"(3)
"(A)
"(B)
"(i)
"(I) geographic diversity;
"(II) the inclusion of a variety of long-term care facilities or providers;
"(III) the evaluation of a variety of payment mechanisms for covering the costs of conducting the background checks required under the pilot program; and
"(IV) the evaluation of a variety of penalties (monetary and otherwise) used by participating States to enforce the requirements of the pilot program in such States.
"(ii)
"(I) At least one participating State should permit long-term care facilities or providers to provide for a provisional period of employment pending completion of a background check and at least one such State should not permit such a period of employment.
"(II) At least one participating State should establish procedures under which employment agencies (including temporary employment agencies) may contact the State directly to conduct background checks on prospective direct patient access employees.
"(III) At least one participating State should include patient abuse prevention training (including behavior training and interventions) for managers and employees of long-term care facilities and providers as part of the pilot program conducted in that State.
"(iii)
"(d)
"(1) make payments to participating States for the costs of conducting the pilot program in such States; and
"(2) reserve up to 4 percent of such amounts to conduct the evaluation required under subsection (e).
"(e)
"(1) review the various procedures implemented by participating States for long-term care facilities or providers to conduct background checks of direct patient access employees and identify the most efficient, effective, and economical procedures for conducting such background checks;
"(2) assess the costs of conducting such background checks (including start-up and administrative costs);
"(3) consider the benefits and problems associated with requiring employees or facilities or providers to pay the costs of conducting such background checks;
"(4) consider whether the costs of conducting such background checks should be allocated between the medicare and medicaid programs and if so, identify an equitable methodology for doing so;
"(5) determine the extent to which conducting such background checks leads to any unintended consequences, including a reduction in the available workforce for such facilities or providers;
"(6) review forms used by participating States in order to develop, in consultation with the Attorney General, a model form for such background checks;
"(7) determine the effectiveness of background checks conducted by employment agencies; and
"(8) recommend appropriate procedures and payment mechanisms for implementing a national criminal background check program for such facilities and providers.
"(f)
"(g)
"(1)
"(A) any offense described in section 1128(a) of the Social Security Act (
"(B) such other types of offenses as a participating State may specify for purposes of conducting the pilot program in such State.
"(2)
"(3)
"(A) an act of patient or resident abuse or neglect or a misappropriation of patient or resident property; or
"(B) such other types of acts as a participating State may specify for purposes of conducting the pilot program in such State.
"(4)
"(5)
"(A)
"(i) A skilled nursing facility (as defined in section 1819(a) of the Social Security Act) (
"(ii) A nursing facility (as defined in section 1919(a) in such Act) (
"(iii) A home health agency.
"(iv) A provider of hospice care (as defined in section 1861(dd)(1) of such Act) (
"(v) A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act) (
"(vi) A provider of personal care services.
"(vii) A residential care provider that arranges for, or directly provides, long-term care services.
"(viii) An intermediate care facility for the mentally retarded (as defined in section 1905(d) of such Act) [(]
"(B)
"(C)
"(i) any facility or entity that provides, or is a provider of, services described in subparagraph (A) that are exclusively provided to an individual pursuant to a self-directed arrangement that meets such requirements as the participating State may establish in accordance with guidance from the Secretary; or
"(ii) any such arrangement that is obtained by a patient or resident functioning as an employer.
"(6)
§1320a–7m. Use of predictive modeling and other analytics technologies to identify and prevent waste, fraud, and abuse in the Medicare fee-for-service program
(a) Use in the Medicare fee-for-service program
The Secretary shall use predictive modeling and other analytics technologies (in this section referred to as "predictive analytics technologies") to identify improper claims for reimbursement and to prevent the payment of such claims under the Medicare fee-for-service program.
(b) Predictive analytics technologies requirements
The predictive analytics technologies used by the Secretary shall—
(1) capture Medicare provider and Medicare beneficiary activities across the Medicare fee-for-service program to provide a comprehensive view across all providers, beneficiaries, and geographies within such program in order to—
(A) identify and analyze Medicare provider networks, provider billing patterns, and beneficiary utilization patterns; and
(B) identify and detect any such patterns and networks that represent a high risk of fraudulent activity;
(2) be integrated into the existing Medicare fee-for-service program claims flow with minimal effort and maximum efficiency;
(3) be able to—
(A) analyze large data sets for unusual or suspicious patterns or anomalies or contain other factors that are linked to the occurrence of waste, fraud, or abuse;
(B) undertake such analysis before payment is made; and
(C) prioritize such identified transactions for additional review before payment is made in terms of the likelihood of potential waste, fraud, and abuse to more efficiently utilize investigative resources;
(4) capture outcome information on adjudicated claims for reimbursement to allow for refinement and enhancement of the predictive analytics technologies on the basis of such outcome information, including post-payment information about the eventual status of a claim; and
(5) prevent the payment of claims for reimbursement that have been identified as potentially wasteful, fraudulent, or abusive until such time as the claims have been verified as valid.
(c) Implementation requirements
(1) Request for proposals
Not later than January 1, 2011, the Secretary shall issue a request for proposals to carry out this section during the first year of implementation. To the extent the Secretary determines appropriate—
(A) the initial request for proposals may include subsequent implementation years; and
(B) the Secretary may issue additional requests for proposals with respect to subsequent implementation years.
(2) First implementation year
The initial request for proposals issued under paragraph (1) shall require the contractors selected to commence using predictive analytics technologies on July 1, 2011, in the 10 States identified by the Secretary as having the highest risk of waste, fraud, or abuse in the Medicare fee-for-service program.
(3) Second implementation year
Based on the results of the report and recommendation required under subsection (e)(1)(B), the Secretary shall expand the use of predictive analytics technologies on October 1, 2012, to apply to an additional 10 States identified by the Secretary as having the highest risk of waste, fraud, or abuse in the Medicare fee-for-service program, after the States identified under paragraph (2).
(4) Third implementation year
Based on the results of the report and recommendation required under subsection (e)(2), the Secretary shall expand the use of predictive analytics technologies on January 1, 2014, to apply to the Medicare fee-for-service program in any State not identified under paragraph (2) or (3) and the commonwealths and territories.
(5) Fourth implementation year
Based on the results of the report and recommendation required under subsection (e)(3), the Secretary shall expand the use of predictive analytics technologies, beginning April 1, 2015, to apply to Medicaid and CHIP. To the extent the Secretary determines appropriate, such expansion may be made on a phased-in basis.
(6) Option for refinement and evaluation
If, with respect to the first, second, or third implementation year, the Inspector General of the Department of Health and Human Services certifies as part of the report required under subsection (e) for that year no or only nominal actual savings to the Medicare fee-for-service program, the Secretary may impose a moratorium, not to exceed 12 months, on the expansion of the use of predictive analytics technologies under this section for the succeeding year in order to refine the use of predictive analytics technologies to achieve more than nominal savings before further expansion. If a moratorium is imposed in accordance with this paragraph, the implementation dates applicable for the succeeding year or years shall be adjusted to reflect the length of the moratorium period.
(d) Contractor selection, qualifications, and data access requirements
(1) Selection
(A) In general
The Secretary shall select contractors to carry out this section using competitive procedures as provided for in the Federal Acquisition Regulation.
(B) Number of contractors
The Secretary shall select at least 2 contractors to carry out this section with respect to any year.
(2) Qualifications
(A) In general
The Secretary shall enter into a contract under this section with an entity only if the entity—
(i) has leadership and staff who—
(I) have the appropriate clinical knowledge of, and experience with, the payment rules and regulations under the Medicare fee-for-service program; and
(II) have direct management experience and proficiency utilizing predictive analytics technologies necessary to carry out the requirements under subsection (b); or
(ii) has a contract, or will enter into a contract, with another entity that has leadership and staff meeting the criteria described in clause (i).
(B) Conflict of interest
The Secretary may only enter into a contract under this section with an entity to the extent that the entity complies with such conflict of interest standards as are generally applicable to Federal acquisition and procurement.
(3) Data access
The Secretary shall provide entities with a contract under this section with appropriate access to data necessary for the entity to use predictive analytics technologies in accordance with the contract.
(e) Reporting requirements
(1) First implementation year report
Not later than 3 months after the completion of the first implementation year under this section, the Secretary shall submit to the appropriate committees of Congress and make available to the public a report that includes the following:
(A) A description of the implementation of the use of predictive analytics technologies during the year.
(B) A certification of the Inspector General of the Department of Health and Human Services that—
(i) specifies the actual and projected savings to the Medicare fee-for-service program as a result of the use of predictive analytics technologies, including estimates of the amounts of such savings with respect to both improper payments recovered and improper payments avoided;
(ii) the actual and projected savings to the Medicare fee-for-service program as a result of such use of predictive analytics technologies relative to the return on investment for the use of such technologies and in comparison to other strategies or technologies used to prevent and detect fraud, waste, and abuse in the Medicare fee-for-service program; and
(iii) includes recommendations regarding—
(I) whether the Secretary should continue to use predictive analytics technologies;
(II) whether the use of such technologies should be expanded in accordance with the requirements of subsection (c); and
(III) any modifications or refinements that should be made to increase the amount of actual or projected savings or mitigate any adverse impact on Medicare beneficiaries or providers.
(C) An analysis of the extent to which the use of predictive analytics technologies successfully prevented and detected waste, fraud, or abuse in the Medicare fee-for-service program.
(D) A review of whether the predictive analytics technologies affected access to, or the quality of, items and services furnished to Medicare beneficiaries.
(E) A review of what effect, if any, the use of predictive analytics technologies had on Medicare providers.
(F) Any other items determined appropriate by the Secretary.
(2) Second year implementation report
Not later than 3 months after the completion of the second implementation year under this section, the Secretary shall submit to the appropriate committees of Congress and make available to the public a report that includes, with respect to such year, the items required under paragraph (1) as well as any other additional items determined appropriate by the Secretary with respect to the report for such year.
(3) Third year implementation report
Not later than 3 months after the completion of the third implementation year under this section, the Secretary shall submit to the appropriate committees of Congress, and make available to the public, a report that includes 1 with respect to such year, the items required under paragraph (1),2 as well as any other additional items determined appropriate by the Secretary with respect to the report for such year, and the following:
(A) An analysis of the cost-effectiveness and feasibility of expanding the use of predictive analytics technologies to Medicaid and CHIP.
(B) An analysis of the effect, if any, the application of predictive analytics technologies to claims under Medicaid and CHIP would have on States and the commonwealths and territories.
(C) Recommendations regarding the extent to which technical assistance may be necessary to expand the application of predictive analytics technologies to claims under Medicaid and CHIP, and the type of any such assistance.
(f) Independent evaluation and report
(1) Evaluation
Upon completion of the first year in which predictive analytics technologies are used with respect to claims under Medicaid and CHIP, the Secretary shall, by grant, contract, or interagency agreement, conduct an independent evaluation of the use of predictive analytics technologies under the Medicare fee-for-service program and Medicaid and CHIP. The evaluation shall include an analysis with respect to each such program of the items required for the third year implementation report under subsection (e)(3).
(2) Report
Not later than 18 months after the evaluation required under paragraph (1) is initiated, the Secretary shall submit a report to Congress on the evaluation that shall include the results of the evaluation, the Secretary's response to such results and, to the extent the Secretary determines appropriate, recommendations for legislation or administrative actions.
(g) Waiver authority
The Secretary may waive such provisions of titles XI, XVIII, XIX, and XXI of the Social Security Act [
(h) Funding
(1) Appropriation
Out of any funds in the Treasury not otherwise appropriated, there is appropriated to the Secretary to carry out this section, $100,000,000 for the period beginning January 1, 2011, to remain available until expended.
(2) Reservations
(A) Independent evaluation
The Secretary shall reserve not more than 5 percent of the funds appropriated under paragraph (1) for purposes of conducting the independent evaluation required under subsection (f).
(B) Application to Medicaid and CHIP
The Secretary shall reserve such portion of the funds appropriated under paragraph (1) as the Secretary determines appropriate for purposes of providing assistance to States for administrative expenses in the event of the expansion of predictive analytics technologies to claims under Medicaid and CHIP.
(i) Definitions
In this section:
(1) Commonwealths and territories
The term "commonwealth and territories" includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States in which the Medicare fee-for-service program, Medicaid, or CHIP operates.
(2) CHIP
The term "CHIP" means the Children's Health Insurance Program established under title XXI of the Social Security Act (
(3) Medicaid
The term "Medicaid" means the program to provide grants to States for medical assistance programs established under title XIX of the Social Security Act (
(4) Medicare beneficiary
The term "Medicare beneficiary" means an individual enrolled in the Medicare fee-for-service program.
(5) Medicare fee-for-service program
The term "Medicare fee-for-service program" means the original medicare fee-for-service program under parts A and B of title XVIII of the Social Security Act (
(6) Medicare provider
The term "Medicare provider" means a provider of services (as defined in subsection (u) of section 1861 of the Social Security Act (
(7) Secretary
The term "Secretary" means the Secretary of Health and Human Services, acting through the Administrator of the Centers for Medicare & Medicaid Services.
(8) State
The term "State" means each of the 50 States and the District of Columbia.
(
Editorial Notes
References in Text
The Social Security Act, referred to in subsecs. (g) and (i)(2), (3), (5), is act Aug. 14, 1935, ch. 531,
Codification
Section was enacted as part of the Small Business Jobs Act of 2010, and not as part of the Social Security Act which comprises this chapter.
1 So in original. Probably should be followed by a comma.
2 So in original. The comma probably should not appear.
§1320a–7n. Disclosure of predictive modeling and other analytics technologies to identify and prevent waste, fraud, and abuse
(a) Reference to predictive modeling technologies requirements
For provisions relating to the use of predictive modeling and other analytics technologies to identify and prevent waste, fraud, and abuse with respect to the Medicare program under subchapter XVIII, the Medicaid program under subchapter XIX, and the Children's Health Insurance Program under subchapter XXI, see
(b) Limiting disclosure of predictive modeling technologies
In implementing such provisions under such section 1320a–7m with respect to covered algorithms (as defined in subsection (c)), the following shall apply:
(1) Nonapplication of FOIA
The covered algorithms used or developed for purposes of such section 1320a–7m (including by the Secretary or a State (or an entity operating under a contract with a State)) shall be exempt from disclosure under
(2) Limitation with respect to use and disclosure of information by State agencies
(A) In general
A State agency may not use or disclose covered algorithms used or developed for purposes of such section 1320a–7m except for purposes of administering the State plan (or a waiver of the plan) under the Medicaid program under subchapter XIX or the State child health plan (or a waiver of the plan) under the Children's Health Insurance Program under subchapter XXI, including by enabling an entity operating under a contract with a State to assist the State to identify or prevent waste, fraud, and abuse with respect to such programs.
(B) Information security
A State agency shall have in effect data security and control policies that the Secretary finds adequate to ensure the security of covered algorithms used or developed for purposes of such section 1320a–7m and to ensure that access to such information is restricted to authorized persons for purposes of authorized uses and disclosures described in subparagraph (A).
(C) Procedural requirements
State agencies to which information is disclosed pursuant to such section 1320a–7m shall adhere to uniform procedures established by the Secretary.
(c) Covered algorithm defined
In this section, the term "covered algorithm"—
(1) means a predictive modeling or other analytics technology, as used for purposes of
(2) includes the mathematical expressions utilized in the application of such technology and the means by which such technology is developed.
(Aug. 14, 1935, ch. 531, title XI, §1128K, as added
§1320a–8. Civil monetary penalties and assessments for subchapters II, VIII and XVI
(a) False statements or representations of material fact; proceedings to exclude; wrongful conversions by representative payees
(1) Any person (including an organization, agency, or other entity) who—
(A) makes, or causes to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to or the amount of monthly insurance benefits under subchapter II or benefits or payments under subchapter VIII or XVI, that the person knows or should know is false or misleading,
(B) makes such a statement or representation for such use with knowing disregard for the truth, or
(C) omits from a statement or representation for such use, or otherwise withholds disclosure of, a fact which the person knows or should know is material to the determination of any initial or continuing right to or the amount of monthly insurance benefits under subchapter II or benefits or payments under subchapter VIII or XVI, if the person knows, or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading,
shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or representation or each receipt of such benefits or payments while withholding disclosure of such fact, except that in the case of such a person who receives a fee or other income for services performed in connection with any such determination (including a claimant representative, translator, or current or former employee of the Social Security Administration) or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination, the amount of such penalty shall be not more than $7,500. Such person also shall be subject to an assessment, in lieu of damages sustained by the United States because of such statement or representation or because of such withholding of disclosure of a material fact, of not more than twice the amount of benefits or payments paid as a result of such a statement or representation or such a withholding of disclosure. In addition, the Commissioner of Social Security may make a determination in the same proceeding to recommend that the Secretary exclude, as provided in
(2) For purposes of this section, a material fact is one which the Commissioner of Social Security may consider in evaluating whether an applicant is entitled to benefits under subchapter II or subchapter VIII, or eligible for benefits or payments under subchapter XVI.
(3) Any person (including an organization, agency, or other entity) who, having received, while acting in the capacity of a representative payee pursuant to
(b) Initiation of proceedings; hearing; sanctions
(1) The Commissioner of Social Security may initiate a proceeding to determine whether to impose a civil money penalty or assessment, or whether to recommend exclusion under subsection (a) only as authorized by the Attorney General pursuant to procedures agreed upon by the Commissioner of Social Security and the Attorney General. The Commissioner of Social Security may not initiate an action under this section with respect to any violation described in subsection (a) later than 6 years after the date the violation was committed. The Commissioner of Social Security may initiate an action under this section by serving notice of the action in any manner authorized by Rule 4 of the Federal Rules of Civil Procedure.
(2) The Commissioner of Social Security shall not make a determination adverse to any person under this section until the person has been given written notice and an opportunity for the determination to be made on the record after a hearing at which the person is entitled to be represented by counsel, to present witnesses, and to cross-examine witnesses against the person.
(3) In a proceeding under this section which—
(A) is against a person who has been convicted (whether upon a verdict after trial or upon a plea of guilty or nolo contendere) of a Federal or State crime; and
(B) involves the same transaction as in the criminal action;
the person is estopped from denying the essential elements of the criminal offense.
(4) The official conducting a hearing under this section may sanction a person, including any party or attorney, for failing to comply with an order or procedure, for failing to defend an action, or for such other misconduct as would interfere with the speedy, orderly, or fair conduct of the hearing. Such sanction shall reasonably relate to the severity and nature of the failure or misconduct. Such sanction may include—
(A) in the case of refusal to provide or permit discovery, drawing negative factual inference or treating such refusal as an admission by deeming the matter, or certain facts, to be established;
(B) prohibiting a party from introducing certain evidence or otherwise supporting a particular claim or defense;
(C) striking pleadings, in whole or in part;
(D) staying the proceedings;
(E) dismissal of the action;
(F) entering a default judgment;
(G) ordering the party or attorney to pay attorneys' fees and other costs caused by the failure or misconduct; and
(H) refusing to consider any motion or other action which is not filed in a timely manner.
(c) Amount or scope of penalties, assessments, or exclusions
In determining pursuant to subsection (a) the amount or scope of any penalty or assessment, or whether to recommend an exclusion, the Commissioner of Social Security shall take into account—
(1) the nature of the statements, representations, or actions referred to in subsection (a) and the circumstances under which they occurred;
(2) the degree of culpability, history of prior offenses, and financial condition of the person committing the offense; and
(3) such other matters as justice may require.
(d) Judicial review
(1) Any person adversely affected by a determination of the Commissioner of Social Security under this section may obtain a review of such determination in the United States Court of Appeals for the circuit in which the person resides, or in which the statement or representation referred to in subsection (a) was made, by filing in such court (within 60 days following the date the person is notified of the Commissioner's determination) a written petition requesting that the determination be modified or set aside. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Commissioner of Social Security, and thereupon the Commissioner of Social Security shall file in the court the record in the proceeding as provided in
(2) The findings of the Commissioner of Social Security with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive in the review described in paragraph (1). If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commissioner of Social Security, the court may order such additional evidence to be taken before the Commissioner of Social Security and to be made a part of the record. The Commissioner of Social Security may modify such findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and the Commissioner of Social Security shall file with the court such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole shall be conclusive, and the Commissioner's recommendations, if any, for the modification or setting aside of the Commissioner's original order.
(3) Upon the filing of the record and the Commissioner's original or modified order with the court, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in
(e) Compromise of money penalties and assessments; recovery; use of funds recovered
(1) Civil money penalties and assessments imposed under this section may be compromised by the Commissioner of Social Security and may be recovered—
(A) in a civil action in the name of the United States brought in United States district court for the district where the violation occurred, or where the person resides, as determined by the Commissioner of Social Security;
(B) by means of reduction in tax refunds to which the person is entitled, based on notice to the Secretary of the Treasury as permitted under
(C)(i) by decrease of any payment of monthly insurance benefits under subchapter II, notwithstanding
(ii) by decrease of any payment under subchapter VIII to which the person is entitled, or
(iii) by decrease of any payment under subchapter XVI for which the person is eligible, notwithstanding
(D) by authorities provided under the Debt Collection Act of 1982, as amended, to the extent applicable to debts arising under this chapter;
(E) by deduction of the amount of such penalty or assessment, when finally determined, or the amount agreed upon in compromise, from any sum then or later owing by the United States to the person against whom the penalty or assessment has been assessed; or
(F) by any combination of the foregoing.
(2) Amounts recovered under this section shall be recovered by the Commissioner of Social Security and shall be disposed of as follows:
(A) In the case of amounts recovered arising out of a determination relating to subchapter II, the amounts shall be transferred to the Managing Trustee of the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund, as determined appropriate by the Commissioner of Social Security, and such amounts shall be deposited by the Managing Trustee into such Trust Fund.
(B) In the case of any other amounts recovered under this section, the amounts shall be deposited by the Commissioner of Social Security into the general fund of the Treasury as miscellaneous receipts.
(f) Finality of determination respecting penalty, assessment, or exclusion
A determination pursuant to subsection (a) by the Commissioner of Social Security to impose a penalty or assessment, or to recommend an exclusion shall be final upon the expiration of the 60-day period referred to in subsection (d). Matters that were raised or that could have been raised in a hearing before the Commissioner of Social Security or in an appeal pursuant to subsection (d) may not be raised as a defense to a civil action by the United States to collect a penalty or assessment imposed under this section.
(g) Notification of appropriate entities of finality of determination
Whenever the Commissioner's determination to impose a penalty or assessment under this section with respect to a medical provider or physician becomes final, the Commissioner shall notify the Secretary of the final determination and the reasons therefor, and the Secretary shall then notify the entities described in
(h) Injunction
Whenever the Commissioner of Social Security has reason to believe that any person has engaged, is engaging, or is about to engage in any activity which makes the person subject to a civil monetary penalty under this section, the Commissioner of Social Security may bring an action in an appropriate district court of the United States (or, if applicable, a United States court of any territory) to enjoin such activity, or to enjoin the person from concealing, removing, encumbering, or disposing of assets which may be required in order to pay a civil monetary penalty and assessment if any such penalty were to be imposed or to seek other appropriate relief.
(i) Delegation of authority
(1) The provisions of subsections (d) and (e) of
(2) The Commissioner of Social Security may delegate authority granted under this section to the Inspector General.
(j) "State agency" defined
For purposes of this section, the term "State agency" shall have the same meaning as in
(k) Liability of principal for acts of agents
A principal is liable for penalties and assessments under subsection (a), and for an exclusion under
(l) Protection of ongoing criminal investigations
As soon as the Inspector General, Social Security Administration, has reason to believe that fraud was involved in the application of an individual for monthly insurance benefits under subchapter II or for benefits under subchapter VIII or XVI, the Inspector General shall make available to the Commissioner of Social Security information identifying the individual, unless a United States attorney, or equivalent State prosecutor, with jurisdiction over potential or actual related criminal cases, certifies, in writing, that there is a substantial risk that making the information so available in a particular investigation or redetermining the eligibility of the individual for such benefits would jeopardize the criminal prosecution of any person who is a subject of the investigation from which the information is derived.
(Aug. 14, 1935, ch. 531, title XI, §1129, as added and amended
Editorial Notes
References in Text
Rule 4 of the Federal Rules of Civil Procedure, referred to in subsec. (b)(1), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Debt Collection Act of 1982, referred to in subsec. (e)(1)(D), is
Prior Provisions
A prior section 1320a–8, act Aug. 14, 1935, ch. 531, title XI, §1129, as added Dec. 5, 1980,
Amendments
2015—Subsec. (a)(1).
2004—Subsec. (a)(1).
"(A) monthly insurance benefits under subchapter II,
"(B) benefits or payments under subchapter VIII, or
"(C) benefits or payments under subchapter XVI,
that the person knows or should know is false or misleading or knows or should know omits a material fact or makes such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or representation. Such person also shall be subject to an assessment, in lieu of damages sustained by the United States because of such statement or representation, of not more than twice the amount of benefits or payments paid as a result of such a statement or representation. In addition, the Commissioner of Social Security may make a determination in the same proceeding to recommend that the Secretary exclude, as provided in
Subsec. (a)(3).
Subsec. (b)(3)(A).
Subsec. (c)(1).
Subsec. (e)(1)(A).
Subsec. (e)(2)(B).
1999—
Subsec. (a)(1)(B), (C).
Subsec. (a)(2).
Subsec. (e)(1)(C)(ii), (iii).
Subsec. (e)(2)(B).
Subsec. (l).
1994—Subsec. (a)(1).
Subsecs. (a)(2), (b)(1), (2), (c).
Subsec. (d).
Subsecs. (e), (f).
Subsec. (g).
Subsecs. (h), (i).
Subsec. (k).
Subsec. (l).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date of 1994 Amendment
Amendment by section 108(b)(10)(A) of
Effective Date
Section applicable to conduct occurring on or after Oct. 1, 1994, see section 206(b)(3) of
Study on Possible Measures to Improve Fraud Prevention and Administrative Processing
§1320a–8a. Administrative procedure for imposing penalties for false or misleading statements
(a) In general
Any person who—
(1) makes, or causes to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to or the amount of monthly insurance benefits under subchapter II or benefits or payments under subchapter XVI that the person knows or should know is false or misleading,
(2) makes such a statement or representation for such use with knowing disregard for the truth, or
(3) omits from a statement or representation for such use, or otherwise withholds disclosure of, a fact which the person knows or should know is material to the determination of any initial or continuing right to or the amount of monthly insurance benefits under subchapter II or benefits or payments under subchapter XVI, if the person knows, or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading,
shall be subject to, in addition to any other penalties that may be prescribed by law, a penalty described in subsection (b) to be imposed by the Commissioner of Social Security.
(b) Penalty
The penalty described in this subsection is—
(1) nonpayment of benefits under subchapter II that would otherwise be payable to the person; and
(2) ineligibility for cash benefits under subchapter XVI,
for each month that begins during the applicable period described in subsection (c).
(c) Duration of penalty
The duration of the applicable period, with respect to a determination by the Commissioner under subsection (a) that a person has engaged in conduct described in subsection (a), shall be—
(1) six consecutive months, in the case of the first such determination with respect to the person;
(2) twelve consecutive months, in the case of the second such determination with respect to the person; and
(3) twenty-four consecutive months, in the case of the third or subsequent such determination with respect to the person.
(d) Effect on other assistance
A person subject to a period of nonpayment of benefits under subchapter II or ineligibility for subchapter XVI benefits by reason of this section nevertheless shall be considered to be eligible for and receiving such benefits, to the extent that the person would be receiving or eligible for such benefits but for the imposition of the penalty, for purposes of—
(1) determination of the eligibility of the person for benefits under subchapters XVIII and XIX; and
(2) determination of the eligibility or amount of benefits payable under subchapter II or XVI to another person.
(e) Definition
In this section, the term "benefits under subchapter VIII or XVI" includes State supplementary payments made by the Commissioner pursuant to an agreement under
(f) Consultations
The Commissioner of Social Security shall consult with the Inspector General of the Social Security Administration regarding initiating actions under this section.
(Aug. 14, 1935, ch. 531, title XI, §1129A, as added
Editorial Notes
References in Text
Section 212(b) of
Amendments
2004—Subsec. (a).
"(1) monthly insurance benefits under subchapter II of this chapter; or
"(2) benefits or payments under subchapter XVI of this chapter,
that the person knows or should know is false or misleading or knows or should know omits a material fact or who makes such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a penalty described in subsection (b) to be imposed by the Commissioner of Social Security."
2000—Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Amendment by
Effective Date
Section applicable to statements and representations made on or after Dec. 14, 1999, see section 207(e) of
Regulations
§1320a–8b. Attempts to interfere with administration of this chapter
Whoever corruptly or by force or threats of force (including any threatening letter or communication) attempts to intimidate or impede any officer, employee, or contractor of the Social Security Administration (including any State employee of a disability determination service or any other individual designated by the Commissioner of Social Security) acting in an official capacity to carry out a duty under this chapter, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or attempts to obstruct or impede, the due administration of this chapter, shall be fined not more than $5,000, imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person shall be fined not more than $3,000, imprisoned not more than 1 year, or both. In this subsection, the term "threats of force" means threats of harm to the officer or employee of the United States or to a contractor of the Social Security Administration, or to a member of the family of such an officer or employee or contractor.
(Aug. 14, 1935, ch. 531, title XI, §1129B, as added
§1320a–9. Demonstration projects
(a) Authority to approve demonstration projects
(1) In general
The Secretary may authorize States to conduct demonstration projects pursuant to this section which the Secretary finds are likely to promote the objectives of part B or E of subchapter IV.
(2) Limitation
During fiscal years 2012 through 2014, the Secretary may authorize demonstration projects described in paragraph (1), with not more than 10 demonstration projects to be authorized in each fiscal year.
(3) Conditions for State eligibility
For purposes of a new demonstration project under this section that is initially approved in any of fiscal years 2012 through 2014, a State shall be authorized to conduct such demonstration project only if the State satisfies the following conditions:
(A) Identify 1 or more goals
(i) In general
The State shall demonstrate that the demonstration project is designed to accomplish 1 or more of the following goals:
(I) Increase permanency for all infants, children, and youth by reducing the time in foster placements when possible and promoting a successful transition to adulthood for older youth.
(II) Increase positive outcomes for infants, children, youth, and families in their homes and communities, including tribal communities, and improve the safety and well-being of infants, children, and youth.
(III) Prevent child abuse and neglect and the re-entry of infants, children, and youth into foster care.
(ii) Long-term therapeutic family treatment centers; addressing domestic violence
With respect to a demonstration project that is designed to accomplish 1 or more of the goals described in clause (i), the State may elect to establish a program—
(I) to permit foster care maintenance payments to be made under part E of subchapter IV to a long-term therapeutic family treatment center (as described in paragraph (8)(B)) on behalf of a child residing in the center; or
(II) to identify and address domestic violence that endangers children and results in the placement of children in foster care.
(B) Demonstrate readiness
The State shall demonstrate through a narrative description the State's capacity to effectively use the authority to conduct a demonstration project under this section by identifying changes the State has made or plans to make in policies, procedures, or other elements of the State's child welfare program that will enable the State to successfully achieve the goal or goals of the project.
(C) Demonstrate implemented or planned child welfare program improvement policies
(i) In general
The State shall demonstrate that the State has implemented, or plans to implement within 3 years of the date on which the State submits its application to conduct the demonstration project or 2 years after the date on which the Secretary approves such demonstration project (whichever is later), at least 2 of the child welfare program improvement policies described in paragraph (7).
(ii) Previous implementation
For purposes of the requirement described in clause (i), at least 1 of the child welfare program improvement policies to be implemented by the State shall be a policy that the State has not previously implemented as of the date on which the State submits an application to conduct the demonstration project.
(iii) Implementation review
The Secretary may terminate the authority of a State to conduct a demonstration project under this section if, after the 3-year period following approval of the demonstration project, the State has not made significant progress in implementing the child welfare program improvement policies proposed by the State under clause (i).
(4) Limitation on eligibility
The Secretary may not authorize a State to conduct a demonstration project under this section if the State fails to provide health insurance coverage to any child with special needs (as determined under
(5) Requirement to consider effect of project on terms and conditions of certain court orders
In considering an application to conduct a demonstration project under this section that has been submitted by a State in which there is in effect a court order determining that the State's child welfare program has failed to comply with the provisions of part B or E of subchapter IV, or with the Constitution of the United States, the Secretary shall take into consideration the effect of approving the proposed project on the terms and conditions of the court order related to the failure to comply and the ability of the State to implement a corrective action plan approved under
(6) Inapplicability of random assignment for control groups as a factor for approval of demonstration projects
For purposes of evaluating an application to conduct a demonstration project under this section, the Secretary shall not take into consideration whether such project requires random assignment of children and families to groups served under the project and to control groups.
(7) Child welfare program improvement policies
For purposes of paragraph (3)(C), the child welfare program improvement policies described in this paragraph are the following:
(A) The establishment of a bill of rights for infants, children, and youth in foster care that is widely shared and clearly outlines protections for infants, children, and youth, such as assuring frequent visits with parents, siblings, and caseworkers, access to attorneys, and participation in age-appropriate extracurricular activities, and procedures for ensuring the protections are provided.
(B) The development and implementation of a plan for meeting the health and mental health needs of infants, children, and youth in foster care that includes ensuring that the provision of health and mental health care is child-specific, comprehensive, appropriate, and consistent (through means such as ensuring the infant, child, or youth has a medical home, regular wellness medical visits, and addressing the issue of trauma, when appropriate).
(C) The inclusion in the State plan under
(D) The election under the State plan under
(E) The development and implementation of a plan that ensures congregate care is used appropriately and reduces the placement of children and youth in such care.
(F) Of those infants, children, and youth in out-of-home placements, substantially increasing the number of cases of siblings who are in the same foster care, kinship guardianship, or adoptive placement, above the number of such cases in fiscal year 2008.
(G) The development and implementation of a plan to improve the recruitment and retention of high quality foster family homes trained to help assist infants, children, and youth swiftly secure permanent families. Supports for foster families under such a plan may include increasing maintenance payments to more adequately meet the needs of infants, children, and youth in foster care and expanding training, respite care, and other support services for foster parents.
(H) The establishment of procedures designed to assist youth as they prepare for their transition out of foster care, such as arranging for participation in age-appropriate extra-curricular activities, providing appropriate access to cell phones, computers, and opportunities to obtain a driver's license, providing notification of all sibling placements if siblings are in care and sibling location if siblings are out of care, and providing counseling and financial support for post-secondary education.
(I) The inclusion in the State plan under
(i) ensuring that youth in foster care who have attained age 16 are engaged in discussions, including during the development of the transition plans required under paragraphs (1)(D) and (5)(H) of
(ii) providing appropriate guidance and services to youth whom 1 affirm an intent to reconnect with biological family members on how to successfully and safely manage such reconnections; and
(iii) making, when appropriate, efforts to include biological family members in such reconnection efforts.
(J) The establishment of one or more of the following programs designed to prevent infants, children, and youth from entering foster care or to provide permanency for infants, children, and youth in foster care:
(i) An intensive family finding program.
(ii) A kinship navigator program.
(iii) A family counseling program, such as a family group decision-making program, and which may include in-home peer support for families.
(iv) A comprehensive family-based substance abuse treatment program.
(v) A program under which special efforts are made to identify and address domestic violence that endangers infants, children, and youth and puts them at risk of entering foster care.
(vi) A mentoring program.
(8) Definitions
In this subsection—
(A) the term "youth" means, with respect to a State, an individual who has attained age 12 but has not attained the age at which an individual is no longer considered to be a child under the State plans under parts B and E of subchapter IV, and
(B) the term "long-term therapeutic family treatment center" means a State licensed or certified program that enables parents and their children to live together in a safe environment for a period of not less than 6 months and provides, on-site or by referral, substance abuse treatment services, children's early intervention services, family counseling, legal services, medical care, mental health services, nursery and preschool, parenting skills training, pediatric care, prenatal care, sexual abuse therapy, relapse prevention, transportation, and job or vocational training or classes leading to a secondary school diploma or a certificate of general equivalence.
(b) Waiver authority
The Secretary may waive compliance with any requirement of part B or E of subchapter IV which (if applied) would prevent a State from carrying out a demonstration project under this section or prevent the State from effectively achieving the purpose of such a project, except that the Secretary may not waive—
(1) any provision of
(2) any provision of such part E, to the extent that the waiver would impair the entitlement of any qualified child or family to benefits under a State plan approved under such part E.
(c) Treatment as program expenditures
For purposes of parts B and E of subchapter IV, the Secretary shall consider the expenditures of any State to conduct a demonstration project under this section to be expenditures under subpart 1 or 2 of such part B, or under such part E, as the State may elect.
(d) Duration of demonstration
(1) In general
Subject to paragraph (2), a demonstration project under this section may be conducted for not more than 5 years, unless in the judgment of the Secretary, the demonstration project should be allowed to continue.
(2) Termination of authority
In no event shall a demonstration project under this section be conducted after September 30, 2019.
(e) Application
Any State seeking to conduct a demonstration project under this section shall submit to the Secretary an application, in such form as the Secretary may require, which includes—
(1) a description of the proposed project, the geographic area in which the proposed project would be conducted, the children or families who would be served by the proposed project, and the services which would be provided by the proposed project;
(2) a statement of the period during which the proposed project would be conducted;
(3) a discussion of the benefits that are expected from the proposed project (compared to a continuation of activities under the approved plan or plans of the State);
(4) an estimate of the costs or savings of the proposed project;
(5) a statement of program requirements for which waivers would be needed to permit the proposed project to be conducted;
(6) a description of the proposed evaluation design;
(7) an accounting of any additional Federal, State, and local investments made, as well as any private investments made in coordination with the State, during the 2 fiscal years preceding the application to provide the services described in paragraph (1), and an assurance that the State will provide an accounting of that same spending for each year of an approved demonstration project; and
(8) such additional information as the Secretary may require.
(f) Evaluations
Each State authorized to conduct a demonstration project under this section shall obtain an evaluation by an independent contractor of the effectiveness of the project, using an evaluation design approved by the Secretary which provides for—
(1) comparison of methods of service delivery under the project, and such methods under a State plan or plans, with respect to efficiency, economy, and any other appropriate measures of program management;
(2) comparison of outcomes for children and families (and groups of children and families) under the project, and such outcomes under a State plan or plans, for purposes of assessing the effectiveness of the project in achieving program goals; and
(3) any other information that the Secretary may require.
(g) Reports
(1) State reports; public availability
Each State authorized to conduct a demonstration project under this section shall—
(A) submit periodic reports to the Secretary on the specific programs, activities, and strategies used to improve outcomes for infants, children, youth, and families and the results achieved for infants, children, and youth during the conduct of the demonstration project, including with respect to those infants, children, and youth who are prevented from entering foster care, infants, children, and youth in foster care, and infants, children, and youth who move from foster care to permanent families; and
(B) post a copy of each such report on the website for the State child welfare program concurrent with the submission of the report to the Secretary.
(2) Reports to Congress
The Secretary shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate—
(A) periodic reports based on the State reports submitted under paragraph (1); and
(B) a report based on the results of the State evaluations required under subsection (f) that includes an analysis of the results of such evaluations and such recommendations for administrative or legislative changes as the Secretary determines appropriate.
(h) Cost neutrality
The Secretary may not authorize a State to conduct a demonstration project under this section unless the Secretary determines that the total amount of Federal funds that will be expended under (or by reason of) the project over its approved term (or such portion thereof or other period as the Secretary may find appropriate) will not exceed the amount of such funds that would be expended by the State under the State plans approved under parts B and E of subchapter IV if the project were not conducted.
(i) Indian tribes operating IV–E programs considered States
An Indian tribe, tribal organization, or tribal consortium that has elected to operate a program under part E of subchapter IV in accordance with
(Aug. 14, 1935, ch. 531, title XI, §1130, as added
Editorial Notes
Prior Provisions
A prior section 1130 of act Aug. 14, 1935, was classified to
Amendments
2011—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(5).
Subsec. (a)(6) to (8).
Subsec. (d).
Subsec. (e)(1).
Subsec. (e)(7), (8).
Subsecs. (f) to (h).
Subsec. (i).
2006—Subsec. (b)(1).
2003—Subsec. (a)(2).
1997—Subsec. (a).
Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2006 Amendment
Amendment by
Effective Date of 2003 Amendment
Amendment by
Effective Date of 1997 Amendment
Amendment by
Construction of 1997 Amendment
1 So in original. Probably should be "who".
§1320a–10. Effect of failure to carry out State plan
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability: Provided, however, That this section is not intended to alter the holding in Suter v. Artist M. that
(Aug. 14, 1935, ch. 531, title XI, §1130A, as added
Statutory Notes and Related Subsidiaries
Effective Date
§1320b. Repealed. Pub. L. 93–647, §3(e)(1), Jan. 4, 1975, 88 Stat. 2349
Section, act Aug. 14, 1935, ch. 531, title XI, §1130, as added Oct. 20, 1972,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective with respect to payments under
Social Services Regulations Postponed
"(a) Subject to subsection (b), no regulation and no modification of any regulation, promulgated by the Secretary of Health, Education, and Welfare [now Health and Human Services] (hereinafter referred to as the 'Secretary') after January 1, 1973, shall be effective for any period which begins prior to October 1, 1975, if (and insofar as) such regulation or modification of a regulation pertains (directly or indirectly) to the provisions of law contained in section 3(a)(4)(A), 402(a)(19)(G), 403(a)(3)(A), 603(a)(1)(A), 1003(a)(3)(A), 1403(a)(3)(A), or 1603(a)(4)(A) of the Social Security Act [
"(b)(1) The provisions of subsection (a) shall not be applicable to any regulation relating to 'scope of programs', if such regulation is identical (except as provided in the succeeding sentence) to the provisions of section 221.0 of the regulations (relating to social services) proposed by the Secretary and published in the Federal Register on May 1, 1973. There shall be deleted from the first sentence of subsection (b) of such section 221.0 the phrase 'meets all the applicable requirements of this part and'.
"(2) The provisions of subsection (a) shall not be applicable to any regulation relating to 'limitations on total amount of Federal funds payable to States for services', if such regulation is identical (except as provided in the succeeding sentence) to the provisions of section 221.55 of the regulations so proposed and published on May 1, 1973. There shall be deleted from subsection (d)(1) of such section 221.55 the phrase '(as defined under day care services for children)'; and, in lieu of the sentence contained in subsection (d)(5) of such section 221.55, there shall be inserted the following: 'Services provided to a child who is under foster care in a foster family home (as defined in section 408 of the Social Security Act [
"(3) The provisions of subsection (a) shall not be applicable to any regulation relating to 'rates and amounts of Federal financial participation for Puerto Rico, the Virgin Islands, and Guam', if such regulation is identical to the provisions of section 221.56 of the regulations so proposed and published on May 1, 1973.
"(4) The provisions of subsection (a) shall not be construed to preclude the Secretary from making any modification in any regulation (described in subsection (a)) if such modification is technically necessary to take account of the enactment of section 301 or 302 of the Social Security Amendments of 1972 [enacting subchapters XVI and VI of this chapter].
"(c) Notwithstanding the provisions of
Similar provisions were contained in the following prior act:
Modification of Social Services Regulations
Adjustment of Allotment to State for Fiscal Year Ending June 30, 1973
§1320b–1. Notification of Social Security claimant with respect to deferred vested benefits
(a) Whenever—
(1) the Commissioner of Social Security makes a finding of fact and a decision as to—
(A) the entitlement of any individual to monthly benefits under
(B) the entitlement of any individual to a lump-sum death payment payable under
(2) the Secretary makes a finding of fact and a decision as to the entitlement under
(3) the Commissioner of Social Security is requested to do so—
(A) by any individual with respect to whom the Commissioner of Social Security holds information obtained under section 6057 of the Internal Revenue Code of 1986, or
(B) in the case of the death of the individual referred to in subparagraph (A), by the individual who would be entitled to payment under
the Commissioner of Social Security shall transmit to the individual referred to in paragraph (1) or (2) or the individual making the request under paragraph (3) any information, as reported by the employer, regarding any deferred vested benefit transmitted to the Commissioner of Social Security pursuant to such section 6057 with respect to the individual referred to in paragraph (1), (2), or (3)(A) or the person on whose wages and self-employment income entitlement (or claim of entitlement) is based.
(b)(1) For purposes of
(2) There are hereby authorized to be appropriated to the Federal Old-Age and Survivors Insurance Trust Fund for each fiscal year (commencing with the fiscal year ending June 30, 1974) such sums as the Commissioner of Social Security deems necessary on account of additional administrative expenses resulting from the enactment of the provisions of subsection (a).
(Aug. 14, 1935, ch. 531, title XI, §1131, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsec. (a)(3)(A), is classified generally to Title 26, Internal Revenue Code.
Amendments
1994—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (b)(2).
1986—Subsec. (a)(2)(A).
1984—Subsec. (a).
Subsec. (a)(2)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date
Section effective Jan. 1, 1978, see section 1034 of
§1320b–2. Period within which certain claims must be filed
(a) Claims
Notwithstanding any other provision of this chapter (but subject to subsection (b)), any claim by a State for payment with respect to an expenditure made during any calendar quarter by the State—
(1) in carrying out a State plan approved under subchapter I, IV, X, XIV, XVI, XIX, or XX of this chapter, or
(2) under any other provision of this chapter which provides (on an entitlement basis) for Federal financial participation in expenditures made under State plans or programs,
shall be filed (in such form and manner as the Secretary shall by regulations prescribe) within the two-year period which begins on the first day of the calendar quarter immediately following such calendar quarter; and payment shall not be made under this chapter on account of any such expenditure if claim therefor is not made within such two-year period; except that this subsection shall not be applied so as to deny payment with respect to any expenditure involving court-ordered retroactive payments or audit exceptions, or adjustments to prior year costs.
(b) Waiver
The Secretary shall waive the requirement imposed under subsection (a) with respect to the filing of any claim if he determines (in accordance with regulations) that there was good cause for the failure by the State to file such claim within the period prescribed under subsection (a). Any such waiver shall be only for such additional period of time as may be necessary to provide the State with a reasonable opportunity to file such claim. A failure to file a claim within such time period which is attributable to neglect or administrative inadequacies shall be deemed not to be for good cause.
(Aug. 14, 1935, ch. 531, title XI, §1132, as added
Editorial Notes
Amendments
1981—Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment, Savings, and Transitional Provisions
For effective date, savings, and transitional provisions relating to amendment by
Effective Date
"(b)(1) The amendment made by subsection (a) [enacting this section] shall be effective only in the case of claims filed on account of expenditures made in calendar quarters commencing on or after October 1, 1979.
"(2) In the case of claims filed prior to the date of enactment of this Act [June 17, 1980] on account of expenditures described in section 1132 of the Social Security Act [
"(3) In the case of such expenditures made in calendar quarters commencing prior to October 1, 1979, for which no claim has been filed on or before the date of enactment of this Act, payment shall not be made under this Act on account of any such expenditure unless claim therefor is filed (in such form and manner as the Secretary shall by regulation prescribe) prior to January 1, 1981.
"(4) The provisions of this subsection shall not be applied so as to deny payment with respect to any expenditure involving adjustments to prior year costs or court-ordered retroactive payments or audit exceptions. The Secretary may waive the requirements of paragraph (3) in the same manner as under section 1132(b) of the Social Security Act [
"(c) Notwithstanding any other provision of law, there shall be no time limit for the filing or payment of such claims except as provided in this section, unless such other provision of law, in imposing such a time limitation, specifically exempts such filing or payment from the provisions of this section."
§1320b–3. Applicants or recipients under public assistance programs not to be required to make election respecting certain veterans' benefits
(a) Supplemental Security Income program
Notwithstanding any other provision of law (but subject to subsection (b)), no individual who is an applicant for or recipient of aid or assistance under a State plan approved under subchapter I, X, XIV, or XVI, or of benefits under the Supplemental Security Income program established by subchapter XVI shall—
(1) be required, as a condition of eligibility for (or of continuing to receive) such aid, assistance, or benefits, to make an election under section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978 with respect to pension paid by the Secretary of Veterans Affairs, or
(2) by reason of failure or refusal to make such an election, be denied (or suffer a reduction in the amount of) such aid, assistance, or benefits.
(b) Period of effectiveness
The provisions of subsection (a) shall be applicable only with respect to an individual, who is an applicant for or recipient of aid, assistance, or benefits described in subsection (a), during a period with respect to which there is in effect—
(1) in case such individual is an applicant for or recipient of aid or assistance under a State plan referred to in subsection (a), in the State having such plan, or
(2) in case such individual is an applicant for or recipient of benefits under the Supplemental Security Income program established by subchapter XVI, in the State in which the individual applies for or receives such benefits,
a State plan for medical assistance, approved under subchapter XIX, under which medical assistance is available to such individual only for periods for which such individual is a recipient of aid, assistance, or benefits described in subsection (a).
(Aug. 14, 1935, ch. 531, title XI, §1133, as added
Editorial Notes
References in Text
Section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978, referred to in subsec. (a)(1), is section 306 of
Amendments
1996—Subsec. (a).
1991—Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
Effective Date
Continuing Medicaid Eligibility for Certain Recipients of Veterans' Administration Pensions
"(A) The Administrator shall provide to each individual to whom section 1133 of the Social Security Act (as added by subsection (a)(1) of this section) [
"(B) Notwithstanding any other provision of law—
"(i) any individual to whom section 1133 of the Social Security Act (as added by subsection (a)(1) of this section) [
"(ii) whenever any such individual files such a disaffirmation with the Administrator, the amount of pension payable to such individual shall be adjusted, beginning with the first calendar month which commences after the receipt by the Administrator of such disaffirmation, to the amount that such pension would have been if such an election by such individual had not been made,
"(iii) any individual who has filed a disaffirmation, pursuant to this subparagraph, of an election made by such individual under such section 306 may again make an election thereunder, but such subsequent election may not be disaffirmed under this subsection, and
"(iv) no indebtedness to the United States, as a result of the disaffirmation by an individual, pursuant to this subparagraph, of an election made by such individual under such section 306 shall be considered to arise from the payment of pension pursuant to such an election.
"(C) The Administrator shall promptly advise the Secretary of Health, Education, and Welfare [now Health and Human Services], and provide identification of the individuals involved and other pertinent information with respect to (i) disaffirmations of elections made by individuals pursuant to subparagraph (B), (ii) individuals who, by failing to disaffirm within the 90-day period prescribed in subparagraph (B), are deemed to have reaffirmed elections previously made, and (iii) individuals who, after having disaffirmed an election under subparagraph (B), subsequently again make an election under section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978 [
§1320b–4. Nonprofit hospital or critical access hospital philanthropy
For purposes of determining, under subchapters XVIII and XIX of this chapter, the reasonable costs of services provided by nonprofit hospitals or critical access hospitals, the following items shall not be deducted from the operating costs of such hospitals or critical access hospitals:
(1) A grant, gift, or endowment, or income therefrom, which is to or for such a hospital and which has not been designated by the donor for paying any specific operating costs.
(2) A grant or similar payment which is to such a hospital, which was made by a governmental entity, and which is not available under the terms of the grant or payment for use as operating funds.
(3) Those types of donor designated grants and gifts (including grants and similar payments which are made by a governmental entity), and income therefrom, which the Secretary determines, in the best interests of needed health care, should be encouraged.
(4) The proceeds from the sale or mortgage of any real estate or other capital asset of such a hospital, which real estate or asset the hospital acquired through gift or grant, if such proceeds are not available for use as operating funds under the terms of the gift or grant.
Paragraph (4) shall not apply to the recovery of the appropriate share of depreciation when gains or losses are realized from the disposal of depreciable assets.
(Aug. 14, 1935, ch. 531, title XI, §1134, as added
Editorial Notes
Amendments
1997—
1989—
1982—Par. (4).
1981—
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1981 Amendment, Savings, and Transitional Provisions
For effective date, savings, and transitional provisions relating to amendment by
Effective Date
§1320b–5. Authority to waive requirements during national emergencies
(a) Purpose
The purpose of this section is to enable the Secretary to ensure to the maximum extent feasible, in any emergency area and during an emergency period (as defined in subsection (g)(1))—
(1) that sufficient health care items and services are available to meet the needs of individuals in such area enrolled in the programs under subchapters XVIII, XIX, and XXI; and
(2) that health care providers (as defined in subsection (g)(2)) that furnish such items and services in good faith, but that are unable to comply with one or more requirements described in subsection (b), may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse.
(b) Secretarial authority
To the extent necessary to accomplish the purpose specified in subsection (a), the Secretary is authorized, subject to the provisions of this section, to temporarily waive or modify the application of, with respect to health care items and services furnished by a health care provider (or classes of health care providers) in any emergency area (or portion of such an area) during any portion of an emergency period, the requirements of subchapters XVIII, XIX, or XXI, or any regulation thereunder (and the requirements of this subchapter other than this section, and regulations thereunder, insofar as they relate to such subchapters), pertaining to—
(1)(A) conditions of participation or other certification requirements for an individual health care provider or types of providers,
(B) program participation and similar requirements for an individual health care provider or types of providers, and
(C) pre-approval requirements;
(2) requirements that physicians and other health care professionals be licensed in the State in which they provide such services, if they have equivalent licensing in another State and are not affirmatively excluded from practice in that State or in any State a part of which is included in the emergency area;
(3) actions under
(A) a transfer of an individual who has not been stabilized in violation of subsection (c) of such section if the transfer is necessitated by the circumstances of the declared emergency in the emergency area during the emergency period; or
(B) the direction or relocation of an individual to receive medical screening in an alternative location—
(i) pursuant to an appropriate State emergency preparedness plan; or
(ii) in the case of a public health emergency described in subsection (g)(1)(B) that involves a pandemic infectious disease, pursuant to a State pandemic preparedness plan or a plan referred to in clause (i), whichever is applicable in the State;
(4) sanctions under
(5) deadlines and timetables for performance of required activities, except that such deadlines and timetables may only be modified, not waived;
(6) limitations on payments under
(7) sanctions and penalties that arise from noncompliance with the following requirements (as promulgated under the authority of section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (
(A) section 164.510 of title 45, Code of Federal Regulations, relating to—
(i) requirements to obtain a patient's agreement to speak with family members or friends; and
(ii) the requirement to honor a request to opt out of the facility directory;
(B) section 164.520 of such title, relating to the requirement to distribute a notice; or
(C) section 164.522 of such title, relating to—
(i) the patient's right to request privacy restrictions; and
(ii) the patient's right to request confidential communications;
(8) in the case of a telehealth service (as defined in paragraph (4)(F) of
(9) any requirement under
Insofar as the Secretary exercises authority under paragraph (6) with respect to individuals enrolled in a Medicare+Choice plan, to the extent possible given the circumstances, the Secretary shall reconcile payments made on behalf of such enrollees to ensure that the enrollees do not pay more than would be required had they received services from providers within the network of the plan and may reconcile payments to the organization offering the plan to ensure that such organization pays for services for which payment is included in the capitation payment it receives under part C of subchapter XVIII. A waiver or modification provided for under paragraph (3) or (7) shall only be in effect if such actions are taken in a manner that does not discriminate among individuals on the basis of their source of payment or of their ability to pay, and, except in the case of a waiver or modification to which the fifth sentence of this subsection applies, shall be limited to a 72-hour period beginning upon implementation of a hospital disaster protocol. A waiver or modification under such paragraph (7) shall be withdrawn after such period and the provider shall comply with the requirements under such paragraph for any patient still under the care of the provider. If a public health emergency described in subsection (g)(1)(B) involves a pandemic infectious disease (such as pandemic influenza), the duration of a waiver or modification under paragraph (3) shall be determined in accordance with subsection (e) as such subsection applies to public health emergencies. Ground ambulance services for which payment is made pursuant to paragraph (9) shall be paid at the base rate that would have been paid under the fee schedule established under 2 1395m(l) of this title (excluding any mileage payment) if the individual had been so transported and, with respect to ambulance services furnished by a critical access hospital or an entity described in paragraph (8) of such section, at the amount that otherwise would be paid under such paragraph.
(c) Authority for retroactive waiver
A waiver or modification of requirements pursuant to this section may, at the Secretary's discretion, be made retroactive to the beginning of the emergency period or any subsequent date in such period specified by the Secretary.
(d) Certification to Congress
The Secretary shall provide a certification and advance written notice to the Congress at least two days before exercising the authority under this section with respect to an emergency area. Such a certification and notice shall include—
(1) a description of—
(A) the specific provisions that will be waived or modified;
(B) the health care providers to whom the waiver or modification will apply;
(C) the geographic area in which the waiver or modification will apply; and
(D) the period of time for which the waiver or modification will be in effect; and
(2) a certification that the waiver or modification is necessary to carry out the purpose specified in subsection (a).
(e) Duration of waiver
(1) In general
A waiver or modification of requirements pursuant to this section terminates upon—
(A) the termination of the applicable declaration of emergency or disaster described in subsection (g)(1)(A);
(B) the termination of the applicable declaration of public health emergency described in subsection (g)(1)(B); or
(C) subject to paragraph (2), the termination of a period of 60 days from the date the waiver or modification is first published (or, if applicable, the date of extension of the waiver or modification under paragraph (2)).
(2) Extension of 60-day periods
The Secretary may, by notice, provide for an extension of a 60-day period described in paragraph (1)(C) (or an additional period provided under this paragraph) for additional period or periods (not to exceed, except as subsequently provided under this paragraph, 60 days each), but any such extension shall not affect or prevent the termination of a waiver or modification under subparagraph (A) or (B) of paragraph (1).
(f) Report to Congress
Within one year after the end of the emergency period in an emergency area in which the Secretary exercised the authority provided under this section, the Secretary shall report to the Congress regarding the approaches used to accomplish the purposes described in subsection (a), including an evaluation of such approaches and recommendations for improved approaches should the need for such emergency authority arise in the future.
(g) Definitions
For purposes of this section:
(1) Emergency area; emergency period
(A) In general
Subject to subparagraph (B), an "emergency area" is a geographical area in which, and an "emergency period" is the period during which, there exists—
(i) an emergency or disaster declared by the President pursuant to the National Emergencies Act [
(ii) a public health emergency declared by the Secretary pursuant to
(B) Exception
For purposes of paragraphs (8) and (9) of subsection (b), an "emergency area" is a geographical area in which, and an "emergency period" is the period during which, there exists—
(i) the public health emergency declared by the Secretary pursuant to
(ii) any renewal of such declaration pursuant to such
(2) Health care provider
The term "health care provider" means any entity that furnishes health care items or services, and includes a hospital or other provider of services, a physician or other health care practitioner or professional, a health care facility, or a supplier of health care items or services.
(Aug. 14, 1935, ch. 531, title XI, §1135, as added
Editorial Notes
References in Text
Section 264(c) of the Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (b)(7), is section 264(c) of
The National Emergencies Act, referred to in subsec. (g)(1)(A)(i), is
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in subsec. (g)(1)(A)(i), is
Prior Provisions
A prior section 1320b–5, act Aug. 14, 1935, ch. 531, title XI, §1135, as added
Amendments
2021—Subsec. (b).
Subsec. (b)(9).
Subsec. (g)(1)(B).
2020—Subsec. (b)(8).
"(A) the requirements of paragraph (4)(C) of such section, except that a facility fee under paragraph (2)(B)(i) of such section may only be paid to an originating site that is a site described in any of subclauses (I) through (IX) of paragraph (4)(C)(ii) of such section; and
"(B) the restriction on use of a telephone described in the second sentence of section 410.78(a)(3) of title 42, Code of Federal Regulations (or a successor regulation), but only if such telephone has audio and video capabilities that are used for two-way, real-time interactive communication."
Subsec. (g)(1).
"(A) an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and
"(B) a public health emergency declared by the Secretary pursuant to
Subsec. (g)(3).
Subsec. (g)(3)(A).
2006—Subsec. (b).
Subsec. (b)(3)(B).
2004—Subsec. (b).
Subsec. (b)(3).
Subsec. (b)(7).
Statutory Notes and Related Subsidiaries
Change of Name
References to Medicare+Choice deemed to refer to Medicare Advantage or MA, subject to an appropriate transition provided by the Secretary of Health and Human Services in the use of those terms, see section 201 of
Effective Date of 2006 Amendment
Effective Date
Coverage of Testing for COVID–19
"(a)
"(1) An in vitro diagnostic test defined in section 809.3 of title 21, Code of Federal Regulations (or successor regulations) for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19, and the administration of such a test, that—
"(A) is approved, cleared, or authorized under section 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act (
"(B) the developer has requested, or intends to request, emergency use authorization under section 564 of the Federal Food, Drug, and Cosmetic Act (
"(C) is developed in and authorized by a State that has notified the Secretary of Health and Human Services of its intention to review tests intended to diagnose COVID–19; or
"(D) other test that the Secretary determines appropriate in guidance.
"(2) Items and services furnished to an individual during health care provider office visits (which term in this paragraph includes in-person visits and telehealth visits), urgent care center visits, and emergency room visits that result in an order for or administration of an in vitro diagnostic product described in paragraph (1), but only to the extent such items and services relate to the furnishing or administration of such product or to the evaluation of such individual for purposes of determining the need of such individual for such product.
"(b)
"(c)
"(d)
Implementation of 2020 Amendment
1 So in original. A second closing parenthesis probably should precede the dash.
2 So in original. The word "section" probably should appear.
§1320b–6. Exclusion of representatives and health care providers convicted of violations from participation in social security programs
(a) In general
The Commissioner of Social Security shall exclude from participation in the social security programs any representative or health care provider—
(1) who is convicted of a violation of
(2) who is convicted of any violation under title 18 relating to an initial application for or continuing entitlement to, or amount of, benefits under subchapter II of this chapter, or an initial application for or continuing eligibility for, or amount of, benefits under subchapter XVI of this chapter; or
(3) who the Commissioner determines has committed an offense described in
(b) Notice, effective date, and period of exclusion
(1) An exclusion under this section shall be effective at such time, for such period, and upon such reasonable notice to the public and to the individual excluded as may be specified in regulations consistent with paragraph (2).
(2) Such an exclusion shall be effective with respect to services furnished to any individual on or after the effective date of the exclusion. Nothing in this section may be construed to preclude, in determining disability under subchapter II or subchapter XVI, consideration of any medical evidence derived from services provided by a health care provider before the effective date of the exclusion of the health care provider under this section.
(3)(A) The Commissioner shall specify, in the notice of exclusion under paragraph (1), the period of the exclusion.
(B) Subject to subparagraph (C), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be 5 years, except that the Commissioner may waive the exclusion in the case of an individual who is the sole source of essential services in a community. The Commissioner's decision whether to waive the exclusion shall not be reviewable.
(C) In the case of an exclusion of an individual under subsection (a) based on a conviction or a determination described in subsection (a)(3) occurring on or after December 14, 1999, if the individual has (before, on, or after December 14, 1999) been convicted, or if such a determination has been made with respect to the individual—
(i) on one previous occasion of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be not less than 10 years; or
(ii) on two or more previous occasions of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be permanent.
(c) Notice to State agencies
The Commissioner shall promptly notify each appropriate State agency employed for the purpose of making disability determinations under
(1) of the fact and circumstances of each exclusion effected against an individual under this section; and
(2) of the period (described in subsection (b)(3)) for which the State agency is directed to exclude the individual from participation in the activities of the State agency in the course of its employment.
(d) Notice to State licensing agencies
The Commissioner shall—
(1) promptly notify the appropriate State or local agency or authority having responsibility for the licensing or certification of an individual excluded from participation under this section of the fact and circumstances of the exclusion;
(2) request that appropriate investigations be made and sanctions invoked in accordance with applicable State law and policy; and
(3) request that the State or local agency or authority keep the Commissioner and the Inspector General of the Social Security Administration fully and currently informed with respect to any actions taken in response to the request.
(e) Notice, hearing, and judicial review
(1) Any individual who is excluded (or directed to be excluded) from participation under this section is entitled to reasonable notice and opportunity for a hearing thereon by the Commissioner to the same extent as is provided in
(2) The provisions of
(f) Application for termination of exclusion
(1) An individual excluded from participation under this section may apply to the Commissioner, in the manner specified by the Commissioner in regulations and at the end of the minimum period of exclusion provided under subsection (b)(3) and at such other times as the Commissioner may provide, for termination of the exclusion effected under this section.
(2) The Commissioner may terminate the exclusion if the Commissioner determines, on the basis of the conduct of the applicant which occurred after the date of the notice of exclusion or which was unknown to the Commissioner at the time of the exclusion, that—
(A) there is no basis under subsection (a) for a continuation of the exclusion; and
(B) there are reasonable assurances that the types of actions which formed the basis for the original exclusion have not recurred and will not recur.
(3) The Commissioner shall promptly notify each State agency employed for the purpose of making disability determinations under
(g) Availability of records of excluded representatives and health care providers
Nothing in this section shall be construed to have the effect of limiting access by any applicant or beneficiary under subchapter II or XVI, any State agency acting under
(h) Reporting requirement
Any representative or health care provider participating in, or seeking to participate in, a social security program shall inform the Commissioner, in such form and manner as the Commissioner shall prescribe by regulation, whether such representative or health care provider has been convicted of a violation described in subsection (a).
(i) Delegation of authority
The Commissioner may delegate authority granted by this section to the Inspector General.
(j) Definitions
For purposes of this section:
(1) Exclude
The term "exclude" from participation means—
(A) in connection with a representative, to prohibit from engaging in representation of an applicant for, or recipient of, benefits, as a representative payee under section 405(j) or
(B) in connection with a health care provider, to prohibit from providing items or services to an applicant for, or recipient of, benefits for the purpose of assisting such applicant or recipient in demonstrating disability.
(2) Social security program
The term "social security programs" means the program providing for monthly insurance benefits under subchapter II, and the program providing for monthly supplemental security income benefits to individuals under subchapter XVI (including State supplementary payments made by the Commissioner pursuant to an agreement under
(3) Convicted
An individual is considered to have been "convicted" of a violation—
(A) when a judgment of conviction has been entered against the individual by a Federal, State, or local court, except if the judgment of conviction has been set aside or expunged;
(B) when there has been a finding of guilt against the individual by a Federal, State, or local court;
(C) when a plea of guilty or nolo contendere by the individual has been accepted by a Federal, State, or local court; or
(D) when the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.
(Aug. 14, 1935, ch. 531, title XI, §1136, as added
Editorial Notes
References in Text
Section 212(b) of
Prior Provisions
A prior section 1320b–6, act Aug. 14, 1935, ch. 531, title XI, §1136, as added
Statutory Notes and Related Subsidiaries
Effective Date
§1320b–7. Income and eligibility verification system
(a) Requirements of State eligibility systems
In order to meet the requirements of this section, a State must have in effect an income and eligibility verification system which meets the requirements of subsection (d) and under which—
(1) the State shall require, as a condition of eligibility for benefits under any program listed in subsection (b), that each applicant for or recipient of benefits under that program furnish to the State his social security account number (or numbers, if he has more than one such number), and the State shall utilize such account numbers in the administration of that program so as to enable the association of the records pertaining to the applicant or recipient with his account number;
(2) wage information from agencies administering State unemployment compensation laws available pursuant to section 3304(a)(16) of the Internal Revenue Code of 1986, wage information reported pursuant to paragraph (3) of this subsection, and wage, income, and other information from the Social Security Administration and the Internal Revenue Service available pursuant to section 6103(l)(7) of such Code, shall be requested and utilized to the extent that such information may be useful in verifying eligibility for, and the amount of, benefits available under any program listed in subsection (b), as determined by the Secretary of Health and Human Services (or, in the case of the unemployment compensation program, by the Secretary of Labor, or, in the case of the supplemental nutrition assistance program, by the Secretary of Agriculture);
(3) employers (as defined in
(4) the State agencies administering the programs listed in subsection (b) adhere to standardized formats and procedures established by the Secretary of Health and Human Services (in consultation with the Secretary of Agriculture) under which—
(A) the agencies will exchange with each other information in their possession which may be of use in establishing or verifying eligibility or benefit amounts under any other such program;
(B) such information shall be made available to assist in the child support program under part D of subchapter IV of this chapter, and to assist the Secretary of Health and Human Services in establishing or verifying eligibility or benefit amounts under subchapters II and XVI of this chapter, but subject to the safeguards and restrictions established by the Secretary of the Treasury with respect to information released pursuant to section 6103(l) of the Internal Revenue Code of 1986; and
(C) the use of such information shall be targeted to those uses which are most likely to be productive in identifying and preventing ineligibility and incorrect payments, and no State shall be required to use such information to verify the eligibility of all recipients;
(5) adequate safeguards are in effect so as to assure that—
(A) the information exchanged by the State agencies is made available only to the extent necessary to assist in the valid administrative needs of the program receiving such information, and the information released pursuant to section 6103(l) of the Internal Revenue Code of 1986 is only exchanged with agencies authorized to receive such information under such section 6103(l); and
(B) the information is adequately protected against unauthorized disclosure for other purposes, as provided in regulations established by the Secretary of Health and Human Services, or, in the case of the unemployment compensation program, the Secretary of Labor, or, in the case of the supplemental nutrition assistance program, the Secretary of Agriculture, or 1 in the case of information released pursuant to section 6103(l) of the Internal Revenue Code of 1986, the Secretary of the Treasury;
(6) all applicants for and recipients of benefits under any such program shall be notified at the time of application, and periodically thereafter, that information available through the system will be requested and utilized; and
(7) accounting systems are utilized which assure that programs providing data receive appropriate reimbursement from the programs utilizing the data for the costs incurred in providing the data.
(b) Applicable programs
The programs which must participate in the income and eligibility verification system are—
(1) any State program funded under part A of subchapter IV of this chapter;
(2) the medicaid program under subchapter XIX of this chapter;
(3) the unemployment compensation program under section 3304 of the Internal Revenue Code of 1986;
(4) the supplemental nutrition assistance program established under the Food and Nutrition Act of 2008 (
(5) any State program under a plan approved under subchapter I, X, XIV, or XVI of this chapter.
(c) Protection of applicants from improper use of information
(1) In order to protect applicants for and recipients of benefits under the programs identified in subsection (b), or under the supplemental security income program under subchapter XVI, from the improper use of information obtained from the Secretary of the Treasury under section 6103(l)(7)(B) of the Internal Revenue Code of 1986, no Federal, State, or local agency receiving such information may terminate, deny, suspend, or reduce any benefits of an individual until such agency has taken appropriate steps to independently verify information relating to—
(A) the amount of the asset or income involved,
(B) whether such individual actually has (or had) access to such asset or income for his own use, and
(C) the period or periods when the individual actually had such asset or income.
(2) Such individual shall be informed by the agency of the findings made by the agency on the basis of such verified information, and shall be given an opportunity to contest such findings, in the same manner as applies to other information and findings relating to eligibility factors under the program.
(d) Citizenship or immigration status requirements; documentation; verification by Immigration and Naturalization Service; denial of benefits; hearing
The requirements of this subsection, with respect to an income and eligibility verification system of a State, are as follows:
(1)(A) The State shall require, as a condition of an individual's eligibility for benefits under a program listed in subsection (b), a declaration in writing, under penalty of perjury—
(i) by the individual,
(ii) in the case in which eligibility for program benefits is determined on a family or household basis, by any adult member of such individual's family or household (as applicable), or
(iii) in the case of an individual born into a family or household receiving benefits under such program, by any adult member of such family or household no later than the next redetermination of eligibility of such family or household following the birth of such individual,
stating whether the individual is a citizen or national of the United States, and, if that individual is not a citizen or national of the United States, that the individual is in a satisfactory immigration status.
(B) In this subsection, in the case of the program described in subsection (b)(4)—
(i) any reference to the State shall be considered a reference to the State agency, and
(ii) any reference to an individual's eligibility for benefits under the program shall be considered a reference to the individual's eligibility to participate in the program as a member of a household, and
(iii) the term "satisfactory immigration status" means an immigration status which does not make the individual ineligible for benefits under the applicable program.
(2) If such an individual is not a citizen or national of the United States, there must be presented either—
(A) alien registration documentation or other proof of immigration registration from the Immigration and Naturalization Service that contains the individual's alien admission number or alien file number (or numbers if the individual has more than one number), or
(B) such other documents as the State determines constitutes reasonable evidence indicating a satisfactory immigration status.
(3) If the documentation described in paragraph (2)(A) is presented, the State shall utilize the individual's alien file or alien admission number to verify with the Immigration and Naturalization Service the individual's immigration status through an automated or other system (designated by the Service for use with States) that—
(A) utilizes the individual's name, file number, admission number, or other means permitting efficient verification, and
(B) protects the individual's privacy to the maximum degree possible.
(4) In the case of such an individual who is not a citizen or national of the United States, if, at the time of application for benefits, the statement described in paragraph (1) is submitted but the documentation required under paragraph (2) is not presented or if the documentation required under paragraph (2)(A) is presented but such documentation is not verified under paragraph (3)—
(A) the State—
(i) shall provide a reasonable opportunity to submit to the State evidence indicating a satisfactory immigration status, and
(ii) may not delay, deny, reduce, or terminate the individual's eligibility for benefits under the program on the basis of the individual's immigration status until such a reasonable opportunity has been provided; and
(B) if there are submitted documents which the State determines constitutes reasonable evidence indicating such status—
(i) the State shall transmit to the Immigration and Naturalization Service either photostatic or other similar copies of such documents, or information from such documents, as specified by the Immigration and Naturalization Service, for official verification,
(ii) pending such verification, the State may not delay, deny, reduce, or terminate the individual's eligibility for benefits under the program on the basis of the individual's immigration status, and
(iii) the State shall not be liable for the consequences of any action, delay, or failure of the Service to conduct such verification.
(5) If the State determines, after complying with the requirements of paragraph (4), that such an individual is not in a satisfactory immigration status under the applicable program—
(A) the State shall deny or terminate the individual's eligibility for benefits under the program, and
(B) the applicable fair hearing process shall be made available with respect to the individual.
(e) Erroneous State citizenship or immigration status determinations; penalties not required
Each Federal agency responsible for administration of a program described in subsection (b) shall not take any compliance, disallowance, penalty, or other regulatory action against a State with respect to any error in the State's determination to make an individual eligible for benefits based on citizenship or immigration status—
(1) if the State has provided such eligibility based on a verification of satisfactory immigration status by the Immigration and Naturalization Service,
(2) because the State, under subsection (d)(4)(A)(ii), was required to provide a reasonable opportunity to submit documentation,
(3) because the State, under subsection (d)(4)(B)(ii), was required to wait for the response of the Immigration and Naturalization Service to the State's request for official verification of the immigration status of the individual, or
(4) because of a fair hearing process described in subsection (d)(5)(B).
(f) Medical assistance to aliens for treatment of emergency conditions
Subsections (a)(1) and (d) shall not apply with respect to aliens seeking medical assistance for the treatment of an emergency medical condition under
(Aug. 14, 1935, ch. 531, title XI, §1137, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsecs. (a)(2), (3), (4)(B), (5), (b)(3), and (c)(1), is classified generally to Title 26, Internal Revenue Code.
The Food and Nutrition Act of 2008, referred to in subsec. (b)(4), is
Codification
Amendments
2014—Subsec. (a)(5)(B).
Subsec. (b)(4).
2008—Subsec. (a)(2), (5)(B).
Subsec. (b)(4).
1999—Subsec. (a)(3).
1996—Subsec. (a)(3).
Subsec. (b)(1).
Subsec. (d)(1)(B).
Subsec. (d)(4)(B)(i).
1994—Subsec. (d)(1)(A).
1988—Subsec. (f).
1986—Subsec. (a).
Subsec. (a)(2), (4)(B).
Subsec. (a)(4)(C).
Subsec. (a)(5).
Subsec. (b).
Subsecs. (b)(3), (c)(1).
Subsecs. (d), (e).
Statutory Notes and Related Subsidiaries
Change of Name
References to the food stamp program established under the Food and Nutrition Act of 2008 [see Effective Date of 1986 Amendment note and Effective Date note below] considered to refer to the supplemental nutrition assistance program established under that Act, see section 4002(c) of
Effective Date of 2008 Amendment
Amendment of this section and repeal of
Amendment by section 4002(b)(1)(A), (B), (2)(V) of
Effective Date of 1999 Amendments
Amendment by section 401(p) of
Effective Date of 1996 Amendment
Amendment by section 108(g)(8) of
For effective date of amendment by section 313(c) of
Effective Date of 1988 Amendment
Effective Date of 1986 Amendment; Use of Verification System
"(3)
"(4)
"(A)
"(i) the application of the amendments made by subsection (a) to the program is cost-effective and otherwise appropriate, and
"(ii) there should be a waiver of the application of such amendments under subparagraph (B).
The amendments made by subsection (a) shall not apply with respect to a covered program described in subclause (II), (V), (VI), or (VII) of subparagraph (D)(i) until after the date of receipt of such report with respect to the program.
"(B)
"(i) the appropriate Secretary or the administering entity has in effect an alternative system of immigration status verification which—
"(I) is as effective and timely as the system otherwise required under the amendments made by subsection (a) with respect to the program, and
"(II) provides for at least the hearing and appeals rights for beneficiaries that would be provided under the amendments made by subsection (a), or
"(ii) the costs of administration of the system otherwise required under such amendments exceed the estimated savings,
such Secretary may waive the application of such amendments to the covered program to the extent (by State or other geographic area or otherwise) that such determinations apply.
"(C)
"(i) the number of aliens claiming benefits under the covered program in relation to the total number of claimants seeking benefits under the program,
"(ii) any savings in benefit expenditures reasonably expected to result from implementation of the verification program, and
"(iii) the labor and nonlabor costs of administration of the verification system,
the degree to which the Immigration and Naturalization Service is capable of providing timely and accurate information to the administering entity in order to permit a reliable determination of immigration status, and such other factors as such Secretary deems relevant.
"(D)
"(i) The term 'covered program' means each of the following programs:
"(I) The aid to families with dependent children program under part A of title IV of the Social Security Act [
"(II) The medicaid program under title XIX of the Social Security Act [
"(III) Any State program under a plan approved under title I, X, XIV, or XVI of the Social Security Act [
"(IV) The unemployment compensation program under section 3304 of the Internal Revenue Code of 1954 [now 1986;
"(V) The food stamp program under the Food Stamp Act of 1977 [now the Food and Nutrition Act of 2008,
"(VI) The programs of financial assistance for housing subject to section 214 of the Housing and Community Development Act of 1980 [
"(VII) The program of grants, loans, and work assistance under title IV of the Higher Education Act of 1965 [
"(ii) The term 'appropriate Secretary' means, with respect to the covered program described in—
"(I) subclauses (I) through (III) of clause (i), the Secretary of Health and Human Services;
"(II) clause (i)(IV), the Secretary of Labor;
"(III) clause (i)(V), the Secretary of Agriculture;
"(IV) clause (i)(VI), the Secretary of Housing and Urban Development; and
"(V) clause (i)(VII), the Secretary of Education.
"(iii) The term 'administering entity' means, with respect to the covered program described in—
"(I) subclause (I), (II), (III), (IV), or (V) of clause (i), the State agency responsible for the administration of the program in a State;
"(II) clause (i)(VI), the Secretary of Housing and Urban Development, a public housing agency, or another entity that determines the eligibility of an individual for financial assistance; and
"(III) clause (i)(VII), an institution of higher education involved."
Effective Date
"(1) The amendments made by subsections (j) and (k) [amending
"(2) Except as otherwise specifically provided, the amendments made by subsections (a) through (i) [enacting this section, amending
Construction of 1999 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Immigration and Naturalization Service To Establish Verification System by October 1, 1987
General Accounting Office Reports
1 So in original. Probably should be followed by a comma.
§1320b–8. Hospital protocols for organ procurement and standards for organ procurement agencies
(a)(1) The Secretary shall provide that a hospital or critical access hospital meeting the requirements of subchapter XVIII or XIX may participate in the program established under such subchapter only if—
(A) the hospital or critical access hospital establishes written protocols for the identification of potential organ donors that—
(i) assure that families of potential organ donors are made aware of the option of organ or tissue donation and their option to decline,
(ii) encourage discretion and sensitivity with respect to the circumstances, views, and beliefs of such families, and
(iii) require that such hospital's designated organ procurement agency (as defined in paragraph (3)(B)) is notified of potential organ donors;
(B) in the case of a hospital in which organ transplants are performed, the hospital is a member of, and abides by the rules and requirements of, the Organ Procurement and Transplantation Network established pursuant to
(C) the hospital or critical access hospital has an agreement (as defined in paragraph (3)(A)) only with such hospital's designated organ procurement agency.
(2)(A) The Secretary shall grant a waiver of the requirements under subparagraphs (A)(iii) and (C) of paragraph (1) to a hospital or critical access hospital desiring to enter into an agreement with an organ procurement agency other than such hospital's designated organ procurement agency if the Secretary determines that—
(i) the waiver is expected to increase organ donation; and
(ii) the waiver will assure equitable treatment of patients referred for transplants within the service area served by such hospital's designated organ procurement agency and within the service area served by the organ procurement agency with which the hospital seeks to enter into an agreement under the waiver.
(B) In making a determination under subparagraph (A), the Secretary may consider factors that would include, but not be limited to—
(i) cost effectiveness;
(ii) improvements in quality;
(iii) whether there has been any change in a hospital's designated organ procurement agency due to a change made on or after December 28, 1992, in the definitions for metropolitan statistical areas (as established by the Office of Management and Budget); and
(iv) the length and continuity of a hospital's relationship with an organ procurement agency other than the hospital's designated organ procurement agency;
except that nothing in this subparagraph shall be construed to permit the Secretary to grant a waiver that does not meet the requirements of subparagraph (A).
(C) Any hospital or critical access hospital seeking a waiver under subparagraph (A) shall submit an application to the Secretary containing such information as the Secretary determines appropriate.
(D) The Secretary shall—
(i) publish a public notice of any waiver application received from a hospital or critical access hospital under this paragraph within 30 days of receiving such application; and
(ii) prior to making a final determination on such application under subparagraph (A), offer interested parties the opportunity to submit written comments to the Secretary during the 60-day period beginning on the date such notice is published.
(3) For purposes of this subsection—
(A) the term "agreement" means an agreement described in
(B) the term "designated organ procurement agency" means, with respect to a hospital or critical access hospital, the organ procurement agency designated pursuant to subsection (b) for the service area in which such hospital is located; and
(C) the term "organ" means a human kidney, liver, heart, lung, pancreas, and any other human organ or tissue specified by the Secretary for purposes of this subsection.
(b)(1) The Secretary shall provide that payment may be made under subchapter XVIII or XIX with respect to organ procurement costs attributable to payments made to an organ procurement agency only if the agency—
(A)(i) is a qualified organ procurement organization (as described in
(B) meets the requirements that are applicable under such subchapter for organ procurement agencies;
(C) meets performance-related standards prescribed by the Secretary;
(D) is a member of, and abides by the rules and requirements of, the Network;
(E) allocates organs, within its service area and nationally, in accordance with medical criteria and the policies of the Network; and
(F) is designated by the Secretary as an organ procurement organization payments to which may be treated as organ procurement costs for purposes of reimbursement under such subchapter.
(2) The Secretary may not designate more than one organ procurement organization for each service area (described in section 273(b)(1)(E) 1 of this title) under paragraph (1)(F).
(Aug. 14, 1935, ch. 531, title XI, §1138, as added
Editorial Notes
References in Text
Amendments
1997—Subsec. (a).
Subsec. (b)(1)(A)(ii).
1994—Subsec. (a)(1)(A)(iii).
Subsec. (a)(1)(C).
Subsec. (a)(2).
Subsec. (a)(3).
1989—Subsec. (a)(1).
1988—Subsec. (a)(1)(B).
1987—Subsec. (a)(1)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by section 4201(c)(1) of
Effective Date of 1994 Amendment
Effective Date of 1988 Amendment
Except as specifically provided in section 411 of
Effective Date
"(1) Section 1138(a) of the Social Security Act [
"(2) Section 1138(b) of such Act [
[
Existing Agreements With Organ Procurement Agencies
1 See References in Text note below.
§1320b–9. Improved access to, and delivery of, health care for Indians under subchapters XIX and XXI
(a) Agreements with States for Medicaid and CHIP outreach on or near reservations to increase the enrollment of Indians in those programs
(1) In general
In order to improve the access of Indians residing on or near a reservation to obtain benefits under the Medicaid and State children's health insurance programs established under subchapters XIX and XXI, the Secretary shall encourage the State to take steps to provide for enrollment on or near the reservation. Such steps may include outreach efforts such as the outstationing of eligibility workers, entering into agreements with the Indian Health Service, Indian Tribes, Tribal Organizations, and Urban Indian Organizations to provide outreach, education regarding eligibility and benefits, enrollment, and translation services when such services are appropriate.
(2) Construction
Nothing in paragraph (1) shall be construed as affecting arrangements entered into between States and the Indian Health Service, Indian Tribes, Tribal Organizations, or Urban Indian Organizations for such Service, Tribes, or Organizations to conduct administrative activities under such subchapters.
(b) Requirement to facilitate cooperation
The Secretary, acting through the Centers for Medicare & Medicaid Services, shall take such steps as are necessary to facilitate cooperation with, and agreements between, States and the Indian Health Service, Indian Tribes, Tribal Organizations, or Urban Indian Organizations with respect to the provision of health care items and services to Indians under the programs established under subchapter XIX or XXI.
(c) Definition of Indian; Indian Tribe; Indian Health Program; Tribal Organization; Urban Indian Organization
For purposes of this section, subchapter XIX, and subchapter XXI, the terms "Indian", "Indian Tribe", "Indian Health Program", "Tribal Organization", and "Urban Indian Organization" have the meanings given those terms in
(Aug. 14, 1935, ch. 531, title XI, §1139, as added
Editorial Notes
Amendments
2010—Subsec. (c).
2009—
1994—Subsec. (d).
1990—Subsec. (d).
1989—Subsec. (d).
Subsec. (e)(1)(A), (4)(B).
Subsec. (f).
"(1) The Commission shall appoint an Executive Director of the Commission who shall be compensated at a rate fixed by the Commission, but which shall not exceed the rate established for level V of the Executive Schedule under title 5.
"(2) In addition to the Executive Director, the Commission may appoint and fix the compensation of such personnel as it deems advisable, in accordance with the provisions of title 5 governing appointments to the competitive service, and the provisions of
Subsec. (j).
Subsecs. (k), (l).
1988—Subsec. (d).
Subsec. (e)(1)(A), (4)(B).
Subsec. (j).
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
Amendment by
Effective Date of 1994 Amendment
Construction of 1990 Amendment
§1320b–9a. Child health quality measures
(a) Development of an initial core set of health care quality measures for children enrolled in Medicaid or CHIP
(1) In general
Not later than January 1, 2010, the Secretary shall identify and publish for general comment an initial, recommended core set of child health quality measures for use by State programs administered under subchapters XIX and XXI, health insurance issuers and managed care entities that enter into contracts with such programs, and providers of items and services under such programs.
(2) Identification of initial core measures
In consultation with the individuals and entities described in subsection (b)(3), the Secretary shall identify existing quality of care measures for children that are in use under public and privately sponsored health care coverage arrangements, or that are part of reporting systems that measure both the presence and duration of health insurance coverage over time.
(3) Recommendations and dissemination
Based on such existing and identified measures, the Secretary shall publish an initial core set of child health quality measures that includes (but is not limited to) the following:
(A) The duration of children's health insurance coverage over a 12-month time period.
(B) The availability and effectiveness of a full range of—
(i) preventive services, treatments, and services for acute conditions, including services to promote healthy birth, prevent and treat premature birth, and detect the presence or risk of physical or mental conditions that could adversely affect growth and development; and
(ii) treatments to correct or ameliorate the effects of physical and mental conditions, including chronic conditions and, with respect to dental care, conditions requiring the restoration of teeth, relief of pain and infection, and maintenance of dental health, in infants, young children, school-age children, and adolescents.
(C) The availability of care in a range of ambulatory and inpatient health care settings in which such care is furnished.
(D) The types of measures that, taken together, can be used to estimate the overall national quality of health care for children, including children with special needs, and to perform comparative analyses of pediatric health care quality and racial, ethnic, and socioeconomic disparities in child health and health care for children.
(4) Encourage voluntary and standardized reporting and mandatory reporting
(A) Voluntary reporting
Not later than 2 years after February 4, 2009, the Secretary, in consultation with States, shall develop a standardized format for reporting information and procedures and approaches that encourage States to use the initial core measurement set to voluntarily report information regarding the quality of pediatric health care under subchapters XIX and XXI.
(B) Mandatory reporting
Beginning with the annual State report on fiscal year 2024 required under subsection (c)(1), the Secretary shall require States to use the initial core measurement set and any updates or changes to that set to report information regarding the quality of pediatric health care under subchapters XIX and XXI using the standardized format for reporting information and procedures developed under subparagraph (A).
(5) Adoption of best practices in implementing quality programs
The Secretary shall disseminate information to States regarding best practices among States with respect to measuring and reporting on the quality of health care for children, and shall facilitate the adoption of such best practices. In developing best practices approaches, the Secretary shall give particular attention to State measurement techniques that ensure the timeliness and accuracy of provider reporting, encourage provider reporting compliance, encourage successful quality improvement strategies, and improve efficiency in data collection using health information technology.
(6) Reports to Congress
Not later than January 1, 2011, and every 3 years thereafter, the Secretary shall report to Congress on—
(A) the status of the Secretary's efforts to improve—
(i) quality related to the duration and stability of health insurance coverage for children under subchapters XIX and XXI;
(ii) the quality of children's health care under such subchapters, including preventive health services, dental care, health care for acute conditions, chronic health care, and health services to ameliorate the effects of physical and mental conditions and to aid in growth and development of infants, young children, school-age children, and adolescents with special health care needs; and
(iii) the quality of children's health care under such subchapters across the domains of quality, including clinical quality, health care safety, family experience with health care, health care in the most integrated setting, and elimination of racial, ethnic, and socioeconomic disparities in health and health care;
(B) the status of voluntary reporting by States under subchapters XIX and XXI, utilizing the initial core quality measurement set and, beginning with the report required on January 1, 2025, and for each annual report thereafter, the status of mandatory reporting by States under subchapters XIX and XXI, utilizing the initial core quality measurement set and any updates or changes to that set; and
(C) any recommendations for legislative changes needed to improve the quality of care provided to children under subchapters XIX and XXI, including recommendations for quality reporting by States.
(7) Technical assistance
The Secretary shall provide technical assistance to States to assist them in adopting and utilizing core child health quality measures in administering the State plans under subchapters XIX and XXI.
(8) Definition of core set
In this section, the term "core set" means a group of valid, reliable, and evidence-based quality measures that, taken together—
(A) provide information regarding the quality of health coverage and health care for children;
(B) address the needs of children throughout the developmental age span; and
(C) allow purchasers, families, and health care providers to understand the quality of care in relation to the preventive needs of children, treatments aimed at managing and resolving acute conditions, and diagnostic and treatment services whose purpose is to correct or ameliorate physical, mental, or developmental conditions that could, if untreated or poorly treated, become chronic.
(b) Advancing and improving pediatric quality measures
(1) Establishment of pediatric quality measures program
Not later than January 1, 2011, the Secretary shall establish a pediatric quality measures program to—
(A) improve and strengthen the initial core child health care quality measures established by the Secretary under subsection (a);
(B) expand on existing pediatric quality measures used by public and private health care purchasers and advance the development of such new and emerging quality measures; and
(C) increase the portfolio of evidence-based, consensus pediatric quality measures available to public and private purchasers of children's health care services, providers, and consumers.
(2) Evidence-based measures
The measures developed under the pediatric quality measures program shall, at a minimum, be—
(A) evidence-based and, where appropriate, risk adjusted;
(B) designed to identify and eliminate racial and ethnic disparities in child health and the provision of health care;
(C) designed to ensure that the data required for such measures is collected and reported in a standard format that permits comparison of quality and data at a State, plan, and provider level;
(D) periodically updated; and
(E) responsive to the child health needs, services, and domains of health care quality described in clauses (i), (ii), and (iii) of subsection (a)(6)(A).
(3) Process for pediatric quality measures program
In identifying gaps in existing pediatric quality measures and establishing priorities for development and advancement of such measures, the Secretary shall consult with—
(A) States;
(B) pediatricians, children's hospitals, and other primary and specialized pediatric health care professionals (including members of the allied health professions) who specialize in the care and treatment of children, particularly children with special physical, mental, and developmental health care needs;
(C) dental professionals, including pediatric dental professionals;
(D) health care providers that furnish primary health care to children and families who live in urban and rural medically underserved communities or who are members of distinct population sub-groups at heightened risk for poor health outcomes;
(E) national organizations representing children, including children with disabilities and children with chronic conditions;
(F) national organizations representing consumers and purchasers of children's health care;
(G) national organizations and individuals with expertise in pediatric health quality measurement; and
(H) voluntary consensus standards setting organizations and other organizations involved in the advancement of evidence-based measures of health care.
(4) Developing, validating, and testing a portfolio of pediatric quality measures
As part of the program to advance pediatric quality measures, the Secretary shall—
(A) award grants and contracts for the development, testing, and validation of new, emerging, and innovative evidence-based measures for children's health care services across the domains of quality described in clauses (i), (ii), and (iii) of subsection (a)(6)(A); and
(B) award grants and contracts for—
(i) the development of consensus on evidence-based measures for children's health care services;
(ii) the dissemination of such measures to public and private purchasers of health care for children; and
(iii) the updating of such measures as necessary.
(5) Revising, strengthening, and improving initial core measures
Beginning no later than January 1, 2013, and annually thereafter, the Secretary shall publish recommended changes to the core measures described in subsection (a) that shall reflect the testing, validation, and consensus process for the development of pediatric quality measures described in subsection 1 paragraphs (1) through (4).
(6) Definition of pediatric quality measure
In this subsection, the term "pediatric quality measure" means a measurement of clinical care that is capable of being examined through the collection and analysis of relevant information, that is developed in order to assess 1 or more aspects of pediatric health care quality in various institutional and ambulatory health care settings, including the structure of the clinical care system, the process of care, the outcome of care, or patient experiences in care.
(7) Construction
Nothing in this section shall be construed as supporting the restriction of coverage, under subchapter XIX or XXI or otherwise, to only those services that are evidence-based.
(c) Annual State reports regarding State-specific quality of care measures applied under Medicaid or CHIP
(1) Annual State reports
Each State with a State plan approved under subchapter XIX or a State child health plan approved under subchapter XXI shall annually report to the Secretary on the—
(A) State-specific child health quality measures applied by the States under such plans, including measures described in subparagraphs (A) and (B) of subsection (a)(6) and, beginning with the annual report on fiscal year 2024, all of the core measures described in subsection (a) and any updates or changes to those measures; and
(B) State-specific information on the quality of health care furnished to children under such plans, including information collected through external quality reviews of managed care organizations under
(2) Publication
Not later than September 30, 2010, and annually thereafter, the Secretary shall collect, analyze, and make publicly available the information reported by States under paragraph (1).
(d) Demonstration projects for improving the quality of children's health care and the use of health information technology
(1) In general
During the period of fiscal years 2009 through 2013, the Secretary shall award not more than 10 grants to States and child health providers to conduct demonstration projects to evaluate promising ideas for improving the quality of children's health care provided under subchapter XIX or XXI, including projects to—
(A) experiment with, and evaluate the use of, new measures of the quality of children's health care under such subchapters (including testing the validity and suitability for reporting of such measures);
(B) promote the use of health information technology in care delivery for children under such subchapters;
(C) evaluate provider-based models which improve the delivery of children's health care services under such subchapters, including care management for children with chronic conditions and the use of evidence-based approaches to improve the effectiveness, safety, and efficiency of health care services for children; or
(D) demonstrate the impact of the model electronic health record format for children developed and disseminated under subsection (f) on improving pediatric health, including the effects of chronic childhood health conditions, and pediatric health care quality as well as reducing health care costs.
(2) Requirements
In awarding grants under this subsection, the Secretary shall ensure that—
(A) only 1 demonstration project funded under a grant awarded under this subsection shall be conducted in a State; and
(B) demonstration projects funded under grants awarded under this subsection shall be conducted evenly between States with large urban areas and States with large rural areas.
(3) Authority for multistate projects
A demonstration project conducted with a grant awarded under this subsection may be conducted on a multistate basis, as needed.
(4) Funding
$20,000,000 of the amount appropriated under subsection (i) for a fiscal year shall be used to carry out this subsection.
(e) Childhood obesity demonstration project
(1) Authority to conduct demonstration
The Secretary, in consultation with the Administrator of the Centers for Medicare & Medicaid Services, shall conduct a demonstration project to develop a comprehensive and systematic model for reducing childhood obesity by awarding grants to eligible entities to carry out such project. Such model shall—
(A) identify, through self-assessment, behavioral risk factors for obesity among children;
(B) identify, through self-assessment, needed clinical preventive and screening benefits among those children identified as target individuals on the basis of such risk factors;
(C) provide ongoing support to such target individuals and their families to reduce risk factors and promote the appropriate use of preventive and screening benefits; and
(D) be designed to improve health outcomes, satisfaction, quality of life, and appropriate use of items and services for which medical assistance is available under subchapter XIX or child health assistance is available under subchapter XXI among such target individuals.
(2) Eligibility entities 2
For purposes of this subsection, an eligible entity is any of the following:
(A) A city, county, or Indian tribe.
(B) A local or tribal educational agency.
(C) An accredited university, college, or community college.
(D) A Federally-qualified health center.
(E) A local health department.
(F) A health care provider.
(G) A community-based organization.
(H) Any other entity determined appropriate by the Secretary, including a consortia 3 or partnership of entities described in any of subparagraphs (A) through (G).
(3) Use of funds
An eligible entity awarded a grant under this subsection shall use the funds made available under the grant to—
(A) carry out community-based activities related to reducing childhood obesity, including by—
(i) forming partnerships with entities, including schools and other facilities providing recreational services, to establish programs for after school and weekend community activities that are designed to reduce childhood obesity;
(ii) forming partnerships with daycare facilities to establish programs that promote healthy eating behaviors and physical activity; and
(iii) developing and evaluating community educational activities targeting good nutrition and promoting healthy eating behaviors;
(B) carry out age-appropriate school-based activities that are designed to reduce childhood obesity, including by—
(i) developing and testing educational curricula and intervention programs designed to promote healthy eating behaviors and habits in youth, which may include—
(I) after hours physical activity programs; and
(II) science-based interventions with multiple components to prevent eating disorders including nutritional content, understanding and responding to hunger and satiety, positive body image development, positive self-esteem development, and learning life skills (such as stress management, communication skills, problemsolving and decisionmaking skills), as well as consideration of cultural and developmental issues, and the role of family, school, and community;
(ii) providing education and training to educational professionals regarding how to promote a healthy lifestyle and a healthy school environment for children;
(iii) planning and implementing a healthy lifestyle curriculum or program with an emphasis on healthy eating behaviors and physical activity; and
(iv) planning and implementing healthy lifestyle classes or programs for parents or guardians, with an emphasis on healthy eating behaviors and physical activity for children;
(C) carry out educational, counseling, promotional, and training activities through the local health care delivery systems including by—
(i) promoting healthy eating behaviors and physical activity services to treat or prevent eating disorders, being overweight, and obesity;
(ii) providing patient education and counseling to increase physical activity and promote healthy eating behaviors;
(iii) training health professionals on how to identify and treat obese and overweight individuals which may include nutrition and physical activity counseling; and
(iv) providing community education by a health professional on good nutrition and physical activity to develop a better understanding of the relationship between diet, physical activity, and eating disorders, obesity, or being overweight; and
(D) provide, through qualified health professionals, training and supervision for community health workers to—
(i) educate families regarding the relationship between nutrition, eating habits, physical activity, and obesity;
(ii) educate families about effective strategies to improve nutrition, establish healthy eating patterns, and establish appropriate levels of physical activity; and
(iii) educate and guide parents regarding the ability to model and communicate positive health behaviors.
(4) Priority
In awarding grants under paragraph (1), the Secretary shall give priority to awarding grants to eligible entities—
(A) that demonstrate that they have previously applied successfully for funds to carry out activities that seek to promote individual and community health and to prevent the incidence of chronic disease and that can cite published and peer-reviewed research demonstrating that the activities that the entities propose to carry out with funds made available under the grant are effective;
(B) that will carry out programs or activities that seek to accomplish a goal or goals set by the State in the Healthy People 2010 plan of the State;
(C) that provide non-Federal contributions, either in cash or in-kind, to the costs of funding activities under the grants;
(D) that develop comprehensive plans that include a strategy for extending program activities developed under grants in the years following the fiscal years for which they receive grants under this subsection;
(E) located in communities that are medically underserved, as determined by the Secretary;
(F) located in areas in which the average poverty rate is at least 150 percent or higher of the average poverty rate in the State involved, as determined by the Secretary; and
(G) that submit plans that exhibit multisectoral, cooperative conduct that includes the involvement of a broad range of stakeholders, including—
(i) community-based organizations;
(ii) local governments;
(iii) local educational agencies;
(iv) the private sector;
(v) State or local departments of health;
(vi) accredited colleges, universities, and community colleges;
(vii) health care providers;
(viii) State and local departments of transportation and city planning; and
(ix) other entities determined appropriate by the Secretary.
(5) Program design
(A) Initial design
Not later than 1 year after February 4, 2009, the Secretary shall design the demonstration project. The demonstration should draw upon promising, innovative models and incentives to reduce behavioral risk factors. The Administrator of the Centers for Medicare & Medicaid Services shall consult with the Director of the Centers for Disease Control and Prevention, the Director of the Office of Minority Health, the heads of other agencies in the Department of Health and Human Services, and such professional organizations, as the Secretary determines to be appropriate, on the design, conduct, and evaluation of the demonstration.
(B) Number and project areas
Not later than 2 years after February 4, 2009, the Secretary shall award 1 grant that is specifically designed to determine whether programs similar to programs to be conducted by other grantees under this subsection should be implemented with respect to the general population of children who are eligible for child health assistance under State child health plans under subchapter XXI in order to reduce the incidence of childhood obesity among such population.
(6) Report to Congress
Not later than 3 years after the date the Secretary implements the demonstration project under this subsection, the Secretary shall submit to Congress a report that describes the project, evaluates the effectiveness and cost effectiveness of the project, evaluates the beneficiary satisfaction under the project, and includes any such other information as the Secretary determines to be appropriate.
(7) Definitions
In this subsection:
(A) Federally-qualified health center
The term "Federally-qualified health center" has the meaning given that term in
(B) Indian tribe
The term "Indian tribe" has the meaning given that term in
(C) Self-assessment
The term "self-assessment" means a form that—
(i) includes questions regarding—
(I) behavioral risk factors;
(II) needed preventive and screening services; and
(III) target individuals' preferences for receiving follow-up information;
(ii) is assessed using such computer generated assessment programs; and
(iii) allows for the provision of such ongoing support to the individual as the Secretary determines appropriate.
(D) Ongoing support
The term "ongoing support" means—
(i) to provide any target individual with information, feedback, health coaching, and recommendations regarding—
(I) the results of a self-assessment given to the individual;
(II) behavior modification based on the self-assessment; and
(III) any need for clinical preventive and screening services or treatment including medical nutrition therapy;
(ii) to provide any target individual with referrals to community resources and programs available to assist the target individual in reducing health risks; and
(iii) to provide the information described in clause (i) to a health care provider, if designated by the target individual to receive such information.
(8) Appropriation
Out of any funds in the Treasury not otherwise appropriated, there is appropriated to carry out this subsection, $25,000,000 for the period of fiscal years 2010 through 2014,,1 $10,000,000 for the period of fiscal years 2016 and 2017, and $30,000,000 for the period of fiscal years 2018 through 2023.
(f) Development of model electronic health record format for children enrolled in Medicaid or CHIP
(1) In general
Not later than January 1, 2010, the Secretary shall establish a program to encourage the development and dissemination of a model electronic health record format for children enrolled in the State plan under subchapter XIX or the State child health plan under subchapter XXI that is—
(A) subject to State laws, accessible to parents, caregivers, and other consumers for the sole purpose of demonstrating compliance with school or leisure activity requirements, such as appropriate immunizations or physicals;
(B) designed to allow interoperable exchanges that conform with Federal and State privacy and security requirements;
(C) structured in a manner that permits parents and caregivers to view and understand the extent to which the care their children receive is clinically appropriate and of high quality; and
(D) capable of being incorporated into, and otherwise compatible with, other standards developed for electronic health records.
(2) Funding
$5,000,000 of the amount appropriated under subsection (i) for a fiscal year shall be used to carry out this subsection.
(g) Study of pediatric health and health care quality measures
(1) In general
Not later than July 1, 2010, the Institute of Medicine shall study and report to Congress on the extent and quality of efforts to measure child health status and the quality of health care for children across the age span and in relation to preventive care, treatments for acute conditions, and treatments aimed at ameliorating or correcting physical, mental, and developmental conditions in children. In conducting such study and preparing such report, the Institute of Medicine shall—
(A) consider all of the major national population-based reporting systems sponsored by the Federal Government that are currently in place, including reporting requirements under Federal grant programs and national population surveys and estimates conducted directly by the Federal Government;
(B) identify the information regarding child health and health care quality that each system is designed to capture and generate, the study and reporting periods covered by each system, and the extent to which the information so generated is made widely available through publication;
(C) identify gaps in knowledge related to children's health status, health disparities among subgroups of children, the effects of social conditions on children's health status and use and effectiveness of health care, and the relationship between child health status and family income, family stability and preservation, and children's school readiness and educational achievement and attainment; and
(D) make recommendations regarding improving and strengthening the timeliness, quality, and public transparency and accessibility of information about child health and health care quality.
(2) Funding
Up to $1,000,000 of the amount appropriated under subsection (i) for a fiscal year shall be used to carry out this subsection.
(h) Rule of construction
Notwithstanding any other provision in this section, no evidence based quality measure developed, published, or used as a basis of measurement or reporting under this section may be used to establish an irrebuttable presumption regarding either the medical necessity of care or the maximum permissible coverage for any individual child who is eligible for and receiving medical assistance under subchapter XIX or child health assistance under subchapter XXI.
(i) Appropriation
(1) In general
Out of any funds in the Treasury not otherwise appropriated, there is appropriated—
(A) for each of fiscal years 2009 through 2013, $45,000,000 for the purpose of carrying out this section (other than subsection (e));
(B) for the period of fiscal years 2016 and 2017, $20,000,000 for the purpose of carrying out this section (other than subsections (e), (f), and (g));
(C) for the period of fiscal years 2018 through 2023, $90,000,000 for the purpose of carrying out this section (other than subsections (e), (f), and (g));
(D) for the period of fiscal years 2024 through 2027, $60,000,000 for the purpose of carrying out this section (other than subsections (e), (f), and (g)); and
(E) for each of fiscal years 2028 and 2029, $15,000,000 for the purpose of carrying out this section (other than subsections (e), (f), and (g)).
(2) Availability
Funds appropriated under this subsection shall remain available until expended.
(Aug. 14, 1935, ch. 531, title XI, §1139A, as added and amended
Editorial Notes
Amendments
2022—Subsec. (i)(1)(E).
2018—Subsec. (a)(4).
Subsec. (a)(6)(B).
Subsec. (c)(1)(A).
Subsec. (e)(8).
Subsec. (i).
Subsec. (i)(1)(D).
2015—Subsec. (e)(8).
Subsec. (i).
2010—Subsec. (e)(8).
2009—Subsec. (a)(3)(B)(ii).
Subsec. (a)(6)(A)(ii).
Statutory Notes and Related Subsidiaries
Effective Date
Section and amendment by
2 So in original. Probably should be "Eligible entities".
3 So in original. Probably should be "consortium".
§1320b–9b. Adult health quality measures
(a) Development of core set of health care quality measures for adults eligible for benefits under Medicaid
The Secretary shall identify and publish a recommended core set of adult health quality measures for Medicaid eligible adults in the same manner as the Secretary identifies and publishes a core set of child health quality measures under
(b) Deadlines
(1) Recommended measures
Not later than January 1, 2011, the Secretary shall identify and publish for comment a recommended core set of adult health quality measures for Medicaid eligible adults.
(2) Dissemination
Not later than January 1, 2012, the Secretary shall publish an initial core set of adult health quality measures that are applicable to Medicaid eligible adults.
(3) Standardized reporting
(A) Voluntary reporting
Not later than January 1, 2013, the Secretary, in consultation with States, shall develop a standardized format for reporting information based on the initial core set of adult health quality measures and create procedures to encourage States to use such measures to voluntarily report information regarding the quality of health care for Medicaid eligible adults.
(B) Mandatory reporting with respect to behavioral health measures
Beginning with the State report required under subsection (d)(1) for 2024, the Secretary shall require States to use all behavioral health measures included in the core set of adult health quality measures and any updates or changes to such measures to report information, using the standardized format for reporting information and procedures developed under subparagraph (A), regarding the quality of behavioral health care for Medicaid eligible adults.
(4) Reports to Congress
Not later than January 1, 2014, and every 3 years thereafter, the Secretary shall include in the report to Congress required under
(5) Establishment of Medicaid quality measurement program
(A) In general
Not later than 12 months after the release of the recommended core set of adult health quality measures under paragraph (1)) 1, the Secretary shall establish a Medicaid Quality Measurement Program in the same manner as the Secretary establishes the pediatric quality measures program under
(B) Revising, strengthening, and improving initial core measures
Beginning not later than 24 months after the establishment of the Medicaid Quality Measurement Program, and annually thereafter, the Secretary shall publish recommended changes to the initial core set of adult health quality measures that shall reflect the results of the testing, validation, and consensus process for the development of adult health quality measures.
(C) Behavioral health measures
Beginning with respect to State reports required under subsection (d)(1) for 2024, the core set of adult health quality measures maintained under this paragraph (and any updates or changes to such measures) shall include behavioral health measures.
(c) Construction
Nothing in this section shall be construed as supporting the restriction of coverage, under subchapter XIX or XXI or otherwise, to only those services that are evidence-based, or in anyway limiting available services.
(d) Annual State reports regarding State-specific quality of care measures applied under Medicaid
(1) Annual State reports
Each State with a State plan or waiver approved under subchapter XIX shall annually report (separately or as part of the annual report required under
(A) State-specific adult health quality measures applied by the State under such plan, including measures described in subsection (b)(5) and, beginning with the report for 2024, all behavioral health measures included in the core set of adult health quality measures maintained under such subsection (b)(5) and any updates or changes to such measures (as required under subsection (b)(3)); and
(B) State-specific information on the quality of health care furnished to Medicaid eligible adults under such plan, including information collected through external quality reviews of managed care organizations under
(2) Publication
Not later than September 30, 2014, and annually thereafter, the Secretary shall collect, analyze, and make publicly available the information reported by States under paragraph (1).
(e) Appropriation
Out of any funds in the Treasury not otherwise appropriated, there is appropriated for each of fiscal years 2010 through 2014, $60,000,000 for the purpose of carrying out this section. Funds appropriated under this subsection shall remain available until expended. Of the funds appropriated under this subsection, not less than $15,000,000 shall be used to carry out
(Aug. 14, 1935, ch. 531, title XI, §1139B, as added
Editorial Notes
Amendments
2018—Subsec. (b)(3).
Subsec. (b)(5)(C).
Subsec. (d)(1)(A).
2014—Subsec. (b)(5)(A).
Subsec. (e).
1 So in original. The second closing parenthesis probably should not appear.
§1320b–10. Prohibitions relating to references to Social Security or Medicare
(a) Prohibited acts
(1) No person may use, in connection with any item constituting an advertisement, solicitation, circular, book, pamphlet, or other communication (including any Internet or other electronic communication), or a play, motion picture, broadcast, telecast, or other production, alone or with other words, letters, symbols, or emblems—
(A) the words "Social Security", "Social Security Account", "Social Security System", "Social Security Administration", "Medicare", "Centers for Medicare & Medicaid Services", "Department of Health and Human Services", "Health and Human Services", "Supplemental Security Income Program", "Medicaid", "Death Benefits Update", "Federal Benefit Information", "Funeral Expenses", or "Final Supplemental Plan", the letters "SSA", "CMS", "DHHS", "HHS", or "SSI", or any other combination or variation of such words or letters, or
(B) a symbol or emblem of the Social Security Administration, Centers for Medicare & Medicaid Services, or Department of Health and Human Services (including the design of, or a reasonable facsimile of the design of, the social security card issued pursuant to
in a manner which such person knows or should know would convey, or in a manner which reasonably could be interpreted or construed as conveying, the false impression that such item is approved, endorsed, or authorized by the Social Security Administration, the Centers for Medicare & Medicaid Services, or the Department of Health and Human Services or that such person has some connection with, or authorization from, the Social Security Administration, the Centers for Medicare & Medicaid Services, or the Department of Health and Human Services. The preceding provisions of this subsection shall not apply with respect to the use by any agency or instrumentality of a State or political subdivision of a State of any words or letters which identify an agency or instrumentality of such State or of a political subdivision of such State or the use by any such agency or instrumentality of any symbol or emblem of an agency or instrumentality of such State or a political subdivision of such State.
(2)(A) No person may, for a fee, reproduce, reprint, or distribute any item consisting of a form, application, or other publication of the Social Security Administration unless such person has obtained specific, written authorization for such activity in accordance with regulations which the Commissioner of Social Security shall prescribe.
(B) No person may, for a fee, reproduce, reprint, or distribute any item consisting of a form, application, or other publication of the Department of Health and Human Services unless such person has obtained specific, written authorization for such activity in accordance with regulations which the Secretary shall prescribe.
(3) Any determination of whether the use of one or more words, letters, symbols, or emblems (or any combination or variation thereof) in connection with an item described in paragraph (1) or the reproduction, reprinting, or distribution of an item described in paragraph (2) is a violation of this subsection shall be made without regard to any inclusion in such item (or any so reproduced, reprinted, or distributed copy thereof) of a disclaimer of affiliation with the United States Government or any particular agency or instrumentality thereof.
(4)(A) No person shall offer, for a fee, to assist an individual to obtain a product or service that the person knows or should know is provided free of charge by the Social Security Administration unless, at the time the offer is made, the person provides to the individual to whom the offer is tendered a notice that—
(i) explains that the product or service is available free of charge from the Social Security Administration, and
(ii) complies with standards prescribed by the Commissioner of Social Security respecting the content of such notice and its placement, visibility, and legibility.
(B) Subparagraph (A) shall not apply to any offer—
(i) to serve as a claimant representative in connection with a claim arising under subchapter II, subchapter VIII, or subchapter XVI; or
(ii) to prepare, or assist in the preparation of, an individual's plan for achieving self-support under subchapter XVI.
(b) Civil penalties
The Commissioner or the Secretary (as applicable) may, pursuant to regulations, impose a civil money penalty not to exceed—
(1) except as provided in paragraph (2), $5,000, or
(2) in the case of a violation consisting of a broadcast or telecast, $25,000,
against any person for each violation by such person of subsection (a). In the case of any items referred to in subsection (a)(1) consisting of pieces of mail, each such piece of mail which contains one or more words, letters, symbols, or emblems in violation of subsection (a) shall represent a separate violation. In the case of any items referred to in subsection (a)(1) consisting of Internet or other electronic communications, each dissemination, viewing, or accessing of such a communication which contains one or more words, letters, symbols, or emblems in violation of subsection (a) shall represent a separate violation 2 In the case of any item referred to in subsection (a)(2), the reproduction, reprinting, or distribution of such item shall be treated as a separate violation with respect to each copy thereof so reproduced, reprinted, or distributed.
(c) Application of other law; compromise, recovery, and deposit into Treasury of civil money penalties
(1) The provisions of
(2) Penalties imposed against a person under subsection (b) may be compromised by the Commissioner or the Secretary (as applicable) and may be recovered in a civil action in the name of the United States brought in the district court of the United States for the district in which the violation occurred or where the person resides, has its principal office, or may be found, as determined by the Commissioner or the Secretary (as applicable). Amounts recovered under this section shall be paid to the Commissioner or the Secretary (as applicable) and shall be deposited as miscellaneous receipts of the Treasury of the United States, except that (A) to the extent that such amounts are recovered under this section as penalties imposed for misuse of words, letters, symbols, or emblems relating to the Social Security Administration, such amounts shall be deposited into the Federal Old-Age and Survivors Insurance Trust Fund, and (B) to the extent that such amounts are recovered under this section as penalties imposed for misuse of words, letters, symbols, or emblems relating to the Department of Health and Human Services, such amounts shall be deposited into the Federal Hospital Insurance Trust Fund or the Federal Supplementary Medical Insurance Trust Fund, as appropriate. The amount of such penalty when finally determined, or the amount agreed upon in compromise, may be deducted from any sum then or later owing by the United States to the person against whom the penalty has been imposed.
(d) Enforcement
The preceding provisions of this section may be enforced through the Office of the Inspector General of the Social Security Administration or the Office of the Inspector General of the Department of Health and Human Services (as appropriate).
(Aug. 14, 1935, ch. 531, title XI, §1140, as added
Editorial Notes
Amendments
2015—Subsec. (a)(1).
Subsec. (b).
2004—
Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(4).
2003—Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
1994—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsec. (a)(2)(A), (B).
Subsec. (a)(3).
Subsec. (b).
Subsec. (b)(1).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d).
1988—Subsec. (c)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date of 1994 Amendment
Amendment by section 108(b)(12) of
Amendment by section 312(a)–(j) of
Effective Date of 1988 Amendment
Amendment by
Effective Date
Reports on Operation of this Section
Consultation by United States Postal Service Regarding Prevention of Deceptive Mailings
United States Postal Service to consult and coordinate functions of Secretary of Department of Health and Human Services in administration of this section, see section 4 of
2 So in original. Probably should be followed by a period.
§1320b–11. Blood donor locator service
(a) In general
The Commissioner of Social Security shall establish and conduct a Blood Donor Locator Service, which shall be used to obtain and transmit to any authorized person (as defined in subsection (h)(1)) the most recent mailing address of any blood donor who, as indicated by the donated blood or products derived therefrom or by the history of the subsequent use of such blood or blood products, has or may have the virus for acquired immune deficiency syndrome, in order to inform such donor of the possible need for medical care and treatment.
(b) Provision of address information
Whenever the Commissioner of Social Security receives a request, filed by an authorized person (as defined in subsection (h)(1)), for the mailing address of a donor described in subsection (a) and the Commissioner of Social Security is reasonably satisfied that the requirements of this section have been met with respect to such request, the Commissioner of Social Security shall promptly undertake to provide the requested address information from—
(1) the files and records maintained by the Social Security Administration, and
(2) such files and records obtained pursuant to section 6103(m)(6) of the Internal Revenue Code of 1986 as the Commissioner of Social Security considers necessary to comply with such request.
(c) Manner and form of requests
A request for address information under this section shall be filed in such manner and form as the Commissioner of Social Security shall by regulation prescribe, shall include the blood donor's social security account number, and shall be accompanied or supported by such documents as the Commissioner of Social Security may determine to be necessary.
(d) Procedures and safeguards
Any authorized person shall, as a condition for receiving address information from the Blood Donor Locator Service—
(1) establish and maintain, to the satisfaction of the Commissioner of Social Security, a system for standardizing records with respect to any request, the reason for such request, and the date of such request made by or of it and any disclosure of address information made by or to it,
(2) establish and maintain, to the satisfaction of the Commissioner of Social Security, a secure area or place in which such address information and all related blood donor records shall be stored,
(3) restrict, to the satisfaction of the Commissioner of Social Security, access to the address information and related blood donor records only to persons whose duties or responsibilities require access and to whom disclosure may be made under the provisions of this section,
(4) provide such other safeguards which the Commissioner of Social Security determines (and which the Commissioner of Social Security prescribes in regulations) to be necessary or appropriate to protect the confidentiality of the address information and related blood donor records,
(5) furnish a report to the Commissioner of Social Security, at such time and containing such information as the Commissioner of Social Security may prescribe, which describes the procedures established and utilized by the authorized person for ensuring the confidentiality of address information and related blood donor records required under this subsection, and
(6) destroy such address information and related blood donor records, upon completion of their use in providing the notification for which the information was obtained, so as to make such information and records undisclosable.
If the Commissioner of Social Security determines that any authorized person has failed to, or does not, meet the requirements of this subsection, the Commissioner of Social Security may, after any proceedings for review established under subsection (f), take such actions as are necessary to ensure such requirements are met, including refusing to disclose address information to such authorized person until the Commissioner of Social Security determines that such requirements have been or will be met. In the case of any authorized person who discloses any address information received pursuant to this section or any related blood donor records to any agent, this subsection shall apply to such authorized person and each such agent (except that, in the case of an agent, any report to the Commissioner of Social Security or other action with respect to the Commissioner of Social Security shall be made or taken through such authorized person). The Commissioner of Social Security shall destroy all related blood donor records in the possession of the Social Security Administration upon completion of their use in transmitting mailing addresses as required under subsection (a), so as to make such records undisclosable.
(e) Arrangements with State agencies and authorized persons
The Commissioner of Social Security, in carrying out the Commissioner's duties and functions under this section, shall enter into arrangements—
(1) with State agencies to accept and to transmit to the Commissioner of Social Security requests for address information under this section and to accept and to transmit such information to authorized persons, and
(2) with State agencies and authorized persons otherwise to cooperate with the Commissioner of Social Security in carrying out the purposes of this section.
(f) Procedures for administrative review
The Commissioner of Social Security shall by regulation prescribe procedures which provide for administrative review of any determination that any authorized person has failed to meet the requirements of this section.
(g) Unauthorized disclosure of information
Paragraphs (1), (2), and (3) of section 7213(a) of the Internal Revenue Code of 1986 shall apply with respect to the unauthorized willful disclosure to any person of address information or related blood donor records acquired or maintained by or under the Commissioner of Social Security, or pursuant to this section by any authorized person, or of information derived from any such address information or related blood donor records, in the same manner and to the same extent as such paragraphs apply with respect to unauthorized disclosures of return and return information described in such paragraphs. Paragraph (4) of section 7213(a) of such Code shall apply with respect to the willful offer of any item of material value in exchange for any such address information or related blood donor record in the same manner and to the same extent as such paragraph applies with respect to offers (in exchange for any return or return information) described in such paragraph.
(h) Definitions
For purposes of this section—
(1) Authorized person
The term "authorized person" means—
(A) any agency of a State (or of a political subdivision of a State) which has duties or authority under State law relating to the public health or otherwise has the duty or authority under State law to regulate blood donations, and
(B) any entity engaged in the acceptance of blood donations which is licensed or registered by the Food and Drug Administration in connection with the acceptance of such blood donations, and which, in accordance with such regulations as may be prescribed by the Commissioner of Social Security, provides for—
(i) the confidentiality of any address information received pursuant to this section and related blood donor records,
(ii) blood donor notification procedures for individuals with respect to whom such information is requested and a finding has been made that they have or may have the virus for acquired immune deficiency syndrome, and
(iii) counseling services for such individuals who have been found to have such virus.
(2) Related blood donor record
The term "related blood donor record" means any record, list, or compilation which indicates, directly or indirectly, the identity of any individual with respect to whom a request for address information has been made pursuant to this section.
(3) State
The term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Marianas, and the Trust Territory of the Pacific Islands.
(Aug. 14, 1935, ch. 531, title XI, §1141, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsecs. (b)(2) and (g), is classified generally to Title 26, Internal Revenue Code.
Amendments
1994—Subsec. (a).
Subsec. (b), (c).
Subsec. (d).
Subsec. (e).
Subsecs. (f), (g), (h)(1)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by
Time Limit for Establishment of Blood Donor Locator Service
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§1320b–12. Research on outcomes of health care services and procedures
(a) Establishment of program
(1) In general
The Secretary, acting through the Director of the Agency for Healthcare Research and Quality, shall—
(A) conduct and support research with respect to the outcomes, effectiveness, and appropriateness of health care services and procedures in order to identify the manner in which diseases, disorders, and other health conditions can most effectively and appropriately be prevented, diagnosed, treated, and managed clinically; and
(B) assure that the needs and priorities of the program under subchapter XVIII are appropriately reflected in the development and periodic review and updating (through the process set forth in section 299b–2 1 of this title) of treatment-specific or condition-specific practice guidelines for clinical treatments and conditions in forms appropriate for use in clinical practice, for use in educational programs, and for use in reviewing quality and appropriateness of medical care.
(2) Evaluations of alternative services and procedures
In carrying out paragraph (1), the Secretary shall conduct or support evaluations of the comparative effects, on health and functional capacity, of alternative services and procedures utilized in preventing, diagnosing, treating, and clinically managing diseases, disorders, and other health conditions.
(3) Initial guidelines
(A) In carrying out paragraph (1)(B) of this subsection, and section 299b–1(d) 1 of this title, the Secretary shall, by not later than January 1, 1991, assure the development of an initial set of the guidelines specified in paragraph (1)(B) that shall include not less than 3 clinical treatments or conditions that—
(i)(I) account for a significant portion of expenditures under subchapter XVIII; and
(II) have a significant variation in the frequency or the type of treatment provided; or
(ii) otherwise meet the needs and priorities of the program under subchapter XVIII, as set forth under subsection (b)(3).
(B)(i) The Secretary shall provide for the use of guidelines developed under subparagrah 2 (A) to improve the quality, effectiveness, and appropriateness of care provided under subchapter XVIII. The Secretary shall determine the impact of such use on the quality, appropriateness, effectiveness, and cost of medical care provided under such subchapter and shall report to the Congress on such determination by not later than January 1, 1993.
(ii) For the purpose of carrying out clause (i), the Secretary shall expend, from the amounts specified in clause (iii), $1,000,000 for fiscal year 1990 and $1,500,000 for each of the fiscal years 1991 and 1992.
(iii) For each fiscal year, for purposes of expenditures required in clause (ii)—
(I) 60 percent of an amount equal to the expenditure involved is appropriated from the Federal Hospital Insurance Trust Fund (established under
(II) 40 percent of an amount equal to the expenditure involved is appropriated from the Federal Supplementary Medical Insurance Trust Fund (established under
(b) Priorities
(1) In general
The Secretary shall establish priorities with respect to the diseases, disorders, and other health conditions for which research and evaluations are to be conducted or supported under subsection (a). In establishing such priorities, the Secretary shall, with respect to a disease, disorder, or other health condition, consider the extent to which—
(A) improved methods of prevention, diagnosis, treatment, and clinical management can benefit a significant number of individuals;
(B) there is significant variation among physicians in the particular services and procedures utilized in making diagnoses and providing treatments or there is significant variation in the outcomes of health care services or procedures due to different patterns of diagnosis or treatment;
(C) the services and procedures utilized for diagnosis and treatment result in relatively substantial expenditures; and
(D) the data necessary for such evaluations are readily available or can readily be developed.
(2) Preliminary assessments
For the purpose of establishing priorities under paragraph (1), the Secretary may, with respect to services and procedures utilized in preventing, diagnosing, treating, and clinically managing diseases, disorders, and other health conditions, conduct or support assessments of the extent to which—
(A) rates of utilization vary among similar populations for particular diseases, disorders, and other health conditions;
(B) uncertainties exist on the effect of utilizing a particular service or procedure; or
(C) inappropriate services and procedures are provided.
(3) Relationship with medicare program
In establishing priorities under paragraph (1) for research and evaluation, and under section 299b–3(a) 1 of this title for the agenda under such section, the Secretary shall assure that such priorities appropriately reflect the needs and priorities of the program under subchapter XVIII, as set forth by the Administrator of the Centers for Medicare & Medicaid Services.
(c) Methodologies and criteria for evaluations
For the purpose of facilitating research under subsection (a), the Secretary shall—
(1) conduct and support research with respect to the improvement of methodologies and criteria utilized in conducting research with respect to outcomes of health care services and procedures;
(2) conduct and support reviews and evaluations of existing research findings with respect to such treatment or conditions;
(3) conduct and support reviews and evaluations of the existing methodologies that use large data bases in conducting such research and shall develop new research methodologies, including data-based methods of advancing knowledge and methodologies that measure clinical and functional status of patients, with respect to such research;
(4) provide grants and contracts to research centers, and contracts to other entities, to conduct such research on such treatment or conditions, including research on the appropriate use of prescription drugs;
(5) conduct and support research and demonstrations on the use of claims data and data on clinical and functional status of patients in determining the outcomes, effectiveness, and appropriateness of such treatment; and
(6) conduct and support supplementation of existing data bases, including the collection of new information, to enhance data bases for research purposes, and the design and development of new data bases that would be used in outcomes and effectiveness research.
(d) Standards for data bases
In carrying out this section, the Secretary shall develop—
(1) uniform definitions of data to be collected and used in describing a patient's clinical and functional status;
(2) common reporting formats and linkages for such data; and
(3) standards to assure the security, confidentiality, accuracy, and appropriate maintenance of such data.
(e) Dissemination of research findings and guidelines
(1) In general
The Secretary shall provide for the dissemination of the findings of research and the guidelines described in subsection (a), and for the education of providers and others in the application of such research findings and guidelines.
(2) Cooperative educational activities
In disseminating findings and guidelines under paragraph (1), and in providing for education under such paragraph, the Secretary shall work with professional associations, medical specialty and subspecialty organizations, and other relevant groups to identify and implement effective means to educate physicians, other providers, consumers, and others in using such findings and guidelines, including training for physician managers within provider organizations.
(f) Evaluations
The Secretary shall conduct and support evaluations of the activities carried out under this section to determine the extent to which such activities have had an effect on the practices of physicians in providing medical treatment, the delivery of health care, and the outcomes of health care services and procedures.
(g) Research with respect to dissemination
The Secretary may conduct or support research with respect to improving methods of disseminating information on the effectiveness and appropriateness of health care services and procedures.
(h) Omitted
(i) Authorization of appropriations
(1) In general
There are authorized to be appropriated to carry out this section—
(A) $50,000,000 for fiscal year 1990;
(B) $75,000,000 for fiscal year 1991;
(C) $110,000,000 for fiscal year 1992;
(D) $148,000,000 for fiscal year 1993; and
(E) $185,000,000 for fiscal year 1994.
(2) Specifications
For the purpose of carrying out this section, for each of the fiscal years 1990 through 1992 an amount equal to two-thirds of the amounts authorized to be appropriated under paragraph (1), and for each of the fiscal years 1993 and 1994 an amount equal to 70 percent of such amounts, are to be appropriated in the following proportions from the following trust funds:
(A) 60 percent from the Federal Hospital Insurance Trust Fund (established under
(B) 40 percent from the Federal Supplementary Medical Insurance Trust Fund (established under
(3) Allocations
(A) For each fiscal year, of the amounts transferred or otherwise appropriated to carry out this section, the Secretary shall reserve appropriate amounts for each of the purposes specified in clauses (i) through (iv) of subparagraph (B).
(B) The purposes referred to in subparagraph (A) are—
(i) the development of guidelines, standards, performance measures, and review criteria;
(ii) research and evaluation;
(iii) data-base standards and development; and
(iv) education and information dissemination.
(Aug. 14, 1935, ch. 531, title XI, §1142, as added
Editorial Notes
References in Text
Codification
Subsec. (h) of this section, which required the Secretary to report biennially to Congress on the progress of the activities under this section during the preceding 2 fiscal years, including the impact of such activities on medical care (particularly medical care for individuals receiving benefits under subchapter XVIII of this chapter), terminated, effective May 15, 2000, pursuant to section 3003 of
Another section 1142 of act Aug. 14, 1935, was renumbered section 1143 by
Amendments
2003—Subsec. (b)(3).
1999—Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
AHCPR Study on Effect of Credentialing of Technologists and Sonographers on Quality of Ultrasound
Report on Linkage of Public and Private Research Related Data
1 See References in Text note below.
2 So in original. Probably should be "subparagraph".
§1320b–13. Social security account statements
(a) Provision upon request
(1) Beginning not later than October 1, 1990, the Commissioner of Social Security shall provide upon the request of an eligible individual a social security account statement (hereinafter referred to as the "statement").
(2) Each statement shall contain—
(A) the amount of wages paid to and self-employment income derived by the eligible individual as shown by the records of the Commissioner at the date of the request;
(B) an estimate of the aggregate of the employer, employee, and self-employment contributions of the eligible individual for old-age, survivors, and disability insurance as shown by the records of the Commissioner on the date of the request;
(C) a separate estimate of the aggregate of the employer, employee, and self-employment contributions of the eligible individual for hospital insurance as shown by the records of the Commissioner on the date of the request;
(D) an estimate of the potential monthly retirement, disability, survivor, and auxiliary benefits payable on the eligible individual's account together with a description of the benefits payable under the medicare program of subchapter XVIII; and
(E) in the case of an eligible individual described in paragraph (3)(C)(ii), an explanation, in language calculated to be understood by the average eligible individual, of the operation of the provisions under
(3) For purposes of this section, the term "eligible individual" means an individual—
(A) who has a social security account number,
(B) who has attained age 25 or over, and
(C)(i) who has wages or net earnings from self-employment, or (ii) with respect to whom the Commissioner has information that the pattern of wages or self-employment income indicate a likelihood of noncovered employment.
(b) Notice to eligible individuals
The Commissioner shall, to the maximum extent practicable, take such steps as are necessary to assure that eligible individuals are informed of the availability of the statement described in subsection (a).
(c) Mandatory provision of statements
(1) By not later than September 30, 1995, the Commissioner shall provide a statement to each eligible individual who has attained age 60 by October 1, 1994, and who is not receiving benefits under subchapter II and for whom a current mailing address can be determined through such methods as the Commissioner determines to be appropriate. In fiscal years 1995 through 1999 the Commissioner shall provide a statement to each eligible individual who attains age 60 in such fiscal years and who is not receiving benefits under subchapter II and for whom a current mailing address can be determined through such methods as the Commissioner determines to be appropriate. The Commissioner shall provide with each statement to an eligible individual notice that such statement is updated annually and is available upon request.
(2) Beginning not later than October 1, 1999, the Commissioner shall provide a statement on an annual basis to each eligible individual who is not receiving benefits under subchapter II and for whom a mailing address can be determined through such methods as the Commissioner determines to be appropriate. With respect to statements provided to eligible individuals who have not attained age 50, such statements need not include estimates of monthly retirement benefits. However, if such statements provided to eligible individuals who have not attained age 50 do not include estimates of retirement benefit amounts, such statements shall include a description of the benefits (including auxiliary benefits) that are available upon retirement.
(d) Disclosure to governmental employees of effect of noncovered employment
(1) In the case of any individual commencing employment on or after January 1, 2005, in any agency or instrumentality of any State (or political subdivision thereof, as defined in
(2) The written notice provided to an individual pursuant to paragraph (1) shall include a form which, upon completion and signature by the individual, would constitute certification by the individual of receipt of the notice. The agency or instrumentality providing the notice to the individual shall require that the form be completed and signed by the individual and submitted to the agency or instrumentality and to the pension, annuity, retirement, or similar fund or system established by the governmental entity involved responsible for paying the monthly periodic payments or benefits, before commencement of service with the agency or instrumentality.
(Aug. 14, 1935, ch. 531, title XI, §1143, formerly §1142, as added
Editorial Notes
Amendments
2004—Subsec. (a)(1).
Subsec. (a)(2)(A) to (C).
Subsec. (a)(2)(E).
Subsec. (a)(3).
Subsec. (a)(3)(A), (B).
Subsec. (a)(3)(C).
Subsecs. (b), (c).
Subsec. (d).
1997—Subsec. (a)(2)(B), (C).
1990—Subsec. (c)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
§1320b–14. Outreach efforts to increase awareness of the availability of medicare cost-sharing and subsidies for low-income individuals under subchapter XVIII
(a) Outreach
(1) In general
The Commissioner of Social Security (in this section referred to as the "Commissioner") shall conduct outreach efforts to—
(A) identify individuals entitled to benefits under the medicare program under subchapter XVIII who may be eligible for medical assistance for payment of the cost of medicare cost-sharing under the medicaid program pursuant to
(B) notify such individuals of the availability of such medical assistance, program, and subsidies under such sections.
(2) Content of notice
Any notice furnished under paragraph (1) shall state that eligibility for medicare cost-sharing assistance, the transitional assistance under
(A) the individual providing to the State information about income and resources (in the case of an individual residing in a State that imposes an assets test for eligibility for medicare cost-sharing under the medicaid program); and
(B) meeting the applicable eligibility criteria.
(b) Coordination with States
(1) In general
In conducting the outreach efforts under this section, the Commissioner shall—
(A) furnish the agency of each State responsible for the administration of the medicaid program and any other appropriate State agency with information consisting of the name and address of individuals residing in the State that the Commissioner determines may be eligible for medical assistance for payment of the cost of medicare cost-sharing under the medicaid program pursuant to
(B) update any such information not less frequently than once per year.
(2) Information in periodic updates
The periodic updates described in paragraph (1)(B) shall include information on individuals who are or may be eligible for the medical assistance, program, and subsidies described in paragraph (1)(A) because such individuals have experienced reductions in benefits under subchapter II.
(c) Assistance with Medicare Savings Program and low-income subsidy program applications
(1) Distribution of applications and information to individuals who are potentially eligible for low-income subsidy program
For each individual who submits an application for low-income subsidies under
(A) Provide information describing the low-income subsidy program under
(B) Provide an application for enrollment under such low-income subsidy program (if not already received by the Commissioner).
(C) In accordance with paragraph (3), transmit data from such an application for purposes of initiating an application for benefits under the Medicare Savings Program.
(D) Provide information on how the individual may obtain assistance in completing such application and an application under the Medicare Savings Program, including information on how the individual may contact the State health insurance assistance program (SHIP).
(E) Make the application described in subparagraph (B) and the information described in subparagraphs (A) and (D) available at local offices of the Social Security Administration.
(2) Training personnel in explaining benefit programs and assisting in completing LIS application
The Commissioner shall provide training to those employees of the Social Security Administration who are involved in receiving applications for benefits described in paragraph (1)(B) in order that they may promote beneficiary understanding of the low-income subsidy program and the Medicare Savings Program in order to increase participation in these programs. Such employees shall provide assistance in completing an application described in paragraph (1)(B) upon request.
(3) Transmittal of data to States
Beginning on January 1, 2010, with the consent of an individual completing an application for benefits described in paragraph (1)(B), the Commissioner shall electronically transmit to the appropriate State Medicaid agency data from such application, as determined by the Commissioner, which transmittal shall initiate an application of the individual for benefits under the Medicare Savings Program with the State Medicaid agency. In order to ensure that such data transmittal provides effective assistance for purposes of State adjudication of applications for benefits under the Medicare Savings Program, the Commissioner shall consult with the Secretary, after the Secretary has consulted with the States, regarding the content, form, frequency, and manner in which data (on a uniform basis for all States) shall be transmitted under this subparagraph.
(4) Coordination with outreach
The Commissioner shall coordinate outreach activities under this subsection in connection with the low-income subsidy program and the Medicare Savings Program.
(5) Reimbursement of Social Security Administration administrative costs
(A) Initial Medicare Savings Program costs; additional low-income subsidy costs
(i) Initial Medicare Savings Program costs
There are hereby appropriated to the Commissioner to carry out this subsection, out of any funds in the Treasury not otherwise appropriated, $24,100,000. The amount appropriated under ths 2 clause shall be available on October 1, 2008, and shall remain available until expended.
(ii) Additional amount for low-income subsidy activities
There are hereby appropriated to the Commissioner, out of any funds in the Treasury not otherwise appropriated, $24,800,000 for fiscal year 2009 to carry out low-income subsidy activities under
(B) Subsequent funding under agreements
(i) In general
Effective for fiscal years beginning on or after October 1, 2010, the Commissioner and the Secretary shall enter into an agreement which shall provide funding (subject to the amount appropriated under clause (ii)) to cover the administrative costs of the Commissioner's activities under this subsection. Such agreement shall—
(I) provide funds to the Commissioner for the full cost of the Social Security Administration's work related to the Medicare Savings Program required under this section;
(II) provide such funding quarterly in advance of the applicable quarter based on estimating methodology agreed to by the Commissioner and the Secretary; and
(III) require an annual accounting and reconciliation of the actual costs incurred and funds provided under this subsection.
(ii) Appropriation
There are hereby appropriated to the Secretary solely for the purpose of providing payments to the Commissioner pursuant to an agreement specified in clause (i) that is in effect, out of any funds in the Treasury not otherwise appropriated, not more than $3,000,000 for fiscal year 2011 and each fiscal year thereafter.
(C) Limitation
In no case shall funds from the Social Security Administration's Limitation on Administrative Expenses be used to carry out activities related to the Medicare Savings Program. For fiscal years beginning on or after October 1, 2010, no such activities shall be undertaken by the Social Security Administration unless the agreement specified in subparagraph (B) is in effect and full funding has been provided to the Commissioner as specified in such subparagraph.
(6) GAO analysis and report
(A) Analysis
The Comptroller General of the United States shall prepare an analysis of the impact of this subsection—
(i) in increasing participation in the Medicare Savings Program, and
(ii) on States and the Social Security Administration.
(B) Report
Not later than January 1, 2012, the Comptroller General shall submit to Congress, the Commissioner, and the Secretary a report on the analysis conducted under subparagraph (A).
(7) Medicare Savings Program defined
For purposes of this subsection, the term "Medicare Savings Program" means the program of medical assistance for payment of the cost of medicare cost-sharing under the Medicaid program pursuant to
(Aug. 14, 1935, ch. 531, title XI, §1144, as added
Editorial Notes
Prior Provisions
A prior section 1320b–14, act Aug. 14, 1935, ch. 531, title XI, §1144, as added
Amendments
2008—Subsec. (c).
2003—
Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsec. (a)(2)(A).
Subsec. (b)(1)(A).
Subsec. (b)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Effective Date
GAO Report
1 So in original. Probably should be followed by a comma.
2 So in original. Probably should be "this".
§1320b–15. Protection of social security and medicare trust funds
(a) In general
No officer or employee of the United States shall—
(1) delay the deposit of any amount into (or delay the credit of any amount to) any Federal fund or otherwise vary from the normal terms, procedures, or timing for making such deposits or credits,
(2) refrain from the investment in public debt obligations of amounts in any Federal fund, or
(3) redeem prior to maturity amounts in any Federal fund which are invested in public debt obligations for any purpose other than the payment of benefits or administrative expenses from such Federal fund.
(b) "Public debt obligation" defined
For purposes of this section, the term "public debt obligation" means any obligation subject to the public debt limit established under
(c) "Federal fund" defined
For purposes of this section, the term "Federal fund" means—
(1) the Federal Old-Age and Survivors Insurance Trust Fund;
(2) the Federal Disability Insurance Trust Fund;
(3) the Federal Hospital Insurance Trust Fund; and
(4) the Federal Supplementary Medical Insurance Trust Fund.
(Aug. 14, 1935, ch. 531, title XI, §1145, as added
Statutory Notes and Related Subsidiaries
Effective Date
§1320b–16. Public disclosure of certain information on hospital financial interest and referral patterns
The Secretary shall make available to the public, in a form and manner specified by the Secretary, information disclosed to the Secretary pursuant to
(Aug. 14, 1935, ch. 531, title XI, §1146, as added
Statutory Notes and Related Subsidiaries
Effective Date
§1320b–17. Cross-program recovery of overpayments from benefits
(a) In general
Subject to subsection (b), whenever the Commissioner of Social Security determines that more than the correct amount of any payment has been made to a person under a program described in subsection (e), the Commissioner of Social Security may recover the amount incorrectly paid by decreasing any amount which is payable to such person under any other program specified in that subsection.
(b) Limitation applicable to current benefits
(1) In general
In carrying out subsection (a), the Commissioner of Social Security may not decrease the monthly amount payable to an individual under a program described in subsection (e) that is paid when regularly due—
(A) in the case of benefits under subchapter II or VIII, by more than 10 percent of the amount of the benefit payable to the person for that month under such subchapter; and
(B) in the case of benefits under subchapter XVI, by an amount greater than the lesser of—
(i) the amount of the benefit payable to the person for that month; or
(ii) an amount equal to 10 percent of the person's income for that month (including such monthly benefit but excluding payments under subchapter II when recovery is also made from subchapter II payments and excluding income excluded pursuant to
(2) Exception
Paragraph (1) shall not apply if—
(A) the person or the spouse of the person was involved in willful misrepresentation or concealment of material information in connection with the amount incorrectly paid; or
(B) the person so requests.
(c) No effect on eligibility or benefit amount under subchapter VIII or XVI
In any case in which the Commissioner of Social Security takes action in accordance with subsection (a) to recover an amount incorrectly paid to any person, neither that person, nor (with respect to the program described in subsection (e)(3)) any individual whose eligibility for benefits under such program or whose amount of such benefits, is determined by considering any part of that person's income, shall, as a result of such action—
(1) become eligible for benefits under the program described in paragraph (2) or (3) of subsection (e); or
(2) if such person or individual is otherwise so eligible, become eligible for increased benefits under such program.
(d) Inapplicability of prohibition against assessment and legal process
(e) Programs described
The programs described in this subsection are the following:
(1) The old-age, survivors, and disability insurance benefits program under subchapter II.
(2) The special benefits for certain World War II veterans program under subchapter VIII.
(3) The supplemental security income benefits program under subchapter XVI (including, for purposes of this section, State supplementary payments paid by the Commissioner pursuant to an agreement under
(Aug. 14, 1935, ch. 531, title XI, §1147, as added
Editorial Notes
References in Text
Section 212(b) of
Amendments
2004—
1999—
Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Amendment by
Effective Date
Section effective Oct. 28, 1998, and applicable to amounts incorrectly paid which remain outstanding on or after such date, see section 8(c) of
§1320b–18. Repealed. Pub. L. 108–203, title II, §210(b)(3), Mar. 2, 2004, 118 Stat. 517
Section, act Aug. 14, 1935, ch. 531, title XI, §1147A, as added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective Mar. 2, 2004, and effective with respect to overpayments under subchapters II, VIII, and XVI of this chapter that are outstanding on or after such date, see section 210(c) of
§1320b–19. The Ticket to Work and Self-Sufficiency Program
(a) In general
The Commissioner shall establish a Ticket to Work and Self-Sufficiency Program, under which a disabled beneficiary may use a ticket to work and self-sufficiency issued by the Commissioner in accordance with this section to obtain employment services, vocational rehabilitation services, or other support services from an employment network which is of the beneficiary's choice and which is willing to provide such services to such beneficiary.
(b) Ticket system
(1) Distribution of tickets
The Commissioner may issue a ticket to work and self-sufficiency to disabled beneficiaries for participation in the Program.
(2) Assignment of tickets
A disabled beneficiary holding a ticket to work and self-sufficiency may assign the ticket to any employment network of the beneficiary's choice which is serving under the Program and is willing to accept the assignment.
(3) Ticket terms
A ticket issued under paragraph (1) shall consist of a document which evidences the Commissioner's agreement to pay (as provided in paragraph (4)) an employment network, which is serving under the Program and to which such ticket is assigned by the beneficiary, for such employment services, vocational rehabilitation services, and other support services as the employment network may provide to the beneficiary.
(4) Payments to employment networks
The Commissioner shall pay an employment network under the Program in accordance with the outcome payment system under subsection (h)(2) or under the outcome-milestone payment system under subsection (h)(3) (whichever is elected pursuant to subsection (h)(1)). An employment network may not request or receive compensation for such services from the beneficiary.
(c) State participation
(1) In general
Each State agency administering or supervising the administration of the State plan approved under title I of the Rehabilitation Act of 1973 (
(2) Effect of participation by State agency
(A) State agencies participating
In any case in which a State agency described in paragraph (1) elects under that paragraph to participate in the Program, the employment services, vocational rehabilitation services, and other support services which, upon assignment of tickets to work and self-sufficiency, are provided to disabled beneficiaries by the State agency acting as an employment network shall be governed by plans for vocational rehabilitation services approved under title I of the Rehabilitation Act of 1973 (
(B) State agencies administering maternal and child health services programs
Subparagraph (A) shall not apply with respect to any State agency administering a program under subchapter V of this chapter.
(3) Agreements between State agencies and employment networks
State agencies and employment networks shall enter into agreements regarding the conditions under which services will be provided when an individual is referred by an employment network to a State agency for services. The Commissioner shall establish by regulations the timeframe within which such agreements must be entered into and the mechanisms for dispute resolution between State agencies and employment networks with respect to such agreements.
(d) Responsibilities of the Commissioner
(1) Selection and qualifications of program managers
The Commissioner shall enter into agreements with 1 or more organizations in the private or public sector for service as a program manager to assist the Commissioner in administering the Program. Any such program manager shall be selected by means of a competitive bidding process, from among organizations in the private or public sector with available expertise and experience in the field of vocational rehabilitation or employment services.
(2) Tenure, renewal, and early termination
Each agreement entered into under paragraph (1) shall provide for early termination upon failure to meet performance standards which shall be specified in the agreement and which shall be weighted to take into account any performance in prior terms. Such performance standards shall include—
(A) measures for ease of access by beneficiaries to services; and
(B) measures for determining the extent to which failures in obtaining services for beneficiaries fall within acceptable parameters, as determined by the Commissioner.
(3) Preclusion from direct participation in delivery of services in own service area
Agreements under paragraph (1) shall preclude—
(A) direct participation by a program manager in the delivery of employment services, vocational rehabilitation services, or other support services to beneficiaries in the service area covered by the program manager's agreement; and
(B) the holding by a program manager of a financial interest in an employment network or service provider which provides services in a geographic area covered under the program manager's agreement.
(4) Selection of employment networks
(A) In general
The Commissioner shall select and enter into agreements with employment networks for service under the Program. Such employment networks shall be in addition to State agencies serving as employment networks pursuant to elections under subsection (c).
(B) Alternate participants
In any State where the Program is being implemented, the Commissioner shall enter into an agreement with any alternate participant that is operating under the authority of
(5) Termination of agreements with employment networks
The Commissioner shall terminate agreements with employment networks for inadequate performance, as determined by the Commissioner.
(6) Quality assurance
The Commissioner shall provide for such periodic reviews as are necessary to provide for effective quality assurance in the provision of services by employment networks. The Commissioner shall solicit and consider the views of consumers and the program manager under which the employment networks serve and shall consult with providers of services to develop performance measurements. The Commissioner shall ensure that the results of the periodic reviews are made available to beneficiaries who are prospective service recipients as they select employment networks. The Commissioner shall ensure that the periodic surveys of beneficiaries receiving services under the Program are designed to measure customer service satisfaction.
(7) Dispute resolution
The Commissioner shall provide for a mechanism for resolving disputes between beneficiaries and employment networks, between program managers and employment networks, and between program managers and providers of services. The Commissioner shall afford a party to such a dispute a reasonable opportunity for a full and fair review of the matter in dispute.
(e) Program managers
(1) In general
A program manager shall conduct tasks appropriate to assist the Commissioner in carrying out the Commissioner's duties in administering the Program.
(2) Recruitment of employment networks
A program manager shall recruit, and recommend for selection by the Commissioner, employment networks for service under the Program. The program manager shall carry out such recruitment and provide such recommendations, and shall monitor all employment networks serving in the Program in the geographic area covered under the program manager's agreement, to the extent necessary and appropriate to ensure that adequate choices of services are made available to beneficiaries. Employment networks may serve under the Program only pursuant to an agreement entered into with the Commissioner under the Program incorporating the applicable provisions of this section and regulations thereunder, and the program manager shall provide and maintain assurances to the Commissioner that payment by the Commissioner to employment networks pursuant to this section is warranted based on compliance by such employment networks with the terms of such agreement and this section. The program manager shall not impose numerical limits on the number of employment networks to be recommended pursuant to this paragraph.
(3) Facilitation of access by beneficiaries to employment networks
A program manager shall facilitate access by beneficiaries to employment networks. The program manager shall ensure that each beneficiary is allowed changes in employment networks without being deemed to have rejected services under the Program. When such a change occurs, the program manager shall reassign the ticket based on the choice of the beneficiary. Upon the request of the employment network, the program manager shall make a determination of the allocation of the outcome or milestone-outcome payments based on the services provided by each employment network. The program manager shall establish and maintain lists of employment networks available to beneficiaries and shall make such lists generally available to the public. The program manager shall ensure that all information provided to disabled beneficiaries pursuant to this paragraph is provided in accessible formats.
(4) Ensuring availability of adequate services
The program manager shall ensure that employment services, vocational rehabilitation services, and other support services are provided to beneficiaries throughout the geographic area covered under the program manager's agreement, including rural areas.
(5) Reasonable access to services
The program manager shall take such measures as are necessary to ensure that sufficient employment networks are available and that each beneficiary receiving services under the Program has reasonable access to employment services, vocational rehabilitation services, and other support services. Services provided under the Program may include case management, work incentives planning, supported employment, career planning, career plan development, vocational assessment, job training, placement, follow-up services, and such other services as may be specified by the Commissioner under the Program. The program manager shall ensure that such services are available in each service area.
(f) Employment networks
(1) Qualifications for employment networks
(A) In general
Each employment network serving under the Program shall consist of an agency or instrumentality of a State (or a political subdivision thereof) or a private entity, that assumes responsibility for the coordination and delivery of services under the Program to individuals assigning to the employment network tickets to work and self-sufficiency issued under subsection (b).
(B) One-stop delivery systems
An employment network serving under the Program may consist of a one-stop delivery system established under
(C) Compliance with selection criteria
No employment network may serve under the Program unless it meets and maintains compliance with both general selection criteria (such as professional and educational qualifications, where applicable) and specific selection criteria (such as substantial expertise and experience in providing relevant employment services and supports).
(D) Single or associated providers allowed
An employment network shall consist of either a single provider of such services or of an association of such providers organized so as to combine their resources into a single entity. An employment network may meet the requirements of subsection (e)(4) by providing services directly, or by entering into agreements with other individuals or entities providing appropriate employment services, vocational rehabilitation services, or other support services.
(2) Requirements relating to provision of services
Each employment network serving under the Program shall be required under the terms of its agreement with the Commissioner to—
(A) serve prescribed service areas; and
(B) take such measures as are necessary to ensure that employment services, vocational rehabilitation services, and other support services provided under the Program by, or under agreements entered into with, the employment network are provided under appropriate individual work plans that meet the requirements of subsection (g).
(3) Annual financial reporting
Each employment network shall meet financial reporting requirements as prescribed by the Commissioner.
(4) Periodic outcomes reporting
Each employment network shall prepare periodic reports, on at least an annual basis, itemizing for the covered period specific outcomes achieved with respect to specific services provided by the employment network. Such reports shall conform to a national model prescribed under this section. Each employment network shall provide a copy of the latest report issued by the employment network pursuant to this paragraph to each beneficiary upon enrollment under the Program for services to be received through such employment network. Upon issuance of each report to each beneficiary, a copy of the report shall be maintained in the files of the employment network. The program manager shall ensure that copies of all such reports issued under this paragraph are made available to the public under reasonable terms.
(g) Individual work plans
(1) Requirements
Each employment network shall—
(A) take such measures as are necessary to ensure that employment services, vocational rehabilitation services, and other support services provided under the Program by, or under agreements entered into with, the employment network are provided under appropriate individual work plans that meet the requirements of subparagraph (C);
(B) develop and implement each such individual work plan, in partnership with each beneficiary receiving such services, in a manner that affords such beneficiary the opportunity to exercise informed choice in selecting an employment goal and specific services needed to achieve that employment goal;
(C) ensure that each individual work plan includes at least—
(i) a statement of the vocational goal developed with the beneficiary, including, as appropriate, goals for earnings and job advancement;
(ii) a statement of the services and supports that have been deemed necessary for the beneficiary to accomplish that goal;
(iii) a statement of any terms and conditions related to the provision of such services and supports; and
(iv) a statement of understanding regarding the beneficiary's rights under the Program (such as the right to retrieve the ticket to work and self-sufficiency if the beneficiary is dissatisfied with the services being provided by the employment network) and remedies available to the individual, including information on the availability of advocacy services and assistance in resolving disputes through the State grant program authorized under
(D) provide a beneficiary the opportunity to amend the individual work plan if a change in circumstances necessitates a change in the plan; and
(E) make each beneficiary's individual work plan available to the beneficiary in, as appropriate, an accessible format chosen by the beneficiary.
An individual work plan established pursuant to this subsection shall be treated, for purposes of section 51(d)(6)(B)(i) of the Internal Revenue Code of 1986, as an individualized written plan for employment under a State plan for vocational rehabilitation services approved under the Rehabilitation Act of 1973 [
(2) Effective upon written approval
A beneficiary's individual work plan shall take effect upon written approval by the beneficiary or a representative of the beneficiary and a representative of the employment network that, in providing such written approval, acknowledges assignment of the beneficiary's ticket to work and self-sufficiency.
(h) Employment network payment systems
(1) Election of payment system by employment networks
(A) In general
The Program shall provide for payment authorized by the Commissioner to employment networks under either an outcome payment system or an outcome-milestone payment system. Each employment network shall elect which payment system will be utilized by the employment network, and, for such period of time as such election remains in effect, the payment system so elected shall be utilized exclusively in connection with such employment network (except as provided in subparagraph (B)).
(B) No change in method of payment for beneficiaries with tickets already assigned to the employment networks
Any election of a payment system by an employment network that would result in a change in the method of payment to the employment network for services provided to a beneficiary who is receiving services from the employment network at the time of the election shall not be effective with respect to payment for services provided to that beneficiary and the method of payment previously selected shall continue to apply with respect to such services.
(2) Outcome payment system
(A) In general
The outcome payment system shall consist of a payment structure governing employment networks electing such system under paragraph (1)(A) which meets the requirements of this paragraph.
(B) Payments made during outcome payment period
The outcome payment system shall provide for a schedule of payments to an employment network, in connection with each individual who is a beneficiary, for each month, during the individual's outcome payment period, for which benefits (described in paragraphs (3) and (4) of subsection (k)) are not payable to such individual because of work or earnings.
(C) Computation of payments to employment network
The payment schedule of the outcome payment system shall be designed so that—
(i) the payment for each month during the outcome payment period for which benefits (described in paragraphs (3) and (4) of subsection (k)) are not payable is equal to a fixed percentage of the payment calculation base for the calendar year in which such month occurs; and
(ii) such fixed percentage is set at a percentage which does not exceed 40 percent.
(3) Outcome-milestone payment system
(A) In general
The outcome-milestone payment system shall consist of a payment structure governing employment networks electing such system under paragraph (1)(A) which meets the requirements of this paragraph.
(B) Early payments upon attainment of milestones in advance of outcome payment periods
The outcome-milestone payment system shall provide for 1 or more milestones, with respect to beneficiaries receiving services from an employment network under the Program, that are directed toward the goal of permanent employment. Such milestones shall form a part of a payment structure that provides, in addition to payments made during outcome payment periods, payments made prior to outcome payment periods in amounts based on the attainment of such milestones.
(C) Limitation on total payments to employment network
The payment schedule of the outcome milestone payment system shall be designed so that the total of the payments to the employment network with respect to each beneficiary is less than, on a net present value basis (using an interest rate determined by the Commissioner that appropriately reflects the cost of funds faced by providers), the total amount to which payments to the employment network with respect to the beneficiary would be limited if the employment network were paid under the outcome payment system.
(4) Definitions
In this subsection:
(A) Payment calculation base
The term "payment calculation base" means, for any calendar year—
(i) in connection with a title II disability beneficiary, the average disability insurance benefit payable under
(ii) in connection with a title XVI disability beneficiary (who is not concurrently a title II disability beneficiary), the average payment of supplemental security income benefits based on disability payable under subchapter XVI (excluding State supplementation) for months during the preceding calendar year to all beneficiaries who have attained 18 years of age but have not attained 65 years of age.
(B) Outcome payment period
The term "outcome payment period" means, in connection with any individual who had assigned a ticket to work and self-sufficiency to an employment network under the Program, a period—
(i) beginning with the first month, ending after the date on which such ticket was assigned to the employment network, for which benefits (described in paragraphs (3) and (4) of subsection (k)) are not payable to such individual by reason of engagement in substantial gainful activity or by reason of earnings from work activity; and
(ii) ending with the 60th month (consecutive or otherwise), ending after such date, for which such benefits are not payable to such individual by reason of engagement in substantial gainful activity or by reason of earnings from work activity.
(5) Periodic review and alterations of prescribed schedules
(A) Percentages and periods
The Commissioner shall periodically review the percentage specified in paragraph (2)(C), the total payments permissible under paragraph (3)(C), and the period of time specified in paragraph (4)(B) to determine whether such percentages, such permissible payments, and such period provide an adequate incentive for employment networks to assist beneficiaries to enter the workforce, while providing for appropriate economies. The Commissioner may alter such percentage, such total permissible payments, or such period of time to the extent that the Commissioner determines, on the basis of the Commissioner's review under this paragraph, that such an alteration would better provide the incentive and economies described in the preceding sentence.
(B) Number and amounts of milestone payments
The Commissioner shall periodically review the number and amounts of milestone payments established by the Commissioner pursuant to this section to determine whether they provide an adequate incentive for employment networks to assist beneficiaries to enter the workforce, taking into account information provided to the Commissioner by program managers, the Ticket to Work and Work Incentives Advisory Panel established by section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, and other reliable sources. The Commissioner may from time to time alter the number and amounts of milestone payments initially established by the Commissioner pursuant to this section to the extent that the Commissioner determines that such an alteration would allow an adequate incentive for employment networks to assist beneficiaries to enter the workforce. Such alteration shall be based on information provided to the Commissioner by program managers, the Ticket to Work and Work Incentives Advisory Panel established by section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, or other reliable sources.
(C) Report on the adequacy of incentives
The Commissioner shall submit to the Congress not later than 36 months after December 17, 1999, a report with recommendations for a method or methods to adjust payment rates under subparagraphs (A) and (B), that would ensure adequate incentives for the provision of services by employment networks of—
(i) individuals with a need for ongoing support and services;
(ii) individuals with a need for high-cost accommodations;
(iii) individuals who earn a subminimum wage; and
(iv) individuals who work and receive partial cash benefits.
The Commissioner shall consult with the Ticket to Work and Work Incentives Advisory Panel established under section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999 during the development and evaluation of the study. The Commissioner shall implement the necessary adjusted payment rates prior to full implementation of the Ticket to Work and Self-Sufficiency Program.
(i) Suspension of disability reviews
During any period for which an individual is using, as defined by the Commissioner, a ticket to work and self-sufficiency issued under this section, the Commissioner (and any applicable State agency) may not initiate a continuing disability review or other review under
(j) Authorizations
(1) Payments to employment networks
(A) Title II disability beneficiaries
There are authorized to be transferred from the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund each fiscal year such sums as may be necessary to make payments to employment networks under this section. Money paid from the Trust Funds under this section with respect to title II disability beneficiaries who are entitled to benefits under
(B) Title XVI disability beneficiaries
Amounts authorized to be appropriated to the Social Security Administration under
(2) Administrative expenses
The costs of administering this section (other than payments to employment networks) shall be paid from amounts made available for the administration of subchapter II and amounts made available for the administration of subchapter XVI, and shall be allocated among such amounts as appropriate.
(k) Definitions
In this section:
(1) Commissioner
The term "Commissioner" means the Commissioner of Social Security.
(2) Disabled beneficiary
The term "disabled beneficiary" means a title II disability beneficiary or a title XVI disability beneficiary.
(3) Title II disability beneficiary
The term "title II disability beneficiary" means an individual entitled to disability insurance benefits under
(4) Title XVI disability beneficiary
The term "title XVI disability beneficiary" means an individual eligible for supplemental security income benefits under subchapter XVI on the basis of blindness (within the meaning of
(5) Supplemental security income benefit
The term "supplemental security income benefit under subchapter XVI" means a cash benefit under
(l) Regulations
Not later than 1 year after December 17, 1999, the Commissioner shall prescribe such regulations as are necessary to carry out the provisions of this section.
(Aug. 14, 1935, ch. 531, title XI, §1148, as added
Editorial Notes
References in Text
The Rehabilitation Act of 1973, referred to in subsecs. (c)(1), (2)(A) and (g)(1), is
The Internal Revenue Code of 1986, referred to in subsec. (g)(1), is classified generally to Title 26, Internal Revenue Code.
Section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, referred to in subsec. (h)(5)(B), (C), is section 101(f) of
Amendments
2014—Subsec. (f)(1)(B).
2004—Subsec. (g)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2004 Amendment
Effective Date
Regulations
"(1)
"(2)
"(A) the form and manner in which tickets to work and self-sufficiency may be distributed to beneficiaries pursuant to section 1148(b)(1) of the Social Security Act [
"(B) the format and wording of such tickets, which shall incorporate by reference any contractual terms governing service by employment networks under the Program;
"(C) the form and manner in which State agencies may elect participation in the Ticket to Work and Self-Sufficiency Program pursuant to section 1148(c)(1) of such Act and provision for periodic opportunities for exercising such elections;
"(D) the status of State agencies under section 1148(c)(1) of such Act at the time that State agencies exercise elections under that section;
"(E) the terms of agreements to be entered into with program managers pursuant to section 1148(d) of such Act, including—
"(i) the terms by which program managers are precluded from direct participation in the delivery of services pursuant to section 1148(d)(3) of such Act;
"(ii) standards which must be met by quality assurance measures referred to in paragraph (6) of section 1148(d) of such Act and methods of recruitment of employment networks utilized pursuant to paragraph (2) of section 1148(e) of such Act; and
"(iii) the format under which dispute resolution will operate under section 1148(d)(7) of such Act;
"(F) the terms of agreements to be entered into with employment networks pursuant to section 1148(d)(4) of such Act, including—
"(i) the manner in which service areas are specified pursuant to section 1148(f)(2)(A) of such Act;
"(ii) the general selection criteria and the specific selection criteria which are applicable to employment networks under section 1148(f)(1)(C) of such Act in selecting service providers;
"(iii) specific requirements relating to annual financial reporting by employment networks pursuant to section 1148(f)(3) of such Act; and
"(iv) the national model to which periodic outcomes reporting by employment networks must conform under section 1148(f)(4) of such Act;
"(G) standards which must be met by individual work plans pursuant to section 1148(g) of such Act;
"(H) standards which must be met by payment systems required under section 1148(h) of such Act, including—
"(i) the form and manner in which elections by employment networks of payment systems are to be exercised pursuant to section 1148(h)(1)(A) of such Act;
"(ii) the terms which must be met by an outcome payment system under section 1148(h)(2) of such Act;
"(iii) the terms which must be met by an outcome-milestone payment system under section 1148(h)(3) of such Act;
"(iv) any revision of the percentage specified in paragraph (2)(C) of section 1148(h) of such Act or the period of time specified in paragraph (4)(B) of such section 1148(h) of such Act; and
"(v) annual oversight procedures for such systems; and
"(I) procedures for effective oversight of the Program by the Commissioner of Social Security, including periodic reviews and reporting requirements."
GAO Study Regarding the Ticket to Work and Self-Sufficiency Program
"(a) [sic] GAO
"(1) examines the annual and interim reports issued by States, the Ticket to Work and Work Incentives Advisory Panel established under section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999 [
"(2) assesses the effectiveness of the activities carried out under such program; and
"(3) recommends such legislative or administrative changes as the Comptroller General determines are appropriate to improve the effectiveness of such program."
Findings and Purposes
"(a)
"(1) It is the policy of the United States to provide assistance to individuals with disabilities to lead productive work lives.
"(2) Health care is important to all Americans.
"(3) Health care is particularly important to individuals with disabilities and special health care needs who often cannot afford the insurance available to them through the private market, are uninsurable by the plans available in the private sector, and are at great risk of incurring very high and economically devastating health care costs.
"(4) Americans with significant disabilities often are unable to obtain health care insurance that provides coverage of the services and supports that enable them to live independently and enter or rejoin the workforce. Personal assistance services (such as attendant services, personal assistance with transportation to and from work, reader services, job coaches, and related assistance) remove many of the barriers between significant disability and work. Coverage for such services, as well as for prescription drugs, durable medical equipment, and basic health care are powerful and proven tools for individuals with significant disabilities to obtain and retain employment.
"(5) For individuals with disabilities, the fear of losing health care and related services is one of the greatest barriers keeping the individuals from maximizing their employment, earning potential, and independence.
"(6) Social Security Disability Insurance and Supplemental Security Income beneficiaries risk losing medicare or medicaid coverage that is linked to their cash benefits, a risk that is an equal, or greater, work disincentive than the loss of cash benefits associated with working.
"(7) Individuals with disabilities have greater opportunities for employment than ever before, aided by important public policy initiatives such as the Americans with Disabilities Act of 1990 (
"(8) Despite such historic opportunities and the desire of millions of disability recipients to work and support themselves, fewer than one-half of one percent of Social Security Disability Insurance and Supplemental Security Income beneficiaries leave the disability rolls and return to work.
"(9) In addition to the fear of loss of health care coverage, beneficiaries cite financial disincentives to work and earn income and lack of adequate employment training and placement services as barriers to employment.
"(10) Eliminating such barriers to work by creating financial incentives to work and by providing individuals with disabilities real choice in obtaining the services and technology they need to find, enter, and maintain employment can greatly improve their short and long-term financial independence and personal well-being.
"(11) In addition to the enormous advantages such changes promise for individuals with disabilities, redesigning government programs to help individuals with disabilities return to work may result in significant savings and extend the life of the Social Security Disability Insurance Trust Fund.
"(12) If only an additional one-half of one percent of the current Social Security Disability Insurance and Supplemental Security Income recipients were to cease receiving benefits as a result of employment, the savings to the Social Security Trust Funds and to the Treasury in cash assistance would total $3,500,000,000 over the worklife of such individuals, far exceeding the cost of providing incentives and services needed to assist them in entering work and achieving financial independence to the best of their abilities.
"(b)
"(1) To provide health care and employment preparation and placement services to individuals with disabilities that will enable those individuals to reduce their dependency on cash benefit programs.
"(2) To encourage States to adopt the option of allowing individuals with disabilities to purchase medicaid coverage that is necessary to enable such individuals to maintain employment.
"(3) To provide individuals with disabilities the option of maintaining medicare coverage while working.
"(4) To establish a return to work ticket program that will allow individuals with disabilities to seek the services necessary to obtain and retain employment and reduce their dependency on cash benefit programs."
Graduated Implementation of Program
"(1)
"(2)
"(3)
"(4)
"(A)
"(B)
"(C)
"(i)
"(ii)
"(I) the annual cost (including net cost) of the Program and the annual cost (including net cost) that would have been incurred in the absence of the Program;
"(II) the determinants of return to work, including the characteristics of beneficiaries in receipt of tickets under the Program;
"(III) the types of employment services, vocational rehabilitation services, and other support services furnished to beneficiaries in receipt of tickets under the Program who return to work and to those who do not return to work;
"(IV) the duration of employment services, vocational rehabilitation services, and other support services furnished to beneficiaries in receipt of tickets under the Program who return to work and the duration of such services furnished to those who do not return to work and the cost to employment networks of furnishing such services;
"(V) the employment outcomes, including wages, occupations, benefits, and hours worked, of beneficiaries who return to work after receiving tickets under the Program and those who return to work without receiving such tickets;
"(VI) the characteristics of individuals in possession of tickets under the Program who are not accepted for services and, to the extent reasonably determinable, the reasons for which such beneficiaries were not accepted for services;
"(VII) the characteristics of providers whose services are provided within an employment network under the Program;
"(VIII) the extent (if any) to which employment networks display a greater willingness to provide services to beneficiaries with a range of disabilities;
"(IX) the characteristics (including employment outcomes) of those beneficiaries who receive services under the outcome payment system and of those beneficiaries who receive services under the outcome-milestone payment system;
"(X) measures of satisfaction among beneficiaries in receipt of tickets under the Program; and
"(XI) reasons for (including comments solicited from beneficiaries regarding) their choice not to use their tickets or their inability to return to work despite the use of their tickets.
"(D)
"(5)
"(A)
"(i) the requirement under section 222(a) of the Social Security Act (
"(ii) the authority of the Commissioner under section 222(d)(2) of such Act (
shall apply in such State.
"(B)
Ticket to Work and Work Incentives Advisory Panel
§1320b–20. Work incentives outreach program
(a) Establishment
(1) In general
The Commissioner, in consultation with the Ticket to Work and Work Incentives Advisory Panel established under section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, shall establish a community-based work incentives planning and assistance program for the purpose of disseminating accurate information to disabled beneficiaries on work incentives programs and issues related to such programs.
(2) Grants, cooperative agreements, contracts, and outreach
Under the program established under this section, the Commissioner shall—
(A) establish a competitive program of grants, cooperative agreements, or contracts to provide benefits planning and assistance, including information on the availability of protection and advocacy services, to disabled beneficiaries, including individuals participating in the Ticket to Work and Self-Sufficiency Program established under
(B) conduct directly, or through grants, cooperative agreements, or contracts, ongoing outreach efforts to disabled beneficiaries (and to the families of such beneficiaries) who are potentially eligible to participate in Federal or State work incentive programs that are designed to assist disabled beneficiaries to work, including—
(i) preparing and disseminating information explaining such programs; and
(ii) working in cooperation with other Federal, State, and private agencies and nonprofit organizations that serve disabled beneficiaries, and with agencies and organizations that focus on vocational rehabilitation and work-related training and counseling;
(C) establish a corps of trained, accessible, and responsive work incentives specialists within the Social Security Administration who will specialize in disability work incentives under subchapters II and XVI for the purpose of disseminating accurate information with respect to inquiries and issues relating to work incentives to—
(i) disabled beneficiaries;
(ii) benefit applicants under subchapters II and XVI; and
(iii) individuals or entities awarded grants under subparagraphs 1 (A) or (B); and
(D) provide—
(i) training for work incentives specialists and individuals providing planning assistance described in subparagraph (C); and
(ii) technical assistance to organizations and entities that are designed to encourage disabled beneficiaries to return to work.
(3) Coordination with other programs
The responsibilities of the Commissioner established under this section shall be coordinated with other public and private programs that provide information and assistance regarding rehabilitation services and independent living supports and benefits planning for disabled beneficiaries including the program under
(b) Conditions
(1) Selection of entities
(A) Application
An entity shall submit an application for a grant, cooperative agreement, or contract to provide benefits planning and assistance to the Commissioner at such time, in such manner, and containing such information as the Commissioner may determine is necessary to meet the requirements of this section.
(B) Statewideness
The Commissioner shall ensure that the planning, assistance, and information described in paragraph (2) shall be available on a statewide basis.
(C) Eligibility of States and private organizations
(i) In general
The Commissioner may award a grant, cooperative agreement, or contract under this section to a State or a private agency or organization (other than Social Security Administration Field Offices and the State agency administering the State medicaid program under subchapter XIX, including any agency or entity described in clause (ii), that the Commissioner determines is qualified to provide the planning, assistance, and information described in paragraph (2)).
(ii) Agencies and entities described
The agencies and entities described in this clause are the following:
(I) Any public or private agency or organization (including Centers for Independent Living established under title VII of the Rehabilitation Act of 1973 (
(II) The State agency administering the State program funded under part A of subchapter IV.
(D) Exclusion for conflict of interest
The Commissioner may not award a grant, cooperative agreement, or contract under this section to any entity that the Commissioner determines would have a conflict of interest if the entity were to receive a grant, cooperative agreement, or contract under this section.
(2) Services provided
A recipient of a grant, cooperative agreement, or contract to provide benefits planning and assistance shall select individuals who will act as planners and provide information, guidance, and planning to disabled beneficiaries on the—
(A) availability and interrelation of any Federal or State work incentives programs designed to assist disabled beneficiaries that the individual may be eligible to participate in;
(B) adequacy of any health benefits coverage that may be offered by an employer of the individual and the extent to which other health benefits coverage may be available to the individual; and
(C) availability of protection and advocacy services for disabled beneficiaries and how to access such services.
(3) Amount of grants, cooperative agreements, or contracts
(A) Based on population of disabled beneficiaries
Subject to subparagraph (B), the Commissioner shall award a grant, cooperative agreement, or contract under this section to an entity based on the percentage of the population of the State where the entity is located who are disabled beneficiaries.
(B) Limitations
(i) Per grant
No entity shall receive a grant, cooperative agreement, or contract under this section for a fiscal year that is less than $50,000 or more than $300,000.
(ii) Total amount for all grants, cooperative agreements, and contracts
The total amount of all grants, cooperative agreements, and contracts awarded under this section for a fiscal year may not exceed $23,000,000.
(4) Funding
(A) Allocation of costs
The costs of carrying out this section shall be paid from amounts made available for the administration of subchapter II and amounts made available for the administration of subchapter XVI, and shall be allocated among those amounts as appropriate.
(B) Carryover
An amount not in excess of 10 percent of the total amount obligated through a grant, cooperative agreement, or contract awarded under this section for a fiscal year to a State or a private agency or organization shall remain available for obligation to such State or private agency or organization until the end of the succeeding fiscal year. Any such amount remaining available for obligation during such succeeding fiscal year shall be available for providing benefits planning and assistance only for individuals who are within the caseload of the recipient of the grant, agreement, or contract as of immediately before the beginning of such fiscal year.
(c) Annual report
Each entity awarded a grant, cooperative agreement, or contract under this section shall submit an annual report to the Commissioner on the benefits planning and assistance provided to individuals under such grant, agreement, or contract.
(d) Definitions
In this section:
(1) Commissioner
The term "Commissioner" means the Commissioner of Social Security.
(2) Disabled beneficiary
The term "disabled beneficiary" means an individual—
(A) who is a disabled beneficiary as defined in
(B) who is receiving a cash payment described in
(C) who, pursuant to
(D) who is entitled to benefits under part A of subchapter XVIII of this chapter by reason of the penultimate sentence of
(e) Authorization of appropriations
There are authorized to be appropriated to carry out this section $23,000,000 for each of the fiscal years 2000 through 2011.
(Aug. 14, 1935, ch. 531, title XI, §1149, as added
Editorial Notes
References in Text
Section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, referred to in subsec. (a)(1), is section 101(f) of
The Individuals with Disabilities Education Act, referred to in subsec. (a)(3), is title VI of
The Rehabilitation Act of 1973, referred to in subsec. (b)(1)(C)(ii)(I), is
Section 212 of
Amendments
2014—Subsec. (a)(3).
2010—Subsec. (b)(4).
Subsec. (c).
Subsec. (d).
Subsec. (e).
2009—Subsec. (d).
2004—Subsec. (c)(2).
Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2010 Amendment
Effective Date of 2004 Amendment
1 So in original. Probably should be "subparagraph".
2 See References in Text note below.
§1320b–21. State grants for work incentives assistance to disabled beneficiaries
(a) In general
Subject to subsection (c), the Commissioner may make payments in each State to the protection and advocacy system established pursuant to part C of title I of the Developmental Disabilities Assistance and Bill of Rights Act (
(b) Services provided
Services provided to disabled beneficiaries pursuant to a payment made under this section may include—
(1) information and advice about obtaining vocational rehabilitation and employment services; and
(2) advocacy or other services that a disabled beneficiary may need to secure, maintain, or regain gainful employment.
(c) Application
In order to receive payments under this section, a protection and advocacy system shall submit an application to the Commissioner, at such time, in such form and manner, and accompanied by such information and assurances as the Commissioner may require.
(d) Amount of payments
(1) In general
Subject to the amount appropriated for a fiscal year for making payments under this section, a protection and advocacy system shall not be paid an amount that is less than—
(A) in the case of a protection and advocacy system located in a State (including the District of Columbia and Puerto Rico) other than Guam, American Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands, the greater of—
(i) $100,000; or
(ii) 1/3 of 1 percent of the amount available for payments under this section; and
(B) in the case of a protection and advocacy system located in Guam, American Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands, $50,000.
(2) Inflation adjustment
For each fiscal year in which the total amount appropriated to carry out this section exceeds the total amount appropriated to carry out this section in the preceding fiscal year, the Commissioner shall increase each minimum payment under subparagraphs (A) and (B) of paragraph (1) by a percentage equal to the percentage increase in the total amount so appropriated to carry out this section.
(e) Annual report
Each protection and advocacy system that receives a payment under this section shall submit an annual report to the Commissioner and the Ticket to Work and Work Incentives Advisory Panel established under section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999 on the services provided to individuals by the system.
(f) Funding
(1) Allocation of payments
Payments under this section shall be made from amounts made available for the administration of subchapter II and amounts made available for the administration of subchapter XVI, and shall be allocated among those amounts as appropriate.
(2) Carryover
Any amounts allotted for payment to a protection and advocacy system under this section for a fiscal year shall remain available for payment to or on behalf of the protection and advocacy system until the end of the succeeding fiscal year.
(g) Definitions
In this section:
(1) Commissioner
The term "Commissioner" means the Commissioner of Social Security.
(2) Disabled beneficiary
The term "disabled beneficiary" means an individual—
(A) who is a disabled beneficiary as defined in
(B) who is receiving a cash payment described in
(C) who, pursuant to
(D) who is entitled to benefits under part A of subchapter XVIII of this chapter by reason of the penultimate sentence of
(3) Protection and advocacy system
The term "protection and advocacy system" means a protection and advocacy system established pursuant to part C of title I of the Developmental Disabilities Assistance and Bill of Rights Act (
(h) Authorization of appropriations
There are authorized to be appropriated to carry out this section $7,000,000 for each of the fiscal years 2000 through 2011.
(Aug. 14, 1935, ch. 531, title XI, §1150, as added
Editorial Notes
References in Text
The Developmental Disabilities Assistance and Bill of Rights Act, referred to in subsecs. (a) and (g)(3), is title I of
Section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999, referred to in subsec. (e), is section 101(f) of
Section 212 of
Amendments
2010—Subsec. (h).
2009—Subsec. (h).
2004—Subsec. (b)(2).
Subsec. (g)(2).
Subsec. (h).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
1 See References in Text note below.
§1320b–22. Grants to develop and establish State infrastructures to support working individuals with disabilities
(a) Establishment
(1) In general
The Secretary of Health and Human Services (in this section referred to as the "Secretary") shall award grants described in subsection (b) to States to support the design, establishment, and operation of State infrastructures that provide items and services to support working individuals with disabilities.
(2) Application
In order to be eligible for an award of a grant under this section, a State shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary shall require.
(3) Definition of State
In this section, the term "State" means each of the 50 States, the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.
(b) Grants for infrastructure and outreach
(1) In general
Out of the funds appropriated under subsection (e), the Secretary shall award grants to States to—
(A) support the establishment, implementation, and operation of the State infrastructures described in subsection (a); and
(B) conduct outreach campaigns regarding the existence of such infrastructures.
(2) Eligibility for grants
(A) In general
No State may receive a grant under this subsection unless the State demonstrates to the satisfaction of the Secretary that the State makes personal assistance services available under the State plan under subchapter XIX of this chapter to the extent necessary to enable individuals with disabilities to remain employed, including individuals described in
(B) Definitions
In this section:
(i) Employed
The term "employed" means—
(I) earning at least the applicable minimum wage requirement under
(II) being engaged in a work effort that meets substantial and reasonable threshold criteria for hours of work, wages, or other measures, as defined and approved by the Secretary.
(ii) Personal assistance services
The term "personal assistance services" means a range of services, provided by 1 or more persons, designed to assist an individual with a disability to perform daily activities on and off the job that the individual would typically perform if the individual did not have a disability. Such services shall be designed to increase the individual's control in life and ability to perform everyday activities on or off the job.
(3) Determination of awards
(A) In general
Subject to subparagraph (B), the Secretary shall develop a methodology for awarding grants to States under this section for a fiscal year in a manner that—
(i) rewards States for their efforts in encouraging individuals described in paragraph (2)(A) to be employed; and
(ii) does not provide a State that has not elected to provide medical assistance under subchapter XIX of this chapter to individuals described in
(B) Award limits
(i) Minimum awards
(I) In general
Subject to subclause (II), no State with an approved application under this section shall receive a grant for a fiscal year that is less than $500,000.
(II) Pro rata reductions
If the funds appropriated under subsection (e) for a fiscal year are not sufficient to pay each State with an application approved under this section the minimum amount described in subclause (I), the Secretary shall pay each such State an amount equal to the pro rata share of the amount made available.
(ii) Maximum awards
(I) States that elected optional medicaid eligibility
No State that has an application that has been approved under this section and that has elected to provide medical assistance under subchapter XIX of this chapter to individuals described in
(II) Other States
The Secretary shall determine, consistent with the limit described in subclause (I), a maximum award limit for a grant for a fiscal year for a State that has an application that has been approved under this section but that has not elected to provide medical assistance under subchapter XIX of this chapter to individuals described in
(c) Availability of funds
(1) Funds awarded to States
Funds awarded to a State under a grant made under this section for a fiscal year shall remain available until expended.
(2) Funds not awarded to States
Funds not awarded to States in the fiscal year for which they are appropriated shall remain available in succeeding fiscal years for awarding by the Secretary.
(d) Annual report
A State that is awarded a grant under this section shall submit an annual report to the Secretary on the use of funds provided under the grant. Each report shall include the percentage increase in the number of title II disability beneficiaries, as defined in
(e) Appropriation
(1) In general
Out of any funds in the Treasury not otherwise appropriated, there is appropriated to make grants under this section—
(A) for fiscal year 2001, $20,000,000;
(B) for fiscal year 2002, $25,000,000;
(C) for fiscal year 2003, $30,000,000;
(D) for fiscal year 2004, $35,000,000;
(E) for fiscal year 2005, $40,000,000; and
(F) for each of fiscal years 2006 through 2011, the amount appropriated for the preceding fiscal year increased by the percentage increase (if any) in the Consumer Price Index for All Urban Consumers (United States city average) for the preceding fiscal year.
(2) Budget authority
This subsection constitutes budget authority in advance of appropriations Acts and represents the obligation of the Federal Government to provide for the payment of the amounts appropriated under paragraph (1).
(f) Recommendation
Not later than October 1, 2010, the Secretary, in consultation with the Ticket to Work and Work Incentives Advisory Panel established by section 101(f) of this Act, shall submit a recommendation to the Committee on Commerce of the House of Representatives and the Committee on Finance of the Senate regarding whether the grant program established under this section should be continued after fiscal year 2011.
(
Editorial Notes
References in Text
Section 101(a) of this Act, referred to in subsec. (d), is section 101(a) of the Ticket to Work and Work Incentives Improvement Act of 1999,
Section 101(f) of this Act, referred to in subsec. (f), is section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999,
Codification
Section was enacted as part of the Ticket to Work and Work Incentives Improvement Act of 1999, and not as part of the Social Security Act which comprises this chapter.
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Commerce of House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001.
§1320b–23. Pharmacy benefit managers transparency requirements
(a) Provision of information
A health benefits plan or any entity that provides pharmacy benefits management services on behalf of a health benefits plan (in this section referred to as a "PBM") that manages prescription drug coverage under a contract with—
(1) a PDP sponsor of a prescription drug plan or an MA organization offering an MA–PD plan under part D of subchapter XVIII; or
(2) a qualified health benefits plan offered through an exchange established by a State under
shall provide the information described in subsection (b) to the Secretary and, in the case of a PBM, to the plan with which the PBM is under contract with, at such times, and in such form and manner, as the Secretary shall specify.
(b) Information described
The information described in this subsection is the following with respect to services provided by a health benefits plan or PBM for a contract year:
(1) The percentage of all prescriptions that were provided through retail pharmacies compared to mail order pharmacies, and the percentage of prescriptions for which a generic drug was available and dispensed (generic dispensing rate), by pharmacy type (which includes an independent pharmacy, chain pharmacy, supermarket pharmacy, or mass merchandiser pharmacy that is licensed as a pharmacy by the State and that dispenses medication to the general public), that is paid by the health benefits plan or PBM under the contract.
(2) The aggregate amount, and the type of rebates, discounts, or price concessions (excluding bona fide service fees, which include but are not limited to distribution service fees, inventory management fees, product stocking allowances, and fees associated with administrative services agreements and patient care programs (such as medication compliance programs and patient education programs)) that the PBM negotiates that are attributable to patient utilization under the plan, and the aggregate amount of the rebates, discounts, or price concessions that are passed through to the plan sponsor, and the total number of prescriptions that were dispensed.
(3) The aggregate amount of the difference between the amount the health benefits plan pays the PBM and the amount that the PBM pays retail pharmacies, and mail order pharmacies, and the total number of prescriptions that were dispensed.
(c) Confidentiality
Information disclosed by a health benefits plan or PBM under this section is confidential and shall not be disclosed by the Secretary or by a plan receiving the information, except that the Secretary may disclose the information in a form which does not disclose the identity of a specific PBM, plan, or prices charged for drugs, for the following purposes:
(1) As the Secretary determines to be necessary to carry out this section or part D of subchapter XVIII.
(2) To permit the Comptroller General to review the information provided.
(3) To permit the Director of the Congressional Budget Office to review the information provided.
(4) To States to carry out
(d) Penalties
The provisions of subsection (b)(3)(C) of
(Aug. 14, 1935, ch. 531, title XI, §1150A, as added
Editorial Notes
Prior Provisions
A prior
§1320b–24. Consultation with Tribal Technical Advisory Group
The Secretary of Health and Human Services shall maintain within the Centers for Medicaid & Medicare Services 1 (CMS) a Tribal Technical Advisory Group (TTAG), which was first established in accordance with requirements of the charter dated September 30, 2003, and the Secretary of Health and Human Services shall include in such Group a representative of a national urban Indian health organization and a representative of the Indian Health Service. The inclusion of a representative of a national urban Indian health organization in such Group shall not affect the nonapplication of
(
Editorial Notes
Codification
Section was enacted as part of the American Recovery and Reinvestment Act of 2009, and not as part of the Social Security Act which comprises this chapter.
Amendments
2022—
1 So in original. Probably should be "Centers for Medicare & Medicaid Services".
§1320b–25. Reporting to law enforcement of crimes occurring in federally funded long-term care facilities
(a) Determination and notification
(1) Determination
The owner or operator of each long-term care facility that receives Federal funds under this chapter shall annually determine whether the facility received at least $10,000 in such Federal funds during the preceding year.
(2) Notification
If the owner or operator determines under paragraph (1) that the facility received at least $10,000 in such Federal funds during the preceding year, such owner or operator shall annually notify each covered individual (as defined in paragraph (3)) of that individual's obligation to comply with the reporting requirements described in subsection (b).
(3) Covered individual defined
In this section, the term "covered individual" means each individual who is an owner, operator, employee, manager, agent, or contractor of a long-term care facility that is the subject of a determination described in paragraph (1).
(b) Reporting requirements
(1) In general
Each covered individual shall report to the Secretary and 1 or more law enforcement entities for the political subdivision in which the facility is located any reasonable suspicion of a crime (as defined by the law of the applicable political subdivision) against any individual who is a resident of, or is receiving care from, the facility.
(2) Timing
If the events that cause the suspicion—
(A) result in serious bodily injury, the individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; and
(B) do not result in serious bodily injury, the individual shall report the suspicion not later than 24 hours after forming the suspicion.
(c) Penalties
(1) In general
If a covered individual violates subsection (b)—
(A) the covered individual shall be subject to a civil money penalty of not more than $200,000; and
(B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in
(2) Increased harm
If a covered individual violates subsection (b) and the violation exacerbates the harm to the victim of the crime or results in harm to another individual—
(A) the covered individual shall be subject to a civil money penalty of not more than $300,000; and
(B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in
(3) Excluded individual
During any period for which a covered individual is classified as an excluded individual under paragraph (1)(B) or (2)(B), a long-term care facility that employs such individual shall be ineligible to receive Federal funds under this chapter.
(4) Extenuating circumstances
(A) In general
The Secretary may take into account the financial burden on providers with underserved populations in determining any penalty to be imposed under this subsection.
(B) Underserved population defined
In this paragraph, the term "underserved population" means the population of an area designated by the Secretary as an area with a shortage of elder justice programs or a population group designated by the Secretary as having a shortage of such programs. Such areas or groups designated by the Secretary may include—
(i) areas or groups that are geographically isolated (such as isolated in a rural area);
(ii) racial and ethnic minority populations; and
(iii) populations underserved because of special needs (such as language barriers, disabilities, alien status, or age).
(d) Additional penalties for retaliation
(1) In general
A long-term care facility may not—
(A) discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee; or
(B) file a complaint or a report against a nurse or other employee with the appropriate State professional disciplinary agency because of lawful acts done by the nurse or employee,
for making a report, causing a report to be made, or for taking steps in furtherance of making a report pursuant to subsection (b)(1).
(2) Penalties for retaliation
If a long-term care facility violates subparagraph (A) or (B) of paragraph (1) the facility shall be subject to a civil money penalty of not more than $200,000 or the Secretary may classify the entity as an excluded entity for a period of 2 years pursuant to
(3) Requirement to post notice
Each long-term care facility shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying the rights of employees under this section. Such sign shall include a statement that an employee may file a complaint with the Secretary against a long-term care facility that violates the provisions of this subsection and information with respect to the manner of filing such a complaint.
(e) Procedure
The provisions of
(f) Definitions
In this section, the terms "elder justice", "long-term care facility", and "law enforcement" have the meanings given those terms in
(Aug. 14, 1935, ch. 531, title XI, §1150B, as added
§1320b–26. Funding for providers relating to COVID–19
(a) Funding
In addition to amounts otherwise available, there is appropriated to the Secretary, for fiscal year 2021, out of any monies in the Treasury not otherwise appropriated, $8,500,000,000 for purposes of making payments to eligible health care providers for health care related expenses and lost revenues that are attributable to COVID–19. Amounts appropriated under the preceding sentence shall remain available until expended.
(b) Application requirement
To be eligible for a payment under this section, an eligible health care provider shall submit to the Secretary an application in such form and manner as the Secretary shall prescribe. Such application shall contain the following:
(1) A statement justifying the need of the provider for the payment, including documentation of the health care related expenses attributable to COVID–19 and lost revenues attributable to COVID–19.
(2) The tax identification number of the provider.
(3) Such assurances as the Secretary determines appropriate that the eligible health care provider will maintain and make available such documentation and submit such reports (at such time, in such form, and containing such information as the Secretary shall prescribe) as the Secretary determines is necessary to ensure compliance with any conditions imposed by the Secretary under this section.
(4) Any other information determined appropriate by the Secretary.
(c) Limitation
Payments made to an eligible health care provider under this section may not be used to reimburse any expense or loss that—
(1) has been reimbursed from another source; or
(2) another source is obligated to reimburse.
(d) Application of requirements, rules, and procedures
The Secretary shall apply any requirements, rules, or procedures as the Secretary deems appropriate for the efficient execution of this section.
(e) Definitions
In this section:
(1) Eligible health care provider
The term "eligible health care provider" means—
(A) a provider of services (as defined in
(i) is enrolled in the Medicare program under subchapter XVIII under
(ii) provides diagnoses, testing, or care for individuals with possible or actual cases of COVID–19; and
(iii) is a rural provider or supplier; or
(B) a provider or supplier that—
(i) is enrolled with a State Medicaid plan under subchapter XIX (or a waiver of such plan) in accordance with subsections (a)(77) and (kk) of
(ii) provides diagnoses, testing, or care for individuals with possible or actual cases of COVID–19; and
(iii) is a rural provider or supplier.
(2) Health care related expenses attributable to COVID–19
The term "health care related expenses attributable to COVID–19" means health care related expenses to prevent, prepare for, and respond to COVID–19, including the building or construction of a temporary structure, the leasing of a property, the purchase of medical supplies and equipment, including personal protective equipment and testing supplies, providing for increased workforce and training (including maintaining staff, obtaining additional staff, or both), the operation of an emergency operation center, retrofitting a facility, providing for surge capacity, and other expenses determined appropriate by the Secretary.
(3) Lost revenue attributable to COVID–19
The term "lost revenue attributable to COVID–19" has the meaning given that term in the Frequently Asked Questions guidance released by the Department of Health and Human Services in June 2020, including the difference between such provider's budgeted and actual revenue if such budget had been established and approved prior to March 27, 2020.
(4) Payment
The term "payment" includes, as determined appropriate by the Secretary, a pre-payment, a prospective payment, a retrospective payment, or a payment through a grant or other mechanism.
(5) Rural provider or supplier
The term "rural provider or supplier" means—
(A) a—
(i) provider or supplier located in a rural area (as defined in
(ii) provider treated as located in a rural area pursuant to
(B) a provider or supplier located in any other area that serves rural patients (as defined by the Secretary), which may include, but is not required to include, a metropolitan statistical area with a population of less than 500,000 (determined based on the most recently available data);
(C) a rural health clinic (as defined in
(D) a provider or supplier that furnishes home health, hospice, or long-term services and supports in an individual's home located in a rural area (as defined in
(E) any other rural provider or supplier (as defined by the Secretary).
(Aug. 14, 1935, ch. 531, title XI, §1150C, as added
Part B—Peer Review of Utilization and Quality of Health Care Services
§1320c. Purpose
The purpose of this part is to establish the contracting process which the Secretary must follow pursuant to the requirements of
(Aug. 14, 1935, ch. 531, title XI, §1151, as added
Editorial Notes
Prior Provisions
A prior section 1320c, act Aug. 14, 1935, ch. 531, title XI, §1151, as added Oct. 30, 1972,
Amendments
2011—
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Effective Date
Section 149 of
IOM Study of QIOs
"(1)
"(A) An overview of the program under such part.
"(B) The duties of organizations with contracts with the Secretary under such part.
"(C) The extent to which quality improvement organizations improve the quality of care for medicare beneficiaries.
"(D) The extent to which other entities could perform such quality improvement functions as well as, or better than, quality improvement organizations.
"(E) The effectiveness of reviews and other actions conducted by such organizations in carrying out those duties.
"(F) The source and amount of funding for such organizations.
"(G) The conduct of oversight of such organizations.
"(2)
"(3)
Coordination of PROs and Carriers
"(1)
"(A) the development of common utilization and medical review criteria;
"(B) criteria for the targetting of reviews by peer review organizations and carriers; and
"(C) improved methods for exchange of information among peer review organizations and carriers.
"(2)
Evaluation of Professional Standards Review Organizations
Maintenance of Current Professional Standards Review Organization Agreements
"(a) The Secretary of Health and Human Services shall not terminate or fail to renew any agreement in effect with a professional standards review organization under part B of title XI of the Social Security Act [
"(b) The provisions of part B of title XI of the Social Security Act [
§1320c–1. Definition of quality improvement organization
The term "quality improvement organization" means an entity which—
(1) is able, as determined by the Secretary, to perform its functions under this part in a manner consistent with the efficient and effective administration of this part and subchapter XVIII;
(2) has at least one individual who is a representative of health care providers on its governing body; and
(3) has at least one individual who is a representative of consumers on its governing body.
(Aug. 14, 1935, ch. 531, title XI, §1152, as added
Editorial Notes
Prior Provisions
A prior section 1320c–1, act Aug. 14, 1935, ch. 531, title XI, §1152, as added Oct. 30, 1972,
Amendments
2011—
Pars. (1), (2).
"(1)(A) is composed of a substantial number of the licensed doctors of medicine and osteopathy engaged in the practice of medicine or surgery in the area and who are representative of the practicing physicians in the area, designated by the Secretary under
"(2) is able, in the judgment of the Secretary, to perform review functions required under
1986—Par. (3).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 1986 Amendment
§1320c–2. Contracts with quality improvement organizations
(a) Establishment of geographic areas
The Secretary shall establish throughout the United States such local, State, regional, national, or other geographic areas as the Secretary determines appropriate with respect to which contracts under this part will be made.
(b) Organizations entitled to contract with Secretary
(1) The Secretary shall enter into contracts with one or more quality improvement organizations for each area established under subsection (a) if a qualified organization is available in such area and such organization and the Secretary have negotiated a proposed contract which the Secretary determines will be carried out by such organization in a manner consistent with the efficient and effective administration of this part. In entering into contracts with such qualified organizations, the Secretary shall, to the extent appropriate, seek to ensure that each of the functions described in
(2)(A) Prior to November 15, 1984, the Secretary shall not enter into a contract under this part with any entity which is, or is affiliated with (through management, ownership, or common control), an entity (other than a self-insured employer) which directly or indirectly makes payments to any practitioner or provider whose health care services are reviewed by such entity or would be reviewed by such entity if it entered into a contract with the Secretary under this part. For purposes of this paragraph, an entity shall not be considered to be affiliated with another entity which makes payments (directly or indirectly) to any practitioner or provider, by reason of management, ownership, or common control, if the management, ownership, or common control consists only of members of the governing board being affiliated (through management, ownership, or common control) with a health maintenance organization or competitive medical plan which is an "eligible organization" as defined in
(B) If, after November 14, 1984, the Secretary determines that there is no other entity available for an area with which the Secretary can enter into a contract under this part or the Secretary determines that there is a more qualified entity to perform one or more of the functions in
(3)(A) The Secretary shall not enter into a contract under this part with any entity which is, or is affiliated with (through management, ownership, or common control), a health care facility within the area served by such entity or which would be served by such entity if it entered into a contract with the Secretary under this part.
(B) For purposes of subparagraph (A), an entity shall not be considered to be affiliated with a health care facility by reason of management, ownership, or common control if the management, ownership, or common control consists only of not more than 20 percent of the members of the governing board of the entity being affiliated (through management, ownership, or common control) with one or more of such facilities.
(4) The Secretary may consider a variety of factors in selecting the contractors that the Secretary determines would provide for the most efficient and effective administration of this part, such as geographic location, size, and prior experience in health care quality improvement. Quality improvement organizations operating as of January 1, 2012, shall be allowed to compete for new contracts (as determined appropriate by the Secretary) along with other qualified organizations and are eligible for renewal of contracts for terms five years thereafter (as determined appropriate by the Secretary).
(c) Terms of contract
Each contract with an organization under this section shall provide that—
(1) the organization shall perform a function or functions under
(2) the Secretary shall have the right to evaluate the quality and effectiveness of the organization in carrying out the functions specified in the contract;
(3) the contract shall be for an initial term of five years and shall be renewable for terms of five years thereafter;
(4) the Secretary shall include in the contract negotiated objectives against which the organization's performance will be judged, and negotiated specifications for use of regional norms, or modifications thereof based on national norms, for performing review functions under the contract; and
(5) reimbursement shall be made to the organization on a monthly basis, with payments for any month being made consistent with the Federal Acquisition Regulation.
In evaluating the performance of quality improvement organizations under contracts under this part, the Secretary shall place emphasis on the performance of such organizations in educating providers and practitioners (particularly those in rural areas) concerning the review process and criteria being applied by the organization.
(d) Repealed. Pub. L. 112–40, title II, §261(b)(3)(C), Oct. 21, 2011, 125 Stat. 424
(e) Authority of Secretary
(1) Except as provided in paragraph (2), contracting authority of the Secretary under this section may be carried out without regard to any provision of law relating to the making, performance, amendment, or modification of contracts of the United States as the Secretary may determine to be inconsistent with the purposes of this part. The Secretary may use different contracting methods with respect to different geographical areas.
(2) If a quality improvement organization with a contract under this section is required to carry out a review function in addition to any function required to be carried out at the time the Secretary entered into or renewed the contract with the organization, the Secretary shall, before requiring such organization to carry out such additional function, negotiate the necessary contractual modifications, including modifications that provide for an appropriate adjustment (in light of the cost of such additional function) to the amount of reimbursement made to the organization.
(f) Termination not subject to judicial review
Any determination by the Secretary to terminate or not to renew a contract under this section shall not be subject to judicial review.
(g) Timely provision of hospital data to quality improvement organizations
The Secretary shall provide that fiscal intermediaries furnish to quality improvement organizations, each month on a timely basis, data necessary to initiate the review process under
(h) Publication of new policy or procedure and general criteria and standards for evaluation; performance comparison report
(1) The Secretary shall publish in the Federal Register any new policy or procedure adopted by the Secretary that affects substantially the performance of contract obligations under this section not less than 30 days before the date on which such policy or procedure is to take effect. This paragraph shall not apply to the extent it is inconsistent with a statutory deadline.
(2) The Secretary shall publish in the Federal Register the general criteria and standards used for evaluating the efficient and effective performance of contract obligations under this section and shall provide opportunity for public comment with respect to such criteria and standards.
(3) The Secretary shall regularly furnish each quality improvement organization with a contract under this section with a report that documents the performance of the organization in relation to the performance of other such organizations.
(Aug. 14, 1935, ch. 531, title XI, §1153, as added
Editorial Notes
Prior Provisions
A prior section 1320c–2, act Aug. 14, 1935, ch. 531, title XI, §1153, as added Oct. 30, 1972,
Amendments
2011—
Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(2)(B).
Subsec. (b)(3)(A).
Subsec. (b)(3)(B).
Subsec. (b)(4).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(3).
Subsec. (c)(4).
Subsec. (c)(5).
Subsec. (c)(6) to (8).
"(A) the organization does not substantially meet the requirements of
"(B) the organization has failed substantially to carry out the contract or is carrying out the contract in a manner inconsistent with the efficient and effective administration of this part, but only after such organization has had an opportunity to submit data and have such data reviewed by the panel established under subsection (d) of this section;".
Subsec. (d).
Subsecs. (e)(2), (g), (h)(3).
Subsec. (i).
1987—Subsec. (c).
Subsec. (c)(3).
Subsec. (e).
Subsec. (h).
Subsec. (i).
1986—Subsec. (b)(2)(A).
Subsec. (c)(8).
Subsec. (d)(4).
Subsec. (g).
1984—Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(2)(C).
Subsec. (b)(3).
1983—Subsec. (b)(2)(C).
Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 1987 Amendment
Effective Date of 1986 Amendments
Effective Date of 1984 Amendment
Effective Date of 1983 Amendments
Amendment by
Amendment by
Extensions of Peer Review Contract Period; One-Time Extensions To Permit Staggering of Expiration Dates
"(A)
"(B)
§1320c–3. Functions of quality improvement organizations
(a) Review of professional activities; determination of payment; determination of review authority; consultation with professional health care practitioners; standards of health care; other duties
Subject to subsection (b), any quality improvement organization entering into a contract with the Secretary under this part must perform one or more of the following functions:
(1) The organization shall review some or all of the professional activities in the area, subject to the terms of the contract and subject to the requirements of subsection (d), of physicians and other health care practitioners and institutional and noninstitutional providers of health care services in the provision of health care services and items for which payment may be made (in whole or in part) under subchapter XVIII (including where payment is made for such services to eligible organizations pursuant to contracts under
(A) such services and items are or were reasonable and medically necessary and whether such services and items are not allowable under subsection (a)(1) or (a)(9) of
(B) the quality of such services meets professionally recognized standards of health care; and
(C) in case such services and items are proposed to be provided in a hospital or other health care facility on an inpatient basis, such services and items could, consistent with the provision of appropriate medical care, be effectively provided more economically on an outpatient basis or in an inpatient health care facility of a different type.
If the organization performs such reviews with respect to a type of health care practitioner other than medical doctors, the organization shall establish procedures for the involvement of health care practitioners of that type in such reviews.
(2) The organization shall determine, on the basis of the review carried out under subparagraphs (A), (B), and (C) of paragraph (1), whether payment shall be made for services under subchapter XVIII. Such determination shall constitute the conclusive determination on those issues for purposes of payment under subchapter XVIII, except that payment may be made if—
(A) such payment is allowed by reason of
(B) in the case of inpatient hospital services or extended care services, the quality improvement organization determines that additional time is required in order to arrange for postdischarge care, but payment may be continued under this subparagraph for not more than two days, but only in the case where the provider of such services did not know and could not reasonably have been expected to know (as determined under
(C) such determination is changed as the result of any hearing or review of the determination under
(D) such payment is authorized under
The organization shall identify cases for which payment should not be made by reason of paragraph (1)(B) only through the use of criteria developed pursuant to guidelines established by the Secretary.
(3)(A) Subject to subparagraphs (B) and (D), whenever the organization makes a determination that any health care services or items furnished or to be furnished to a patient by any practitioner or provider are disapproved, the organization shall promptly notify such patient and the agency or organization responsible for the payment of claims under subchapter XVIII of this chapter of such determination.
(B) The notification under subparagraph (A) with respect to services or items disapproved by reason of subparagraph (A) or (C) of paragraph (1) shall not occur until 20 days after the date that the organization has—
(i) made a preliminary notification to such practitioner or provider of such proposed determination, and
(ii) provided such practitioner or provider an opportunity for discussion and review of the proposed determination.
(C) The discussion and review conducted under subparagraph (B)(ii) shall not affect the rights of a practitioner or provider to a formal reconsideration of a determination under this part (as provided under
(D) The notification under subparagraph (A) with respect to services or items disapproved by reason of paragraph (1)(B) shall not occur until after—
(i) the organization has notified the practitioner or provider involved of the determination and of the practitioner's or provider's right to a formal reconsideration of the determination under
(ii) if the provider or practitioner requests such a reconsideration, the organization has made such a reconsideration.
If a provider or practitioner is provided a reconsideration, such reconsideration shall be in lieu of any subsequent reconsideration to which the provider or practitioner may be otherwise entitled under
(E)(i) In the case of services and items provided by a physician that were disapproved by reason of paragraph (1)(B), the notice to the patient shall state the following: "In the judgment of the quality improvement organization, the medical care received was not acceptable under the medicare program. The reasons for the denial have been discussed with your physician."
(ii) In the case of services or items provided by an entity or practitioner other than a physician, the Secretary may substitute the entity or practitioner which provided the services or items for the term "physician" in the notice described in clause (i).
(4)(A) The organization shall, after consultation with the Secretary, determine the types and kinds of cases (whether by type of health care or diagnosis involved, or whether in terms of other relevant criteria relating to the provision of health care services) with respect to which such organization will, in order to most effectively carry out the purposes of this part, exercise review authority under the contract. The organization shall notify the Secretary periodically with respect to such determinations. Each quality improvement organization shall provide that a reasonable proportion of its activities are involved with reviewing, under paragraph (1)(B), the quality of services and that a reasonable allocation of such activities is made among the different cases and settings (including post-acute-care settings, ambulatory settings, and health maintenance organizations). In establishing such allocation, the organization shall consider (i) whether there is reason to believe that there is a particular need for reviews of particular cases or settings because of previous problems regarding quality of care, (ii) the cost of such reviews and the likely yield of such reviews in terms of number and seriousness of quality of care problems likely to be discovered as a result of such reviews, and (iii) the availability and adequacy of alternative quality review and assurance mechanisms.
(B) The contract of each organization shall provide for the review of services (including both inpatient and outpatient services) provided by eligible organizations pursuant to a risk-sharing contract under
(5) The organization shall consult with nurses and other professional health care practitioners (other than physicians described in
(6)(A) The organization shall, consistent with the provisions of its contract under this part, apply professionally developed norms of care, diagnosis, and treatment based upon typical patterns of practice within the geographic area served by the organization as principal points of evaluation and review, taking into consideration national norms where appropriate. Such norms with respect to treatment for particular illnesses or health conditions shall include—
(i) the types and extent of the health care services which, taking into account differing, but acceptable, modes of treatment and methods of organizing and delivering care, are considered within the range of appropriate diagnosis and treatment of such illness or health condition, consistent with professionally recognized and accepted patterns of care; and
(ii) the type of health care facility which is considered, consistent with such standards, to be the type in which health care services which are medically appropriate for such illness or condition can most economically be provided.
As a component of the norms described in clause (i) or (ii), the organization shall take into account the special problems associated with delivering care in remote rural areas, the availability of service alternatives to inpatient hospitalization, and other appropriate factors (such as the distance from a patient's residence to the site of care, family support, availability of proximate alternative sites of care, and the patient's ability to carry out necessary or prescribed self-care regimens) that could adversely affect the safety or effectiveness of treatment provided on an outpatient basis.
(B) The organization shall—
(i) offer to provide, several times each year, for a physician representing the organization to meet (at a hospital or at a regional meeting) with medical and administrative staff of each hospital (the services of which are reviewed by the organization) respecting the organization's review of the hospital's services for which payment may be made under subchapter XVIII, and
(ii) publish (not less often than annually) and distribute to providers and practitioners whose services are subject to review a report that describes the organization's findings with respect to the types of cases in which the organization has frequently determined that (I) inappropriate or unnecessary care has been provided, (II) services were rendered in an inappropriate setting, or (III) services did not meet professionally recognized standards of health care.
(7) The organization, to the extent necessary and appropriate to the performance of the contract, shall—
(A)(i) make arrangements to utilize the services of persons who are practitioners of, or specialists in, the various areas of medicine (including dentistry, optometry, and podiatry), or other types of health care, which persons shall, to the maximum extent practicable, be individuals engaged in the practice of their profession within the area served by such organization; and
(ii) in the case of psychiatric and physical rehabilitation services, make arrangements to ensure that (to the extent possible) initial review of such services be made by a physician who is trained in psychiatry or physical rehabilitation (as appropriate).1
(B) undertake such professional inquiries either before or after, or both before and after, the provision of services with respect to which such organization has a responsibility for review which in the judgment of such organization will facilitate its activities;
(C) examine the pertinent records of any practitioner or provider of health care services providing services with respect to which such organization has a responsibility for review under paragraph (1); and
(D) inspect the facilities in which care is rendered or services are provided (which are located in such area) of any practitioner or provider of health care services providing services with respect to which such organization has a responsibility for review under paragraph (1).
(8) The organization shall perform such duties and functions and assume such responsibilities and comply with such other requirements as may be required by this part or under regulations of the Secretary promulgated to carry out the provisions of this part or as may be required to carry out
(9)(A) The organization shall collect such information relevant to its functions, and keep and maintain such records, in such form as the Secretary may require to carry out the purposes of this part, and shall permit access to and use of any such information and records as the Secretary may require for such purposes, subject to the provisions of
(B) If the organization finds, after reasonable notice to and opportunity for discussion with the physician or practitioner concerned, that the physician or practitioner has furnished services in violation of
(10) The organization shall coordinate activities, including information exchanges, which are consistent with economical and efficient operation of programs among appropriate public and private agencies or organizations including—
(A) agencies under contract pursuant to
(B) other quality improvement organizations having contracts under this part; and
(C) other public or private review organizations as may be appropriate.
(11) The organization shall make available its facilities and resources for contracting with private and public entities paying for health care in its area for review, as feasible and appropriate, of services reimbursed by such entities.
(12) As part of the organization's review responsibility under paragraph (1), the organization shall review all ambulatory surgical procedures specified pursuant to
(13) Notwithstanding paragraph (4), the organization shall perform the review described in paragraph (1) with respect to early readmission cases to determine if the previous inpatient hospital services and the post-hospital services met professionally recognized standards of health care. Such reviews may be performed on a sample basis if the organization and the Secretary determine it to be appropriate. In this paragraph, an "early readmission case" is a case in which an individual, after discharge from a hospital, is readmitted to a hospital less than 31 days after the date of the most recent previous discharge.
(14) The organization shall conduct an appropriate review of all written complaints about the quality of services (for which payment may otherwise be made under subchapter XVIII) not meeting professionally recognized standards of health care, if the complaint is filed with the organization by an individual entitled to benefits for such services under such subchapter (or a person acting on the individual's behalf). The organization shall inform the individual (or representative) of the organization's final disposition of the complaint. Before the organization concludes that the quality of services does not meet professionally recognized standards of health care, the organization must provide the practitioner or person concerned with reasonable notice and opportunity for discussion.
(15) During each year of the contract entered into under
(16) The organization shall provide for a review and report to the Secretary when requested by the Secretary under
(17) The organization shall execute its responsibilities under subparagraphs (A) and (B) of paragraph (1) by offering to providers, practitioners, Medicare Advantage organizations offering Medicare Advantage plans under part C, and prescription drug sponsors offering prescription drug plans under part D quality improvement assistance pertaining to prescription drug therapy. For purposes of this part and subchapter XVIII, the functions described in this paragraph shall be treated as a review function.
(18) The organization shall perform, subject to the terms of the contract, such other activities as the Secretary determines may be necessary for the purposes of improving the quality of care furnished to individuals with respect to items and services for which payment may be made under subchapter XVIII.
(b) Performance; exceptions
A quality improvement organization entering into a contract with the Secretary to perform a function described in a paragraph under subsection (a) must perform all of the activities described in such paragraph, except to the extent otherwise negotiated with the Secretary pursuant to the contract or except for a function for which the Secretary determines it is not appropriate for the organization to perform, such as a function that could cause a conflict of interest with another function.
(c) Review by physicians; physician's family defined
(1) No physician shall be permitted to review—
(A) health care services provided to a patient if he was directly responsible for providing such services; or
(B) health care services provided in or by an institution, organization, or agency, if he or any member of his family has, directly or indirectly, a significant financial interest in such institution, organization, or agency.
(2) For purposes of this subsection, a physician's family includes only his spouse (other than a spouse who is legally separated from him under a decree of divorce or separate maintenance), children (including legally adopted children), grandchildren, parents, and grandparents.
(d) Utilization of services of physicians to make final determinations of denial decisions with respect to professional conduct of other physicians
No quality improvement organization shall utilize the services of any individual who is not a duly licensed doctor of medicine, osteopathy, dentistry, optometry, or podiatry to make final determinations of denial decisions in accordance with its duties and functions under this part with respect to the professional conduct of any other duly licensed doctor of medicine, osteopathy, dentistry, optometry, or podiatry, or any act performed by any duly licensed doctor of medicine, osteopathy, dentistry, optometry, or podiatry in the exercise of his profession.
(e) Review of hospital denial notices
(1) If—
(A) a hospital has determined that a patient no longer requires inpatient hospital care, and
(B) the attending physician has agreed with the hospital's determination,
the hospital may provide the patient (or the patient's representative) with a notice (meeting conditions prescribed by the Secretary under
(2) to (4) Repealed.
(f) Identification of methods for identifying cases of substandard care
The Secretary, in consultation with appropriate experts, shall identify methods that would be available to assist quality improvement organizations (under subsection (a)(4)) in identifying those cases which are more likely than others to be associated with a quality of services which does not meet professionally recognized standards of health care.
(Aug. 14, 1935, ch. 531, title XI, §1154, as added
Editorial Notes
Prior Provisions
A prior section 1320c–3, act Aug. 14, 1935, ch. 531, title XI, §1154, as added Oct. 30, 1972,
Amendments
2011—
Subsec. (a).
Subsec. (a)(2)(B), (3)(E)(i), (4)(A).
Subsec. (a)(4)(C).
Subsec. (a)(10)(B).
Subsec. (a)(12).
Subsec. (a)(15).
Subsec. (a)(18).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (f).
2003—Subsec. (a)(1).
Subsec. (a)(17).
Subsec. (e)(5).
2000—Subsec. (e)(2) to (4).
1994—Subsec. (a)(4)(B).
Subsec. (a)(9)(B).
Subsec. (a)(12).
Subsec. (d).
1990—Subsec. (a)(2).
Subsec. (a)(3)(E).
Subsec. (a)(4)(B).
Subsec. (a)(7)(A)(i).
Subsec. (a)(9).
Subsec. (a)(16).
Subsec. (c).
1989—Subsec. (a)(1).
Subsec. (a)(3)(A).
Subsec. (a)(3)(B).
Subsec. (a)(3)(D), (E).
Subsec. (a)(16).
1988—Subsec. (a)(3)(C).
Subsec. (a)(4).
Subsec. (a)(6).
Subsec. (a)(15).
Subsec. (a)(16).
Subsec. (d).
Subsec. (e)(3)(A)(i).
Subsec. (e)(3)(B).
1987—Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(4)(B).
Subsec. (a)(6).
Subsec. (a)(7)(A).
Subsec. (a)(15).
Subsec. (d).
Subsec. (e)(2).
Subsec. (e)(3)(A)(i), (B).
1986—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(4)(A).
Subsec. (a)(4)(B).
Subsec. (a)(4)(C).
Subsec. (a)(8).
Subsec. (a)(12).
Subsec. (a)(13).
Subsec. (a)(14).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1983—Subsec. (a)(1)(A).
Subsec. (a)(2)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 2003 Amendment
Effective Date of 2000 Amendment
Effective Date of 1994 Amendment
Amendment by section 171(h)(2) of
Effective Date of 1990 Amendment
"(1) The amendments made by this section [amending this section and
"(A) in 15 States (as determined by the Secretary of Health and Human Services) and such other States as elect such amendments to apply to them, and
"(B) subject to paragraph (2), during the 6½-year period beginning with 1992.
For purposes of this paragraph, the term 'State' has the meaning given such term by section 210(h) of the Social Security Act (
"(2)(A) The Secretary of Health and Human Services shall conduct a study that compares the health care costs, quality of care, and access to services under medicare select policies with that under other medicare supplemental policies. The study shall be based on surveys of appropriate age-adjusted sample populations. The study shall be completed by June 30, 1997.
"(B) Not later than December 31, 1997, the Secretary shall determine, based on the results of the study under subparagraph (A), if any of the following findings are true:
"(i) The amendments made by this section have not resulted in savings of premium costs to those enrolled in medicare select policies (in comparison to their enrollment in medicare supplemental policies that are not medicare select policies and that provide comparable coverage).
"(ii) There have been significant additional expenditures under the medicare program as a result of such amendments.
"(iii) Access to and quality of care has been significantly diminished as a result of such amendments.
"(C) The amendments made by this section shall remain in effect beyond the 6½-year period described in paragraph (1)(B) unless the Secretary determines that any of the findings described in clause (i), (ii), or (iii) of subparagraph (B) are true.
"(3) The Comptroller General shall conduct a study to determine the extent to which individuals who are continuously covered under a medicare supplemental policy are subject to medical underwriting if they change the policy under which they are covered, and to identify options, if necessary, for modifying the medicare supplemental insurance market to make sure that continuously insured beneficiaries are able to switch plans without medical underwriting. By not later than June 30, 1996, the Comptroller General shall submit to the Congress a report on the study. The report shall include a description of the potential impact on the cost and availability of medicare supplemental policies of each option identified in the study."
[
Effective Date of 1989 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Except as specifically provided in section 411 of
Effective Date of 1987 Amendment
Effective Date of 1986 Amendment
Amendment by section 9343(d) of
"(1) Except as provided in paragraph (2), the amendment made by subsection (a) [amending this section] shall apply to denial notices furnished by hospitals to individuals on or after the first day of the first month that begins more than 30 days after the date of the enactment of this Act [Oct. 21, 1986].
"(2) Section 1154(e)(4) of the Social Security Act [subsec. (e)(4) of this section] (as added by the amendment made by subsection (a)) shall take effect on the date of the enactment of this Act [Oct. 21, 1986]."
"(A)(i) Except as provided in clause (ii), the amendments made by paragraph (1) [amending this section] shall apply to contracts entered into or renewed on or after January 1, 1987.
"(ii) The amendment made by paragraph (1) shall not be construed as requiring, before January 1, 1989, the review of physicians' services, other than physicians' services furnished in a hospital, other inpatient facility, ambulatory surgical center, or rural health clinic.
"(B) The amendments made by paragraphs (2)(B) and (2)(D) [amending this section] shall apply to contracts as of April 1, 1987.
"(C) The amendment made by paragraph (2)(C) [amending this section] shall apply to review activities conducted by organizations on or after January 1, 1988.
"(D) The amendment made by paragraph (3) [amending this section] becomes effective on the date of the enactment of this Act [Oct. 21, 1986]."
Effective Date of 1983 Amendment
Amendment by
State Regulatory Programs
For provisions relating to changes required to conform State regulatory programs to amendments by section 171 of
Review and Analysis of Variations in Utilization of Hospital and Other Health Care Services
1 So in original. The period probably should be a semicolon.
§1320c–4. Right to hearing and judicial review
Any beneficiary who is entitled to benefits under subchapter XVIII, and, subject to
(Aug. 14, 1935, ch. 531, title XI, §1155, as added
Editorial Notes
Prior Provisions
A prior section 1320c–4, act Aug. 14, 1935, ch. 531, title XI, §1155, as added Oct. 30, 1972,
Amendments
2011—
1994—
1989—
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1989 Amendment
Amendment by
§1320c–5. Obligations of health care practitioners and providers of health care services; sanctions and penalties; hearings and review
(a) Assurances regarding services and items ordered or provided by practitioner or provider
It shall be the obligation of any health care practitioner and any other person (including a hospital or other health care facility, organization, or agency) who provides health care services for which payment may be made (in whole or in part) under this chapter, to assure, to the extent of his authority that services or items ordered or provided by such practitioner or person to beneficiaries and recipients under this chapter—
(1) will be provided economically and only when, and to the extent, medically necessary;
(2) will be of a quality which meets professionally recognized standards of health care; and
(3) will be supported by evidence of medical necessity and quality in such form and fashion and at such time as may reasonably be required by a reviewing quality improvement organization in the exercise of its duties and responsibilities.
(b) Sanctions and penalties; hearings and review
(1) If after reasonable notice and opportunity for discussion with the practitioner or person concerned, and, if appropriate, after the practitioner or person has been given a reasonable opportunity to enter into and complete a corrective action plan (which may include remedial education) agreed to by the organization, and has failed successfully to complete such plan, any organization having a contract with the Secretary under this part determines that such practitioner or person has—
(A) failed in a substantial number of cases substantially to comply with any obligation imposed on him under subsection (a), or
(B) grossly and flagrantly violated any such obligation in one or more instances,
such organization shall submit a report and recommendations to the Secretary. If the Secretary agrees with such determination, the Secretary (in addition to any other sanction provided under law) may exclude (permanently or for such period as the Secretary may prescribe, except that such period may not be less than 1 year) such practitioner or person from eligibility to provide services under this chapter on a reimbursable basis. If the Secretary fails to act upon the recommendations submitted to him by such organization within 120 days after such submission, such practitioner or person shall be excluded from eligibility to provide services on a reimbursable basis until such time as the Secretary determines otherwise.
(2) A determination made by the Secretary under this subsection to exclude a practitioner or person shall be effective on the same date and in the same manner as an exclusion from participation under the programs under this chapter becomes effective under
(3) In lieu of the sanction authorized by paragraph (1), the Secretary may require that (as a condition to the continued eligibility of such practitioner or person to provide such health care services on a reimbursable basis) such practitioner or person pays 1 to the United States, in case such acts or conduct involved the provision or ordering by such practitioner or person of health care services which were medically improper or unnecessary, an amount not in excess of up to $10,000 for each instance of the medically improper or unnecessary services so provided. Such amount may be deducted from any sums owing by the United States (or any instrumentality thereof) to the practitioner or person from whom such amount is claimed.
(4) Any practitioner or person furnishing services described in paragraph (1) who is dissatisfied with a determination made by the Secretary under this subsection shall be entitled to reasonable notice and opportunity for a hearing thereon by the Secretary to the same extent as is provided in
(5) Before the Secretary may effect an exclusion under paragraph (2) in the case of a provider or practitioner located in a rural health professional shortage area or in a county with a population of less than 70,000, the provider or practitioner adversely affected by the determination is entitled to a hearing before an administrative law judge (described in
(6) When the Secretary effects an exclusion of a physician under paragraph (2), the Secretary shall notify the State board responsible for the licensing of the physician of the exclusion.
(c) Enlistment of support of other organizations to assure practitioner's or provider's compliance with obligations
It shall be the duty of each quality improvement organization to use such authority or influence it may possess as a professional organization, and to enlist the support of any other professional or governmental organization having influence or authority over health care practitioners and any other person (including a hospital or other health care facility, organization, or agency) providing health care services in the area served by such review organization, in assuring that each practitioner or person (referred to in subsection (a)) providing health care services in such area shall comply with all obligations imposed on him under subsection (a).
(Aug. 14, 1935, ch. 531, title XI, §1156, as added
Editorial Notes
Prior Provisions
A prior section 1320c–5, act Aug. 14, 1935, ch. 531, title XI, §1156, as added Oct. 30, 1972,
Amendments
2011—Subsec. (a)(3).
Subsec. (c).
1996—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
1994—Subsec. (b)(1).
1990—Subsec. (b)(1).
Subsec. (b)(5).
Subsec. (b)(6).
1988—Subsec. (b).
1987—Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(5).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by section 214 of
Amendment by section 231(f) of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1990 Amendment
Effective Date of 1988 Amendment
Except as specifically provided in section 411 of
Effective Date of 1987 Amendment
Amendment by
Telecommunications Demonstration Projects
Preexclusion Hearings; Transition for Current Cases and Redetermination in Certain Cases
"(c)
"(1) for whom a notice of determination under section 1156(b) of the Social Security Act [
"(2) who has not exhausted the administrative remedies available under section 1156(b)(4) of such Act for review of the determination, and
"(3) who requests, within 90 days after the date of the enactment of this Act, a hearing established under this subsection,
the Secretary of Health and Human Services shall provide for a hearing described in section 1156(b)(5) of the Social Security Act (as amended by subsection (a) of this section).
"(d)
1 So in original. Probably should be "pay".
§1320c–6. Limitation on liability
(a) Providers of information to organizations having a contract with Secretary
Notwithstanding any other provision of law, no person providing information to any organization having a contract with the Secretary under this part shall be held, by reason of having provided such information, to have violated any criminal law, or to be civilly liable under any law of the United States or of any State (or political subdivision thereof) unless—
(1) such information is unrelated to the performance of the contract of such organization; or
(2) such information is false and the person providing it knew, or had reason to believe, that such information was false.
(b) Employees and fiduciaries of organizations having contracts with Secretary
No organization having a contract with the Secretary under this part and no person who is employed by, or who has a fiduciary relationship with, any such organization or who furnishes professional services to such organization, shall be held by reason of the performance of any duty, function, or activity required or authorized pursuant to this part or to a valid contract entered into under this part, to have violated any criminal law, or to be civilly liable under any law of the United States or of any State (or political subdivision thereof) provided due care was exercised in the performance of such duty, function, or activity.
(c) Physicians and providers
No doctor of medicine or osteopathy and no provider (including directors, trustees, employees, or officials thereof) of health care services shall be civilly liable to any person under any law of the United States or of any State (or political subdivision thereof) on account of any action taken by him in compliance with or reliance upon professionally developed norms of care and treatment applied by an organization under contract pursuant to
(1) he takes such action in the exercise of his profession as a doctor of medicine or osteopathy or in the exercise of his functions as a provider of health care services; and
(2) he exercised due care in all professional conduct taken or directed by him and reasonably related to, and resulting from, the actions taken in compliance with or reliance upon such professionally accepted norms of care and treatment.
(d) Reimbursement by Secretary for expenses incurred in defense of legal proceedings
The Secretary shall make payment to an organization under contract with him pursuant to this part, or to any member or employee thereof, or to any person who furnishes legal counsel or services to such organization, in an amount equal to the reasonable amount of the expenses incurred, as determined by the Secretary, in connection with the defense of any suit, action, or proceeding brought against such organization, member, or employee related to the performance of any duty or function under such contract by such organization, member, or employee.
(Aug. 14, 1935, ch. 531, title XI, §1157, as added
Editorial Notes
Prior Provisions
A prior section 1320c–6, act Aug. 14, 1935, ch. 531, title XI, §1157, as added Oct. 30, 1972,
Amendments
1990—Subsec. (b).
§1320c–7. Application of this part to certain State programs receiving Federal financial assistance
(a) State plan provision that functions of quality improvement organizations may be performed by contract with such organization
A State plan approved under subchapter XIX of this chapter may provide that the functions specified in
(b) Federal share of expenditures
In the event a State enters into a contract in accordance with subsection (a), the Federal share of the expenditures made to the contracting organization for its costs in the performance of its functions under the State plan shall be 75 percent (as provided in
(Aug. 14, 1935, ch. 531, title XI, §1158, as added
Editorial Notes
Prior Provisions
A prior section 1320c–7, act Aug. 14, 1935, ch. 531, title XI, §1158, as added Oct. 30, 1972,
Amendments
2011—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
§1320c–8. Authorization for use of certain funds to administer provisions of this part
Expenses incurred in the administration of the contracts described in
(1) funds in the Federal Hospital Insurance Trust Fund; and
(2) funds in the Federal Supplementary Medical Insurance Trust Fund,
in such amounts from each of such Trust Funds as the Secretary shall deem to be fair and equitable after taking into consideration the expenses attributable to the administration of this part with respect to each of such programs. The Secretary shall make such transfers of moneys between such Trust Funds as may be appropriate to settle accounts between them in cases where expenses properly payable from one such Trust Fund have been paid from the other such Trust Fund.
(Aug. 14, 1935, ch. 531, title XI, §1159, as added
Editorial Notes
Prior Provisions
A prior section 1320c–8, act Aug. 14, 1935, ch. 531, title XI, §1159, as added Oct. 30, 1972,
§1320c–9. Prohibition against disclosure of information
(a) Freedom of Information Act inapplicable; exceptions to nondisclosure
An organization, in carrying out its functions under a contract entered into under this part, shall not be a Federal agency for purposes of the provisions of
(1) to the extent that may be necessary to carry out the purposes of this part,
(2) in such cases and under such circumstances as the Secretary shall by regulations provide to assure adequate protection of the rights and interests of patients, health care practitioners, or providers of health care, or
(3) in accordance with subsection (b).
(b) Disclosure of information permitted
An organization having a contract with the Secretary under this part shall provide in accordance with procedures and safeguards established by the Secretary, data and information—
(1) which may identify specific providers or practitioners as may be necessary—
(A) to assist Federal and State agencies recognized by the Secretary as having responsibility for identifying and investigating cases or patterns of fraud or abuse, which data and information shall be provided by the quality improvement organization to any such agency at the request of such agency relating to a specific case or pattern;
(B) to assist appropriate Federal and State agencies recognized by the Secretary as having responsibility for identifying cases or patterns involving risks to the public health, which data and information shall be provided by the quality improvement organization to any such agency—
(i) at the discretion of the quality improvement organization, at the request of such agency relating to a specific case or pattern with respect to which such agency has made a finding, or has a reasonable belief, that there may be a substantial risk to the public health, or
(ii) upon a finding by, or the reasonable belief of, the quality improvement organization that there may be a substantial risk to the public health;
(C) to assist appropriate State agencies recognized by the Secretary as having responsibility for licensing or certification of providers or practitioners or to assist national accreditation bodies acting pursuant to
(D) to provide notice in accordance with
(2) to assist the Secretary, and such Federal and State agencies recognized by the Secretary as having health planning or related responsibilities under Federal or State law (including health systems agencies and State health planning and development agencies), in carrying out appropriate health care planning and related activities, which data and information shall be provided in such format and manner as may be prescribed by the Secretary or agreed upon by the responsible Federal and State agencies and such organization, and shall be in the form of aggregate statistical data (without explicitly identifying any individual) on a geographic, institutional, or other basis reflecting the volume and frequency of services furnished, as well as the demographic characteristics of the population subject to review by such organization.
The penalty provided in subsection (c) shall not apply to the disclosure of any information received under this subsection, except that such penalty shall apply to the disclosure (by the agency receiving such information) of any such information described in paragraph (1) unless such disclosure is made in a judicial, administrative, or other formal legal proceeding resulting from an investigation conducted by the agency receiving the information. An organization may require payment of a reasonable fee for providing information under this subsection in response to a request for such information.
(c) Penalties
It shall be unlawful for any person to disclose any such information described in subsection (a) other than for the purposes provided in subsections (a) and (b), and any person violating the provisions of this section shall, upon conviction, be fined not more than $1,000, and imprisoned for not more than 6 months, or both, and shall be required to pay the costs of prosecution.
(d) Subpoena and discovery proceedings regarding patient records
No patient record in the possession of an organization having a contract with the Secretary under this part shall be subject to subpoena or discovery proceedings in a civil action. No document or other information produced by such an organization in connection with its deliberations in making determinations under
(e) Organizations with contracts
For purposes of this section and
(Aug. 14, 1935, ch. 531, title XI, §1160, as added
Editorial Notes
References in Text
Prior Provisions
A prior section 1320c–9, act Aug. 14, 1935, ch. 531, title XI, §1160, as added Oct. 30, 1972,
Amendments
2011—Subsec. (b)(1)(A) to (C).
1994—Subsec. (b)(1)(D).
Subsec. (d).
1990—Subsec. (b)(1)(D).
Subsec. (d).
1988—Subsec. (e).
1987—Subsec. (e).
1986—Subsec. (b)(1)(C).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Effective Date of 1994 Amendment
"(A) Except as provided in subparagraph (B), the amendments made by this subsection [amending this section,
"(B) The amendments made by paragraph (2) [amending this section and
Effective Date of 1990 Amendment
Amendment by section 4205(d)(1)(B) of
Effective Date of 1988 Amendment
Except as specifically provided in section 411 of
Effective Date of 1986 Amendment
Freedom of Information Act Request
1 See References in Text note below.
§1320c–10. Annual reports
The Secretary shall submit to the Congress not later than April 1 of each year, a full and complete report on the administration, impact, and cost of the program under this part during the preceding fiscal year, including data and information on—
(1) the number, status, and service areas of all quality improvement organizations participating in the program;
(2) the number of health care institutions and practitioners whose services are subject to review by such organizations, and the number of beneficiaries and recipients who received services subject to such review during such year;
(3) the various methods of reimbursement utilized in contracts under this part, and the relative efficiency of each such method of reimbursement;
(4) the imposition of penalties and sanctions under this title for violations of law and for failure to comply with the obligations imposed by this part;
(5) the total costs incurred under subchapters XVIII and XIX of this chapter in the implementation and operation of all procedures required by such subchapters for the review of services to determine their medical necessity, appropriateness of use, and quality; and
(6) descriptions of the criteria upon which decisions are made, and the selection and relative weights of such criteria.
(Aug. 14, 1935, ch. 531, title XI, §1161, as added
Editorial Notes
Prior Provisions
A prior section 1320c–10, act Aug. 14, 1935, ch. 531, title XI, §1161, as added Oct. 30, 1972,
Amendments
2011—Par. (1).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by
Performance of Professional Standards Review Organizations; Report to Congress
§1320c–11. Exemptions for religious nonmedical health care institutions
The provisions of this part shall not apply with respect to a religious nonmedical health care institution (as defined in
(Aug. 14, 1935, ch. 531, title XI, §1162, as added
Editorial Notes
Prior Provisions
A prior section 1320c–11, act Aug. 14, 1935, ch. 531, title XI, §1162, as added Oct. 30, 1972,
Amendments
1997—
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Amendment by
§1320c–12. Medical officers in American Samoa, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands to be included in the quality improvement program
For purposes of applying this part to American Samoa, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands, individuals licensed to practice medicine in those places shall be considered to be physicians and doctors of medicine.
(Aug. 14, 1935, ch. 531, title XI, §1163, as added
Editorial Notes
Prior Provisions
A prior section 1320c–12, act Aug. 14, 1935, ch. 531, title XI, §1163, as added Oct. 30, 1972,
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§1320c–13. Repealed. Pub. L. 103–432, title I, §156(a)(1), Oct. 31, 1994, 108 Stat. 4440
Section, act Aug. 14, 1935, ch. 531, title XI, §1164, as added Apr. 7, 1986,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to services provided on or after Oct. 31, 1994, see section 156(a)(3) of
§§1320c–14 to 1320c–19. Omitted
Editorial Notes
Codification
Sections 1320c–14 to 1320c–19 were omitted in the general revision of this part by
Section 1320c–14, act Aug. 14, 1935, ch. 531, title XI, §1165, as added Oct. 30, 1972,
Section 1320c–15, act Aug. 14, 1935, ch. 531, title XI, §1166, as added Oct. 30, 1972,
Section 1320c–16, act Aug. 14, 1935, ch. 531, title XI, §1167, as added Oct. 30, 1972,
Section 1320c–17, act Aug. 14, 1935, ch. 531, title XI, §1168, as added Oct. 30, 1972,
Section 1320c–18, act Aug. 14, 1935, ch. 531, title XI, §1169, as added Oct. 30, 1972,
Section 1320c–19, act Aug. 14, 1935, ch. 531, title XI, §1170, as added Oct. 30, 1972,
§1320c–20. Repealed. Pub. L. 97–35, title XXI, §2113(k), Aug. 13, 1981, 95 Stat. 795
Section, act Aug. 14, 1935, ch. 531, title XI, §1171, as added Oct. 25, 1977,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to agreements with Professional Standards Review Organizations entered into on or after Oct. 1, 1981, see section 2113(o) of
§§1320c–21, 1320c–22. Omitted
Editorial Notes
Codification
Sections 1320c–21 and 1320c–22 were omitted in the general revision of this part by
Section 1320c–21, act Aug. 14, 1935, ch. 531, title XI, §1172, as added Oct. 25, 1977,
Section 1320c–22, act Aug. 14, 1935, ch. 531, title XI, §1173, as added Oct. 25, 1977,
Part C—Administrative Simplification
§1320d. Definitions
For purposes of this part:
(1) Code set
The term "code set" means any set of codes used for encoding data elements, such as tables of terms, medical concepts, medical diagnostic codes, or medical procedure codes.
(2) Health care clearinghouse
The term "health care clearinghouse" means a public or private entity that processes or facilitates the processing of nonstandard data elements of health information into standard data elements.
(3) Health care provider
The term "health care provider" includes a provider of services (as defined in
(4) Health information
The term "health information" means any information, whether oral or recorded in any form or medium, that—
(A) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
(5) Health plan
The term "health plan" means an individual or group plan that provides, or pays the cost of, medical care (as such term is defined in
(A) A group health plan (as defined in
(i) has 50 or more participants (as defined in
(ii) is administered by an entity other than the employer who established and maintains the plan.
(B) A health insurance issuer (as defined in
(C) A health maintenance organization (as defined in
(D) Parts 1 A, B, C, or D of the Medicare program under subchapter XVIII.
(E) The medicaid program under subchapter XIX.
(F) A Medicare supplemental policy (as defined in
(G) A long-term care policy, including a nursing home fixed indemnity policy (unless the Secretary determines that such a policy does not provide sufficiently comprehensive coverage of a benefit so that the policy should be treated as a health plan).
(H) An employee welfare benefit plan or any other arrangement which is established or maintained for the purpose of offering or providing health benefits to the employees of 2 or more employers.
(I) The health care program for active military personnel under title 10.
(J) The veterans health care program under
(K) The Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), as defined in
(L) The Indian health service program under the Indian Health Care Improvement Act (
(M) The Federal Employees Health Benefit Plan under
(6) Individually identifiable health information
The term "individually identifiable health information" means any information, including demographic information collected from an individual, that—
(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and—
(i) identifies the individual; or
(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.
(7) Standard
The term "standard", when used with reference to a data element of health information or a transaction referred to in
(8) Standard setting organization
The term "standard setting organization" means a standard setting organization accredited by the American National Standards Institute, including the National Council for Prescription Drug Programs, that develops standards for information transactions, data elements, or any other standard that is necessary to, or will facilitate, the implementation of this part.
(9) Operating rules
The term "operating rules" means the necessary business rules and guidelines for the electronic exchange of information that are not defined by a standard or its implementation specifications as adopted for purposes of this part.
(Aug. 14, 1935, ch. 531, title XI, §1171, as added
Editorial Notes
References in Text
The Indian Health Care Improvement Act, referred to in par. (5)(L), is
Prior Provisions
A prior section 1171 of act Aug. 14, 1935, was classified to
Amendments
2010—Par. (9).
2009—Par. (5)(D).
2001—Par. (5)(D).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Purpose
1 So in original. Probably should be "Part".
§1320d–1. General requirements for adoption of standards
(a) Applicability
Any standard adopted under this part shall apply, in whole or in part, to the following persons:
(1) A health plan.
(2) A health care clearinghouse.
(3) A health care provider who transmits any health information in electronic form in connection with a transaction referred to in
(b) Reduction of costs
Any standard adopted under this part shall be consistent with the objective of reducing the administrative costs of providing and paying for health care.
(c) Role of standard setting organizations
(1) In general
Except as provided in paragraph (2), any standard adopted under this part shall be a standard that has been developed, adopted, or modified by a standard setting organization.
(2) Special rules
(A) Different standards
The Secretary may adopt a standard that is different from any standard developed, adopted, or modified by a standard setting organization, if—
(i) the different standard will substantially reduce administrative costs to health care providers and health plans compared to the alternatives; and
(ii) the standard is promulgated in accordance with the rulemaking procedures of subchapter III of
(B) No standard by standard setting organization
If no standard setting organization has developed, adopted, or modified any standard relating to a standard that the Secretary is authorized or required to adopt under this part—
(i) paragraph (1) shall not apply; and
(ii) subsection (f) shall apply.
(3) Consultation requirement
(A) In general
A standard may not be adopted under this part unless—
(i) in the case of a standard that has been developed, adopted, or modified by a standard setting organization, the organization consulted with each of the organizations described in subparagraph (B) in the course of such development, adoption, or modification; and
(ii) in the case of any other standard, the Secretary, in complying with the requirements of subsection (f), consulted with each of the organizations described in subparagraph (B) before adopting the standard.
(B) Organizations described
The organizations referred to in subparagraph (A) are the following:
(i) The National Uniform Billing Committee.
(ii) The National Uniform Claim Committee.
(iii) The Workgroup for Electronic Data Interchange.
(iv) The American Dental Association.
(d) Implementation specifications
The Secretary shall establish specifications for implementing each of the standards adopted under this part.
(e) Protection of trade secrets
Except as otherwise required by law, a standard adopted under this part shall not require disclosure of trade secrets or confidential commercial information by a person required to comply with this part.
(f) Assistance to Secretary
In complying with the requirements of this part, the Secretary shall rely on the recommendations of the National Committee on Vital and Health Statistics established under
(g) Application to modifications of standards
This section shall apply to a modification to a standard (including an addition to a standard) adopted under
(Aug. 14, 1935, ch. 531, title XI, §1172, as added
Editorial Notes
Prior Provisions
A prior section 1172 of act Aug. 14, 1935, was classified to
§1320d–2. Standards for information transactions and data elements
(a) Standards to enable electronic exchange
(1) In general
The Secretary shall adopt standards for transactions, and data elements for such transactions, to enable health information to be exchanged electronically, that are appropriate for—
(A) the financial and administrative transactions described in paragraph (2); and
(B) other financial and administrative transactions determined appropriate by the Secretary, consistent with the goals of improving the operation of the health care system and reducing administrative costs, and subject to the requirements under paragraph (5).
(2) Transactions
The transactions referred to in paragraph (1)(A) are transactions with respect to the following:
(A) Health claims or equivalent encounter information.
(B) Health claims attachments.
(C) Enrollment and disenrollment in a health plan.
(D) Eligibility for a health plan.
(E) Health care payment and remittance advice.
(F) Health plan premium payments.
(G) First report of injury.
(H) Health claim status.
(I) Referral certification and authorization.
(J) Electronic funds transfers.
(3) Accommodation of specific providers
The standards adopted by the Secretary under paragraph (1) shall accommodate the needs of different types of health care providers.
(4) Requirements for financial and administrative transactions
(A) In general
The standards and associated operating rules adopted by the Secretary shall—
(i) to the extent feasible and appropriate, enable determination of an individual's eligibility and financial responsibility for specific services prior to or at the point of care;
(ii) be comprehensive, requiring minimal augmentation by paper or other communications;
(iii) provide for timely acknowledgment, response, and status reporting that supports a transparent claims and denial management process (including adjudication and appeals); and
(iv) describe all data elements (including reason and remark codes) in unambiguous terms, require that such data elements be required or conditioned upon set values in other fields, and prohibit additional conditions (except where necessary to implement State or Federal law, or to protect against fraud and abuse).
(B) Reduction of clerical burden
In adopting standards and operating rules for the transactions referred to under paragraph (1), the Secretary shall seek to reduce the number and complexity of forms (including paper and electronic forms) and data entry required by patients and providers.
(5) Consideration of standardization of activities and items
(A) In general
For purposes of carrying out paragraph (1)(B), the Secretary shall solicit, not later than January 1, 2012, and not less than every 3 years thereafter, input from entities described in subparagraph (B) on—
(i) whether there could be greater uniformity in financial and administrative activities and items, as determined appropriate by the Secretary; and
(ii) whether such activities should be considered financial and administrative transactions (as described in paragraph (1)(B)) for which the adoption of standards and operating rules would improve the operation of the health care system and reduce administrative costs.
(B) Solicitation of input
For purposes of subparagraph (A), the Secretary shall seek input from—
(i) the National Committee on Vital and Health Statistics, the Health Information Technology Policy Committee, and the Health Information Technology Standards Committee; and
(ii) standard setting organizations and stakeholders, as determined appropriate by the Secretary.
(b) Unique health identifiers
(1) In general
The Secretary shall adopt standards providing for a standard unique health identifier for each individual, employer, health plan, and health care provider for use in the health care system. In carrying out the preceding sentence for each health plan and health care provider, the Secretary shall take into account multiple uses for identifiers and multiple locations and specialty classifications for health care providers.
(2) Use of identifiers
The standards adopted under paragraph (1) shall specify the purposes for which a unique health identifier may be used.
(c) Code sets
(1) In general
The Secretary shall adopt standards that—
(A) select code sets for appropriate data elements for the transactions referred to in subsection (a)(1) from among the code sets that have been developed by private and public entities; or
(B) establish code sets for such data elements if no code sets for the data elements have been developed.
(2) Distribution
The Secretary shall establish efficient and low-cost procedures for distribution (including electronic distribution) of code sets and modifications made to such code sets under
(d) Security standards for health information
(1) Security standards
The Secretary shall adopt security standards that—
(A) take into account—
(i) the technical capabilities of record systems used to maintain health information;
(ii) the costs of security measures;
(iii) the need for training persons who have access to health information;
(iv) the value of audit trails in computerized record systems; and
(v) the needs and capabilities of small health care providers and rural health care providers (as such providers are defined by the Secretary); and
(B) ensure that a health care clearinghouse, if it is part of a larger organization, has policies and security procedures which isolate the activities of the health care clearinghouse with respect to processing information in a manner that prevents unauthorized access to such information by such larger organization.
(2) Safeguards
Each person described in
(A) to ensure the integrity and confidentiality of the information;
(B) to protect against any reasonably anticipated—
(i) threats or hazards to the security or integrity of the information; and
(ii) unauthorized uses or disclosures of the information; and
(C) otherwise to ensure compliance with this part by the officers and employees of such person.
(e) Electronic signature
(1) Standards
The Secretary, in coordination with the Secretary of Commerce, shall adopt standards specifying procedures for the electronic transmission and authentication of signatures with respect to the transactions referred to in subsection (a)(1).
(2) Effect of compliance
Compliance with the standards adopted under paragraph (1) shall be deemed to satisfy Federal and State statutory requirements for written signatures with respect to the transactions referred to in subsection (a)(1).
(f) Transfer of information among health plans
The Secretary shall adopt standards for transferring among health plans appropriate standard data elements needed for the coordination of benefits, the sequential processing of claims, and other data elements for individuals who have more than one health plan.
(g) Operating rules
(1) In general
The Secretary shall adopt a single set of operating rules for each transaction referred to under subsection (a)(1) with the goal of creating as much uniformity in the implementation of the electronic standards as possible. Such operating rules shall be consensus-based and reflect the necessary business rules affecting health plans and health care providers and the manner in which they operate pursuant to standards issued under Health Insurance Portability and Accountability Act of 1996.
(2) Operating rules development
In adopting operating rules under this subsection, the Secretary shall consider recommendations for operating rules developed by a qualified nonprofit entity that meets the following requirements:
(A) The entity focuses its mission on administrative simplification.
(B) The entity demonstrates a multi-stakeholder and consensus-based process for development of operating rules, including representation by or participation from health plans, health care providers, vendors, relevant Federal agencies, and other standard development organizations.
(C) The entity has a public set of guiding principles that ensure the operating rules and process are open and transparent, and supports nondiscrimination and conflict of interest policies that demonstrate a commitment to open, fair, and nondiscriminatory practices.
(D) The entity builds on the transaction standards issued under Health Insurance Portability and Accountability Act of 1996.
(E) The entity allows for public review and updates of the operating rules.
(3) Review and recommendations
The National Committee on Vital and Health Statistics shall—
(A) advise the Secretary as to whether a nonprofit entity meets the requirements under paragraph (2);
(B) review the operating rules developed and recommended by such nonprofit entity;
(C) determine whether such operating rules represent a consensus view of the health care stakeholders and are consistent with and do not conflict with other existing standards;
(D) evaluate whether such operating rules are consistent with electronic standards adopted for health information technology; and
(E) submit to the Secretary a recommendation as to whether the Secretary should adopt such operating rules.
(4) Implementation
(A) In general
The Secretary shall adopt operating rules under this subsection, by regulation in accordance with subparagraph (C), following consideration of the operating rules developed by the non-profit entity described in paragraph (2) and the recommendation submitted by the National Committee on Vital and Health Statistics under paragraph (3)(E) and having ensured consultation with providers.
(B) Adoption requirements; effective dates
(i) Eligibility for a health plan and health claim status
The set of operating rules for eligibility for a health plan and health claim status transactions shall be adopted not later than July 1, 2011, in a manner ensuring that such operating rules are effective not later than January 1, 2013, and may allow for the use of a machine readable identification card.
(ii) Electronic funds transfers and health care payment and remittance advice
The set of operating rules for electronic funds transfers and health care payment and remittance advice transactions shall—
(I) allow for automated reconciliation of the electronic payment with the remittance advice; and
(II) be adopted not later than July 1, 2012, in a manner ensuring that such operating rules are effective not later than January 1, 2014.
(iii) Health claims or equivalent encounter information, enrollment and disenrollment in a health plan, health plan premium payments, referral certification and authorization
The set of operating rules for health claims or equivalent encounter information, enrollment and disenrollment in a health plan, health plan premium payments, and referral certification and authorization transactions shall be adopted not later than July 1, 2014, in a manner ensuring that such operating rules are effective not later than January 1, 2016.
(C) Expedited rulemaking
The Secretary shall promulgate an interim final rule applying any standard or operating rule recommended by the National Committee on Vital and Health Statistics pursuant to paragraph (3). The Secretary shall accept and consider public comments on any interim final rule published under this subparagraph for 60 days after the date of such publication.
(h) Compliance
(1) Health plan certification
(A) Eligibility for a health plan, health claim status, electronic funds transfers, health care payment and remittance advice
Not later than December 31, 2013, a health plan shall file a statement with the Secretary, in such form as the Secretary may require, certifying that the data and information systems for such plan are in compliance with any applicable standards (as described under paragraph (7) of
(B) Health claims or equivalent encounter information, enrollment and disenrollment in a health plan, health plan premium payments, health claims attachments, referral certification and authorization
Not later than December 31, 2015, a health plan shall file a statement with the Secretary, in such form as the Secretary may require, certifying that the data and information systems for such plan are in compliance with any applicable standards and associated operating rules for health claims or equivalent encounter information, enrollment and disenrollment in a health plan, health plan premium payments, health claims attachments, and referral certification and authorization, respectively. A health plan shall provide the same level of documentation to certify compliance with such transactions as is required to certify compliance with the transactions specified in subparagraph (A).
(2) Documentation of compliance
A health plan shall provide the Secretary, in such form as the Secretary may require, with adequate documentation of compliance with the standards and operating rules described under paragraph (1). A health plan shall not be considered to have provided adequate documentation and shall not be certified as being in compliance with such standards, unless the health plan—
(A) demonstrates to the Secretary that the plan conducts the electronic transactions specified in paragraph (1) in a manner that fully complies with the regulations of the Secretary; and
(B) provides documentation showing that the plan has completed end-to-end testing for such transactions with their partners, such as hospitals and physicians.
(3) Service contracts
A health plan shall be required to ensure that any entities that provide services pursuant to a contract with such health plan shall comply with any applicable certification and compliance requirements (and provide the Secretary with adequate documentation of such compliance) under this subsection.
(4) Certification by outside entity
The Secretary may designate independent, outside entities to certify that a health plan has complied with the requirements under this subsection, provided that the certification standards employed by such entities are in accordance with any standards or operating rules issued by the Secretary.
(5) Compliance with revised standards and operating rules
(A) In general
A health plan (including entities described under paragraph (3)) shall file a statement with the Secretary, in such form as the Secretary may require, certifying that the data and information systems for such plan are in compliance with any applicable revised standards and associated operating rules under this subsection for any interim final rule promulgated by the Secretary under subsection (i) that—
(i) amends any standard or operating rule described under paragraph (1) of this subsection; or
(ii) establishes a standard (as described under subsection (a)(1)(B)) or associated operating rules (as described under subsection (i)(5)) for any other financial and administrative transactions.
(B) Date of compliance
A health plan shall comply with such requirements not later than the effective date of the applicable standard or operating rule.
(6) Audits of health plans
The Secretary shall conduct periodic audits to ensure that health plans (including entities described under paragraph (3)) are in compliance with any standards and operating rules that are described under paragraph (1) or subsection (i)(5).
(i) Review and amendment of standards and operating rules
(1) Establishment
Not later than January 1, 2014, the Secretary shall establish a review committee (as described under paragraph (4)).
(2) Evaluations and reports
(A) Hearings
Not later than April 1, 2014, and not less than biennially thereafter, the Secretary, acting through the review committee, shall conduct hearings to evaluate and review the adopted standards and operating rules established under this section.
(B) Report
Not later than July 1, 2014, and not less than biennially thereafter, the review committee shall provide recommendations for updating and improving such standards and operating rules. The review committee shall recommend a single set of operating rules per transaction standard and maintain the goal of creating as much uniformity as possible in the implementation of the electronic standards.
(3) Interim final rulemaking
(A) In general
Any recommendations to amend adopted standards and operating rules that have been approved by the review committee and reported to the Secretary under paragraph (2)(B) shall be adopted by the Secretary through promulgation of an interim final rule not later than 90 days after receipt of the committee's report.
(B) Public comment
(i) Public comment period
The Secretary shall accept and consider public comments on any interim final rule published under this paragraph for 60 days after the date of such publication.
(ii) Effective date
The effective date of any amendment to existing standards or operating rules that is adopted through an interim final rule published under this paragraph shall be 25 months following the close of such public comment period.
(4) Review committee
(A) Definition
For the purposes of this subsection, the term "review committee' means a committee chartered by or within the Department of Health and Human services that has been designated by the Secretary to carry out this subsection, including—
(i) the National Committee on Vital and Health Statistics; or
(ii) any appropriate committee as determined by the Secretary.
(B) Coordination of HIT standards
In developing recommendations under this subsection, the review committee shall ensure coordination, as appropriate, with the standards that support the certified electronic health record technology approved by the Office of the National Coordinator for Health Information Technology.
(5) Operating rules for other standards adopted by the Secretary
The Secretary shall adopt a single set of operating rules (pursuant to the process described under subsection (g)) for any transaction for which a standard had been adopted pursuant to subsection (a)(1)(B).
(j) Penalties
(1) Penalty fee
(A) In general
Not later than April 1, 2014, and annually thereafter, the Secretary shall assess a penalty fee (as determined under subparagraph (B)) against a health plan that has failed to meet the requirements under subsection (h) with respect to certification and documentation of compliance with—
(i) the standards and associated operating rules described under paragraph (1) of such subsection; and
(ii) a standard (as described under subsection (a)(1)(B)) and associated operating rules (as described under subsection (i)(5)) for any other financial and administrative transactions.
(B) Fee amount
Subject to subparagraphs (C), (D), and (E), the Secretary shall assess a penalty fee against a health plan in the amount of $1 per covered life until certification is complete. The penalty shall be assessed per person covered by the plan for which its data systems for major medical policies are not in compliance and shall be imposed against the health plan for each day that the plan is not in compliance with the requirements under subsection (h).
(C) Additional penalty for misrepresentation
A health plan that knowingly provides inaccurate or incomplete information in a statement of certification or documentation of compliance under subsection (h) shall be subject to a penalty fee that is double the amount that would otherwise be imposed under this subsection.
(D) Annual fee increase
The amount of the penalty fee imposed under this subsection shall be increased on an annual basis by the annual percentage increase in total national health care expenditures, as determined by the Secretary.
(E) Penalty limit
A penalty fee assessed against a health plan under this subsection shall not exceed, on an annual basis—
(i) an amount equal to $20 per covered life under such plan; or
(ii) an amount equal to $40 per covered life under the plan if such plan has knowingly provided inaccurate or incomplete information (as described under subparagraph (C)).
(F) Determination of covered individuals
The Secretary shall determine the number of covered lives under a health plan based upon the most recent statements and filings that have been submitted by such plan to the Securities and Exchange Commission.
(2) Notice and dispute procedure
The Secretary shall establish a procedure for assessment of penalty fees under this subsection that provides a health plan with reasonable notice and a dispute resolution procedure prior to provision of a notice of assessment by the Secretary of the Treasury (as described under paragraph (4)(B)).
(3) Penalty fee report
Not later than May 1, 2014, and annually thereafter, the Secretary shall provide the Secretary of the Treasury with a report identifying those health plans that have been assessed a penalty fee under this subsection.
(4) Collection of penalty fee
(A) In general
The Secretary of the Treasury, acting through the Financial Management Service, shall administer the collection of penalty fees from health plans that have been identified by the Secretary in the penalty fee report provided under paragraph (3).
(B) Notice
Not later than August 1, 2014, and annually thereafter, the Secretary of the Treasury shall provide notice to each health plan that has been assessed a penalty fee by the Secretary under this subsection. Such notice shall include the amount of the penalty fee assessed by the Secretary and the due date for payment of such fee to the Secretary of the Treasury (as described in subparagraph (C)).
(C) Payment due date
Payment by a health plan for a penalty fee assessed under this subsection shall be made to the Secretary of the Treasury not later than November 1, 2014, and annually thereafter.
(D) Unpaid penalty fees
Any amount of a penalty fee assessed against a health plan under this subsection for which payment has not been made by the due date provided under subparagraph (C) shall be—
(i) increased by the interest accrued on such amount, as determined pursuant to the underpayment rate established under section 6621 of the Internal Revenue Code of 1986; and
(ii) treated as a past-due, legally enforceable debt owed to a Federal agency for purposes of section 6402(d) of the Internal Revenue Code of 1986.
(E) Administrative fees
Any fee charged or allocated for collection activities conducted by the Financial Management Service will be passed on to a health plan on a pro-rata basis and added to any penalty fee collected from the plan.
(Aug. 14, 1935, ch. 531, title XI, §1173, as added
Editorial Notes
References in Text
The Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (g)(1), (2)(D), is
The Internal Revenue Code of 1986, referred to in subsec. (j)(4)(D)(i), (ii), is classified generally to Title 26, Internal Revenue Code.
Prior Provisions
A prior section 1173 of act Aug. 14, 1935, was classified to
Amendments
2010—Subsec. (a)(1)(B).
Subsec. (a)(2)(J).
Subsec. (a)(4).
Subsec. (a)(5).
Subsecs. (g) to (j).
Statutory Notes and Related Subsidiaries
Guidance on Protected Health Information
Making T–MSIS Data on Substance Use Disorders Available to Researchers
"(1)
"(2)
"(3)
Accessing, Sharing, and Using Health Data for Research Purposes
"(a)
"(1) at a minimum, security and privacy safeguards, consistent with the requirements of the Rule, are maintained by the covered entity and the researcher; and
"(2) the protected health information is not copied or otherwise retained by the researcher.
"(b)
"(1)
"(A) sufficiently describes the purposes such that it would be reasonable for the individual to expect that the protected health information could be used or disclosed for such future research;
"(B) either—
"(i) states that the authorization will expire on a particular date or on the occurrence of a particular event; or
"(ii) states that the authorization will remain valid unless and until it is revoked by the individual; and
"(C) provides instruction to the individual on how to revoke such authorization at any time.
"(2)
"(3)
"(c)
"(1)
"(2)
"(A) relevant Federal agencies, including the National Institutes of Health, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the Office for Civil Rights;
"(B) the research community;
"(C) patients;
"(D) experts in civil rights, such as privacy rights;
"(E) developers of health information technology;
"(F) experts in data privacy and security;
"(G) health care providers;
"(H) bioethicists; and
"(I) other experts and entities, as the Secretary determines appropriate.
"(3)
"(A) address, at a minimum—
"(i) the appropriate manner and timing of authorization, including whether additional notification to the individual should be required when the individual's protected health information will be used or disclosed for such research;
"(ii) opportunities for individuals to set preferences on the manner in which their protected health information is used in research;
"(iii) opportunities for patients to revoke authorization;
"(iv) notification to individuals of a breach in privacy;
"(v) existing gaps in statute, regulation, or policy related to protecting the privacy of individuals, and
"(vi) existing barriers to research related to the current restrictions on the uses and disclosures of protected health information; and
"(B) consider, at a minimum—
"(i) expectations and preferences on how an individual's protected health information is shared and used;
"(ii) issues related to specific subgroups of people, such as children, incarcerated individuals, and individuals with a cognitive or intellectual disability impacting capacity to consent;
"(iii) relevant Federal and State laws;
"(iv) models of facilitating data access and levels of data access, including data segmentation, where applicable;
"(v) potential impacts of disclosure and non-disclosure of protected health information on access to health care services; and
"(vi) the potential uses of such data.
"(4)
"(5)
"(d)
"(1)
"(2)
Clarification on Permitted Uses and Disclosures of Protected Health Information
"(a)
"(b)
"(1)
"(2)
"(A) require the consent of the patient;
"(B) require providing the patient with an opportunity to object;
"(C) are based on the exercise of professional judgment regarding whether the patient would object when the opportunity to object cannot practicably be provided because of the incapacity of the patient or an emergency treatment circumstance; and
"(D) are determined, based on the exercise of professional judgment, to be in the best interest of the patient when the patient is not present or otherwise incapacitated.
"(3)
"(A) communicating with a family member of the patient, caregiver of the patient, or other individual, to the extent that such family member, caregiver, or individual is involved in the care of the patient;
"(B) in the case that the patient is an adult, communicating with a family member of the patient, caregiver of the patient, or other individual involved in the care of the patient;
"(C) in the case that the patient is a minor, communicating with the parent or caregiver of the patient;
"(D) involving the family members or caregivers of the patient, or others involved in the patient's care or care plan, including facilitating treatment and medication adherence;
"(E) listening to the patient, or receiving information with respect to the patient from the family or caregiver of the patient;
"(F) communicating with family members of the patient, caregivers of the patient, law enforcement, or others when the patient presents a serious and imminent threat of harm to self or others; and
"(G) communicating to law enforcement and family members or caregivers of the patient about the admission of the patient to receive care at, or the release of a patient from, a facility for an emergency psychiatric hold or involuntary treatment."
Development and Dissemination of Model Training Programs
"(a)
"(1) Model programs and materials for training health care providers (including physicians, emergency medical personnel, psychiatrists, including child and adolescent psychiatrists, psychologists, counselors, therapists, nurse practitioners, physician assistants, behavioral health facilities and clinics, care managers, and hospitals, including individuals such as general counsels or regulatory compliance staff who are responsible for establishing provider privacy policies) regarding the permitted uses and disclosures, consistent with the standards governing the privacy and security of individually identifiable health information promulgated by the Secretary under part C of title XI of the Social Security Act (
"(2) A model program and materials for training patients and their families regarding their rights to protect and obtain information under the standards and regulations specified in paragraph (1).
"(b)
"(1) periodically review and update the model programs and materials identified or developed under subsection (a); and
"(2) disseminate the updated model programs and materials to the individuals described in subsection (a).
"(c)
"(d)
"(e)
"(1) $4,000,000 for fiscal year 2018;
"(2) $2,000,000 for each of fiscal years 2019 and 2020; and
"(3) $1,000,000 for each of fiscal years 2021 and 2022."
Delay in Transition From ICD–9 to ICD–10 Code Sets
Promulgation of Rules
"(1)
"(2)
"(3)
Activities and Items for Initial Consideration; ICD Coding Crosswalks
"(b)
"(1) Whether the application process, including the use of a uniform application form, for enrollment of health care providers by health plans could be made electronic and standardized.
"(2) Whether standards and operating rules described in section 1173 of the Social Security Act should apply to the health care transactions of automobile insurance, worker's compensation, and other programs or persons not described in section 1172(a) of such Act (
"(3) Whether standardized forms could apply to financial audits required by health plans, Federal and State agencies (including State auditors, the Office of the Inspector General of the Department of Health and Human Services, and the Centers for Medicare & Medicaid Services), and other relevant entities as determined appropriate by the Secretary.
"(4) Whether there could be greater transparency and consistency of methodologies and processes used to establish claim edits used by health plans (as described in section 1171(5) of the Social Security Act (
"(5) Whether health plans should be required to publish their timeliness of payment rules.
"(c) ICD
"(1) ICD–9
"(2)
"(3)
"(4)
Recommendations With Respect to Privacy of Certain Health Information
"(a)
"(b)
"(1) The rights that an individual who is a subject of individually identifiable health information should have.
"(2) The procedures that should be established for the exercise of such rights.
"(3) The uses and disclosures of such information that should be authorized or required.
"(c)
"(1)
"(2)
"(d)
"(1) the National Committee on Vital and Health Statistics established under section 306(k) of the Public Health Service Act (
"(2) the Attorney General."
Executive Documents
Ex. Ord. No. 13181. To Protect the Privacy of Protected Health Information in Oversight Investigations
Ex. Ord. No. 13181, Dec. 20, 2000, 65 F.R. 81321, provided:
By the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, it is ordered as follows:
It shall be the policy of the Government of the United States that law enforcement may not use protected health information concerning an individual that is discovered during the course of health oversight activities for unrelated civil, administrative, or criminal investigations of a non-health oversight matter, except when the balance of relevant factors weighs clearly in favor of its use. That is, protected health information may not be so used unless the public interest and the need for disclosure clearly outweigh the potential for injury to the patient, to the physician-patient relationship, and to the treatment services. Protecting the privacy of patients' protected health information promotes trust in the health care system. It improves the quality of health care by fostering an environment in which patients can feel more comfortable in providing health care professionals with accurate and detailed information about their personal health. In order to provide greater protections to patients' privacy, the Department of Health and Human Services is issuing final regulations concerning the confidentiality of individually identifiable health information under the Health Insurance Portability and Accountability Act of 1996 [
Under the new HIPAA regulations, health oversight investigators will appropriately have ready access to medical records for oversight purposes. Health oversight investigators generally do not seek access to the medical records of a particular patient, but instead review large numbers of records to determine whether a health care provider or organization is violating the law, such as through fraud against the Medicare system. Access to many health records is often necessary in order to gain enough evidence to detect and bring enforcement actions against fraud in the health care system. Stricter rules apply under the HIPAA regulations, however, when law enforcement officials seek protected health information in order to investigate criminal activity outside of the health oversight realm.
In the course of their efforts to protect the health care system, health oversight investigators may also uncover evidence of wrongdoing unrelated to the health care system, such as evidence of criminal conduct by an individual who has sought health care. For records containing that evidence, the issue thus arises whether the information should be available for law enforcement purposes under the less restrictive oversight rules or the more restrictive rules that apply to non-oversight criminal investigations.
A similar issue has arisen in other circumstances. Under
(a) "Health oversight activities" shall include the oversight activities enumerated in the regulations concerning the confidentiality of individually identifiable health information promulgated by the Secretary of Health and Human Services pursuant to the "Health Insurance Portability and Accountability Act of 1996," as amended [
(b) "Protected health information" shall have the meaning ascribed to it in the regulations concerning the confidentiality of individually identifiable health information promulgated by the Secretary of Health and Human Services pursuant to the "Health Insurance Portability and Accountability Act of 1996," as amended.
(c) "Injury to the patient" includes injury to the privacy interests of the patient.
(a) Protected health information concerning an individual patient discovered during the course of health oversight activities shall not be used against that individual patient in an unrelated civil, administrative, or criminal investigation of a non-health oversight matter unless the Deputy Attorney General of the U.S Department of Justice, or insofar as the protected health information involves members of the Armed Forces, the General Counsel of the U.S. Department of Defense, has authorized such use.
(b) In assessing whether protected health information should be used under subparagraph (a) of this section, the Deputy Attorney General shall permit such use upon concluding that the balance of relevant factors weighs clearly in favor of its use. That is, the Deputy Attorney General shall permit disclosure if the public interest and the need for disclosure clearly outweigh the potential for injury to the patient, to the physician-patient relationship, and to the treatment services.
(c) Upon the decision to use protected health information under subparagraph (a) of this section, the Deputy Attorney General, in determining the extent to which this information should be used, shall impose appropriate safeguards against unauthorized use.
(d) On an annual basis, the Department of Justice, in consultation with the Department of Health and Human Services, shall provide to the President of the United States a report that includes the following information:
(i) the number of requests made to the Deputy Attorney General for authorization to use protected health information discovered during health oversight activities in a non-health oversight, unrelated investigation;
(ii) the number of requests that were granted as applied for, granted as modified, or denied;
(iii) the agencies that made the applications, and the number of requests made by each agency; and
(iv) the uses for which the protected health information was authorized.
(e) The General Counsel of the U.S. Department of Defense will comply with the requirements of subparagraphs (b), (c), and (d), above. The General Counsel also will prepare a report, consistent with the requirements of subparagraphs (d)(i) through (d)(iv), above, and will forward it to the Department of Justice where it will be incorporated into the Department's annual report to the President.
(a) Nothing in this Executive Order shall place a restriction on the derivative use of protected health information that was obtained by a law enforcement agency in a non-health oversight investigation.
(b) Nothing in this Executive Order shall be interpreted to place a restriction on a duty imposed by statute.
(c) Nothing in this Executive Order shall place any additional limitation on the derivative use of health information obtained by the Attorney General pursuant to the provisions of
(d) This order does not create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, the officers and employees, or any other person.
William J. Clinton.
§1320d–3. Timetables for adoption of standards
(a) Initial standards
The Secretary shall carry out
(b) Additions and modifications to standards
(1) In general
Except as provided in paragraph (2), the Secretary shall review the standards adopted under
(2) Special rules
(A) First 12-month period
Except with respect to additions and modifications to code sets under subparagraph (B), the Secretary may not adopt any modification to a standard adopted under this part during the 12-month period beginning on the date the standard is initially adopted, unless the Secretary determines that the modification is necessary in order to permit compliance with the standard.
(B) Additions and modifications to code sets
(i) In general
The Secretary shall ensure that procedures exist for the routine maintenance, testing, enhancement, and expansion of code sets.
(ii) Additional rules
If a code set is modified under this subsection, the modified code set shall include instructions on how data elements of health information that were encoded prior to the modification may be converted or translated so as to preserve the informational value of the data elements that existed before the modification. Any modification to a code set under this subsection shall be implemented in a manner that minimizes the disruption and cost of complying with such modification.
(Aug. 14, 1935, ch. 531, title XI, §1174, as added
§1320d–4. Requirements
(a) Conduct of transactions by plans
(1) In general
If a person desires to conduct a transaction referred to in
(A) the health plan may not refuse to conduct such transaction as a standard transaction;
(B) the insurance plan may not delay such transaction, or otherwise adversely affect, or attempt to adversely affect, the person or the transaction on the ground that the transaction is a standard transaction; and
(C) the information transmitted and received in connection with the transaction shall be in the form of standard data elements of health information.
(2) Satisfaction of requirements
A health plan may satisfy the requirements under paragraph (1) by—
(A) directly transmitting and receiving standard data elements of health information; or
(B) submitting nonstandard data elements to a health care clearinghouse for processing into standard data elements and transmission by the health care clearinghouse, and receiving standard data elements through the health care clearinghouse.
(3) Timetable for compliance
Paragraph (1) shall not be construed to require a health plan to comply with any standard, implementation specification, or modification to a standard or specification adopted or established by the Secretary under
(b) Compliance with standards
(1) Initial compliance
(A) In general
Not later than 24 months after the date on which an initial standard or implementation specification is adopted or established under
(B) Special rule for small health plans
In the case of a small health plan, paragraph (1) shall be applied by substituting "36 months" for "24 months". For purposes of this subsection, the Secretary shall determine the plans that qualify as small health plans.
(2) Compliance with modified standards
If the Secretary adopts a modification to a standard or implementation specification under this part, each person to whom the standard or implementation specification applies shall comply with the modified standard or implementation specification at such time as the Secretary determines appropriate, taking into account the time needed to comply due to the nature and extent of the modification. The time determined appropriate under the preceding sentence may not be earlier than the last day of the 180-day period beginning on the date such modification is adopted. The Secretary may extend the time for compliance for small health plans, if the Secretary determines that such extension is appropriate.
(3) Construction
Nothing in this subsection shall be construed to prohibit any person from complying with a standard or specification by—
(A) submitting nonstandard data elements to a health care clearinghouse for processing into standard data elements and transmission by the health care clearinghouse; or
(B) receiving standard data elements through a health care clearinghouse.
(Aug. 14, 1935, ch. 531, title XI, §1175, as added
Statutory Notes and Related Subsidiaries
Extension of Deadline for Covered Entities Submitting Compliance Plans
"(a)
"(1)
"(2)
"(A) An analysis reflecting the extent to which, and the reasons why, the person is not in compliance.
"(B) A budget, schedule, work plan, and implementation strategy for achieving compliance.
"(C) Whether the person plans to use or might use a contractor or other vendor to assist the person in achieving compliance.
"(D) A timeframe for testing that begins not later than April 16, 2003.
"(3)
"(4)
"(5)
"(A)
"(i)
"(ii)
"(B)
"(C)
"(i) described in section 1172(c)(3)(B) of the Social Security Act (
"(ii) designated by the Secretary of Health and Human Services under section 162.910(a) of title 45, Code of Federal Regulations.
"(D)
"(i)
"(I) trade secrets;
"(II) commercial or financial information that is privileged or confidential; and
"(III) other information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
"(ii)
"(6)
"(A)
"(B)
"(C)
"(D)
"(i) submits a plan in accordance with paragraph (2); or
"(ii) who is in compliance with the applicable requirements of subparts I through R of part 162 of title 45, Code of Federal Regulations, on or before October 16, 2002.
"(b)
"(1)
"(A) as modifying the October 16, 2003, deadline for a small health plan to comply with the requirements of subparts I through R of part 162 of title 45, Code of Federal Regulations; or
"(B) as modifying—
"(i) the April 14, 2003, deadline for a health care provider, a health plan (other than a small health plan), or a health care clearinghouse to comply with the requirements of subpart E of part 164 of title 45, Code of Federal Regulations; or
"(ii) the April 14, 2004, deadline for a small health plan to comply with the requirements of such subpart.
"(2)
"(A)
"(B)
"(C)
"(i) A health care claims or equivalent encounter information transaction.
"(ii) A health care payment and remittance advice transaction.
"(iii) A coordination of benefits transaction.
"(iv) A health care claim status transaction.
"(v) An enrollment and disenrollment in a health plan transaction.
"(vi) An eligibility for a health plan transaction.
"(vii) A health plan premium payments transaction.
"(viii) A referral certification and authorization transaction.
"(c)
"(1) the terms 'health care provider', 'health plan', and 'health care clearinghouse' have the meaning given those terms in section 1171 of the Social Security Act (
"(2) the terms 'small health plan' and 'transaction' have the meaning given those terms in section 160.103 of title 45, Code of Federal Regulations; and
"(3) the terms 'health care claims or equivalent encounter information transaction', 'health care payment and remittance advice transaction', 'coordination of benefits transaction', 'health care claim status transaction', 'enrollment and disenrollment in a health plan transaction', 'eligibility for a health plan transaction', 'health plan premium payments transaction', and 'referral certification and authorization transaction' have the meanings given those terms in sections 162.1101, 162.1601, 162.1801, 162.1401, 162.1501, 162.1201, 162.1701, and 162.1301 of title 45, Code of Federal Regulations, respectively."
§1320d–5. General penalty for failure to comply with requirements and standards
(a) General penalty
(1) In general
Except as provided in subsection (b), the Secretary shall impose on any person who violates a provision of this part—
(A) in the case of a violation of such provision in which it is established that the person did not know (and by exercising reasonable diligence would not have known) that such person violated such provision, a penalty for each such violation of an amount that is at least the amount described in paragraph (3)(A) but not to exceed the amount described in paragraph (3)(D);
(B) in the case of a violation of such provision in which it is established that the violation was due to reasonable cause and not to willful neglect, a penalty for each such violation of an amount that is at least the amount described in paragraph (3)(B) but not to exceed the amount described in paragraph (3)(D); and
(C) in the case of a violation of such provision in which it is established that the violation was due to willful neglect—
(i) if the violation is corrected as described in subsection (b)(3)(A),1 a penalty in an amount that is at least the amount described in paragraph (3)(C) but not to exceed the amount described in paragraph (3)(D); and
(ii) if the violation is not corrected as described in such subsection, a penalty in an amount that is at least the amount described in paragraph (3)(D).
In determining the amount of a penalty under this section for a violation, the Secretary shall base such determination on the nature and extent of the violation and the nature and extent of the harm resulting from such violation.
(2) Procedures
The provisions of
(3) Tiers of penalties described
For purposes of paragraph (1), with respect to a violation by a person of a provision of this part—
(A) the amount described in this subparagraph is $100 for each such violation, except that the total amount imposed on the person for all such violations of an identical requirement or prohibition during a calendar year may not exceed $25,000;
(B) the amount described in this subparagraph is $1,000 for each such violation, except that the total amount imposed on the person for all such violations of an identical requirement or prohibition during a calendar year may not exceed $100,000;
(C) the amount described in this subparagraph is $10,000 for each such violation, except that the total amount imposed on the person for all such violations of an identical requirement or prohibition during a calendar year may not exceed $250,000; and
(D) the amount described in this subparagraph is $50,000 for each such violation, except that the total amount imposed on the person for all such violations of an identical requirement or prohibition during a calendar year may not exceed $1,500,000.
(b) Limitations
(1) Offenses otherwise punishable
No penalty may be imposed under subsection (a) and no damages obtained under subsection (d) with respect to an act if a penalty has been imposed under
(2) Failures due to reasonable cause
(A) In general
Except as provided in subparagraph (B) or subsection (a)(1)(C), no penalty may be imposed under subsection (a) and no damages obtained under subsection (d) if the failure to comply is corrected during the 30-day period beginning on the first date the person liable for the penalty or damages knew, or by exercising reasonable diligence would have known, that the failure to comply occurred.
(B) Extension of period
(i) No penalty
With respect to the imposition of a penalty by the Secretary under subsection (a), the period referred to in subparagraph (A) may be extended as determined appropriate by the Secretary based on the nature and extent of the failure to comply.
(ii) Assistance
If the Secretary determines that a person failed to comply because the person was unable to comply, the Secretary may provide technical assistance to the person during the period described in subparagraph (A). Such assistance shall be provided in any manner determined appropriate by the Secretary.
(3) Reduction
In the case of a failure to comply which is due to reasonable cause and not to willful neglect, any penalty under subsection (a) and any damages under subsection (d) that is 2 not entirely waived under paragraph (3) 3 may be waived to the extent that the payment of such penalty 4 would be excessive relative to the compliance failure involved.
(c) Noncompliance due to willful neglect
(1) In general
A violation of a provision of this part due to willful neglect is a violation for which the Secretary is required to impose a penalty under subsection (a)(1).
(2) Required investigation
For purposes of paragraph (1), the Secretary shall formally investigate any complaint of a violation of a provision of this part if a preliminary investigation of the facts of the complaint indicate such a possible violation due to willful neglect.
(d) Enforcement by State attorneys general
(1) Civil action
Except as provided in subsection (b), in any case in which the attorney general of a State has reason to believe that an interest of one or more of the residents of that State has been or is threatened or adversely affected by any person who violates a provision of this part, the attorney general of the State, as parens patriae, may bring a civil action on behalf of such residents of the State in a district court of the United States of appropriate jurisdiction—
(A) to enjoin further such violation by the defendant; or
(B) to obtain damages on behalf of such residents of the State, in an amount equal to the amount determined under paragraph (2).
(2) Statutory damages
(A) In general
For purposes of paragraph (1)(B), the amount determined under this paragraph is the amount calculated by multiplying the number of violations by up to $100. For purposes of the preceding sentence, in the case of a continuing violation, the number of violations shall be determined consistent with the HIPAA privacy regulations (as defined in
(B) Limitation
The total amount of damages imposed on the person for all violations of an identical requirement or prohibition during a calendar year may not exceed $25,000.
(C) Reduction of damages
In assessing damages under subparagraph (A), the court may consider the factors the Secretary may consider in determining the amount of a civil money penalty under subsection (a) under the HIPAA privacy regulations.
(3) Attorney fees
In the case of any successful action under paragraph (1), the court, in its discretion, may award the costs of the action and reasonable attorney fees to the State.
(4) Notice to Secretary
The State shall serve prior written notice of any action under paragraph (1) upon the Secretary and provide the Secretary with a copy of its complaint, except in any case in which such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Secretary shall have the right—
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters arising therein; and
(C) to file petitions for appeal.
(5) Construction
For purposes of bringing any civil action under paragraph (1), nothing in this section shall be construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the laws of that State.
(6) Venue; service of process
(A) Venue
Any action brought under paragraph (1) may be brought in the district court of the United States that meets applicable requirements relating to venue under
(B) Service of process
In an action brought under paragraph (1), process may be served in any district in which the defendant—
(i) is an inhabitant; or
(ii) maintains a physical place of business.
(7) Limitation on State action while Federal action is pending
If the Secretary has instituted an action against a person under subsection (a) with respect to a specific violation of this part, no State attorney general may bring an action under this subsection against the person with respect to such violation during the pendency of that action.
(8) Application of CMP statute of limitation
A civil action may not be instituted with respect to a violation of this part unless an action to impose a civil money penalty may be instituted under subsection (a) with respect to such violation consistent with the second sentence of
(e) Allowing continued use of corrective action
Nothing in this section shall be construed as preventing the Office for Civil Rights of the Department of Health and Human Services from continuing, in its discretion, to use corrective action without a penalty in cases where the person did not know (and by exercising reasonable diligence would not have known) of the violation involved.
(Aug. 14, 1935, ch. 531, title XI, §1176, as added
Editorial Notes
Amendments
2009—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(2)(A).
"(i) the failure to comply was due to reasonable cause and not to willful neglect; and
"(ii) the failure to comply is corrected".
Subsec. (b)(2)(B).
Subsec. (b)(2)(B)(i).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
Amendment by
Amendment by section 13410(a)(1) of
Amendment by section 13410(d)(1)–(3) of
Amendment by section 13410(e)(1), (2) of
1 So in original. Probably should be "(b)(2)(A),".
2 So in original. Probably should be "are".
3 So in original. Probably should be "(2)".
4 So in original. The words "or damages" probably should appear after "penalty".
§1320d–6. Wrongful disclosure of individually identifiable health information
(a) Offense
A person who knowingly and in violation of this part—
(1) uses or causes to be used a unique health identifier;
(2) obtains individually identifiable health information relating to an individual; or
(3) discloses individually identifiable health information to another person,
shall be punished as provided in subsection (b). For purposes of the previous sentence, a person (including an employee or other individual) shall be considered to have obtained or disclosed individually identifiable health information in violation of this part if the information is maintained by a covered entity (as defined in the HIPAA privacy regulation described in
(b) Penalties
A person described in subsection (a) shall—
(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;
(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and
(3) if the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.
(Aug. 14, 1935, ch. 531, title XI, §1177, as added
Editorial Notes
Amendments
2009—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
Amendment by
§1320d–7. Effect on State law
(a) General effect
(1) General rule
Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under
(2) Exceptions
A provision or requirement under this part, or a standard or implementation specification adopted or established under
(A) is a provision the Secretary determines—
(i) is necessary—
(I) to prevent fraud and abuse;
(II) to ensure appropriate State regulation of insurance and health plans;
(III) for State reporting on health care delivery or costs; or
(IV) for other purposes; or
(ii) addresses controlled substances; or
(B) subject to section 264(c)(2) of the Health Insurance Portability and Accountability Act of 1996, relates to the privacy of individually identifiable health information.
(b) Public health
Nothing in this part shall be construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of disease or injury, child abuse, birth, or death, public health surveillance, or public health investigation or intervention.
(c) State regulatory reporting
Nothing in this part shall limit the ability of a State to require a health plan to report, or to provide access to, information for management audits, financial audits, program monitoring and evaluation, facility licensure or certification, or individual licensure or certification.
(Aug. 14, 1935, ch. 531, title XI, §1178, as added
Editorial Notes
References in Text
Section 264(c)(2) of the Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (a)(2)(B), is section 264(c)(2) of
§1320d–8. Processing payment transactions by financial institutions
To the extent that an entity is engaged in activities of a financial institution (as defined in
(1) The use or disclosure of information by the entity for authorizing, processing, clearing, settling, billing, transferring, reconciling or collecting, a payment for, or related to, health plan premiums or health care, where such payment is made by any means, including a credit, debit, or other payment card, an account, check, or electronic funds transfer.
(2) The request for, or the use or disclosure of, information by the entity with respect to a payment described in paragraph (1)—
(A) for transferring receivables;
(B) for auditing;
(C) in connection with—
(i) a customer dispute; or
(ii) an inquiry from, or to, a customer;
(D) in a communication to a customer of the entity regarding the customer's transactions, payment card, account, check, or electronic funds transfer;
(E) for reporting to consumer reporting agencies; or
(F) for complying with—
(i) a civil or criminal subpoena; or
(ii) a Federal or State law regulating the entity.
(Aug. 14, 1935, ch. 531, title XI, §1179, as added
§1320d–9. Application of HIPAA regulations to genetic information
(a) In general
The Secretary shall revise the HIPAA privacy regulation (as defined in subsection (b)) so it is consistent with the following:
(1) Genetic information shall be treated as health information described in
(2) The use or disclosure by a covered entity that is a group health plan, health insurance issuer that issues health insurance coverage, or issuer of a medicare supplemental policy of protected health information that is genetic information about an individual for underwriting purposes under the group health plan, health insurance coverage, or medicare supplemental policy shall not be a permitted use or disclosure.
(b) Definitions
For purposes of this section:
(1) Genetic information; genetic test; family member
The terms "genetic information", "genetic test", and "family member" have the meanings given such terms in
(2) Group health plan; health insurance coverage; medicare supplemental policy
The terms "group health plan" and "health insurance coverage" have the meanings given such terms under
(3) HIPAA privacy regulation
The term "HIPAA privacy regulation" means the regulations promulgated by the Secretary under this part and section 264 of the Health Insurance Portability and Accountability Act of 1996 (
(4) Underwriting purposes
The term "underwriting purposes" means, with respect to a group health plan, health insurance coverage, or a medicare supplemental policy—
(A) rules for, or determination of, eligibility (including enrollment and continued eligibility) for, or determination of, benefits under the plan, coverage, or policy;
(B) the computation of premium or contribution amounts under the plan, coverage, or policy;
(C) the application of any pre-existing condition exclusion under the plan, coverage, or policy; and
(D) other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits.
(c) Procedure
The revisions under subsection (a) shall be made by notice in the Federal Register published not later than 60 days after May 21, 2008, and shall be effective upon publication, without opportunity for any prior public comment, but may be revised, consistent with this section, after opportunity for public comment.
(d) Enforcement
In addition to any other sanctions or remedies that may be available under law, a covered entity that is a group health plan, health insurance issuer, or issuer of a medicare supplemental policy and that violates the HIPAA privacy regulation (as revised under subsection (a) or otherwise) with respect to the use or disclosure of genetic information shall be subject to the penalties described in
(Aug. 14, 1935, ch. 531, title XI, §1180, as added
Editorial Notes
References in Text
The Genetic Information Nondiscrimination Act of 2007, referred to in subsec. (b)(1), probably means the Genetic Information Nondiscrimination Act of 2008,
Section 264 of the Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (b)(3), is section 264 of
Statutory Notes and Related Subsidiaries
Effective Date
Regulations
1 See References in Text note below.
Part D—Comparative Clinical Effectiveness Research
§1320e. Comparative clinical effectiveness research
(a) Definitions
In this section:
(1) Board
The term "Board" means the Board of Governors established under subsection (f).
(2) Comparative clinical effectiveness research; research
(A) In general
The terms "comparative clinical effectiveness research" and "research" mean research evaluating and comparing health outcomes and the clinical effectiveness, risks, and benefits of 2 or more medical treatments, services, and items described in subparagraph (B).
(B) Medical treatments, services, and items described
The medical treatments, services, and items described in this subparagraph are health care interventions, protocols for treatment, care management, and delivery, procedures, medical devices, diagnostic tools, pharmaceuticals (including drugs and biologicals), integrative health practices, and any other strategies or items being used in the treatment, management, and diagnosis of, or prevention of illness or injury in, individuals.
(3) Conflict of interest
The term "conflict of interest" means an association, including a financial or personal association, that have 1 the potential to bias or have 1 the appearance of biasing an individual's decisions in matters related to the Institute or the conduct of activities under this section.
(4) Real conflict of interest
The term "real conflict of interest" means any instance where a member of the Board, the methodology committee established under subsection (d)(6), or an advisory panel appointed under subsection (d)(4), or a close relative of such member, has received or could receive either of the following:
(A) A direct financial benefit of any amount deriving from the result or findings of a study conducted under this section.
(B) A financial benefit from individuals or companies that own or manufacture medical treatments, services, or items to be studied under this section that in the aggregate exceeds $10,000 per year. For purposes of the preceding sentence, a financial benefit includes honoraria, fees, stock, or other financial benefit and the current value of the member or close relative's already existing stock holdings, in addition to any direct financial benefit deriving from the results or findings of a study conducted under this section.
(b) Patient-Centered Outcomes Research Institute
(1) Establishment
There is authorized to be established a nonprofit corporation, to be known as the "Patient-Centered Outcomes Research Institute" (referred to in this section as the "Institute") which is neither an agency nor establishment of the United States Government.
(2) Application of provisions
The Institute shall be subject to the provisions of this section, and, to the extent consistent with this section, to the District of Columbia Nonprofit Corporation Act.
(3) Funding of comparative clinical effectiveness research
For fiscal year 2010 and each subsequent fiscal year, amounts in the Patient-Centered Outcomes Research Trust Fund (referred to in this section as the "PCORTF") under section 9511 of the Internal Revenue Code of 1986 shall be available, without further appropriation, to the Institute to carry out this section.
(c) Purpose
The purpose of the Institute is to assist patients, clinicians, purchasers, and policy-makers in making informed health decisions by advancing the quality and relevance of evidence concerning the manner in which diseases, disorders, and other health conditions can effectively and appropriately be prevented, diagnosed, treated, monitored, and managed through research and evidence synthesis that considers variations in patient subpopulations, and the dissemination of research findings with respect to the relative health outcomes, clinical effectiveness, and appropriateness of the medical treatments, services, and items described in subsection (a)(2)(B).
(d) Duties
(1) Identifying research priorities and establishing research project agenda
(A) Identifying research priorities
The Institute shall identify national priorities for research, taking into account factors of disease incidence, prevalence, and burden in the United States (with emphasis on chronic conditions), gaps in evidence in terms of clinical outcomes, practice variations and health disparities in terms of delivery and outcomes of care, the potential for new evidence to improve patient health, well-being, and the quality of care, the effect on national expenditures associated with a health care treatment, strategy, or health conditions, as well as patient needs, outcomes, and preferences, the relevance to patients and clinicians in making informed health decisions, and priorities in the National Strategy for quality care established under section 399H 2 of the Public Health Service Act that are consistent with this section. Such national priorities shall include research with respect to intellectual and developmental disabilities and maternal mortality. Such priorities should reflect a balance between long-term priorities and short-term priorities, and be responsive to changes in medical evidence and in health care treatments.
(B) Establishing research project agenda
The Institute shall establish and update a research project agenda for research to address the priorities identified under subparagraph (A), taking into consideration the types of research that might address each priority and the relative value (determined based on the cost of conducting research compared to the potential usefulness of the information produced by research) associated with the different types of research, and such other factors as the Institute determines appropriate.
(2) Carrying out research project agenda
(A) Research
The Institute shall carry out the research project agenda established under paragraph (1)(B) in accordance with the methodological standards adopted under paragraph (9) using methods, including the following:
(i) Systematic reviews and assessments of existing and future research and evidence including original research conducted subsequent to March 23, 2010.
(ii) Primary research, such as randomized clinical trials, molecularly informed trials, and observational studies.
(iii) Any other methodologies recommended by the methodology committee established under paragraph (6) that are adopted by the Board under paragraph (9).
(B) Contracts for the management of funding and conduct of research
(i) Contracts
(I) In general
In accordance with the research project agenda established under paragraph (1)(B), the Institute shall enter into contracts for the management of funding and conduct of research in accordance with the following:
(aa) Appropriate agencies and instrumentalities of the Federal Government.
(bb) Appropriate academic research, private sector research, or study-conducting entities.
(II) Preference
In entering into contracts under subclause (I), the Institute shall give preference to the Agency for Healthcare Research and Quality and the National Institutes of Health, but only if the research to be conducted or managed under such contract is authorized by the governing statutes of such Agency or Institutes.
(ii) Conditions for contracts
A contract entered into under this subparagraph shall require that the agency, instrumentality, or other entity—
(I) abide by the transparency and conflicts of interest requirements under subsection (h) that apply to the Institute with respect to the research managed or conducted under such contract;
(II) comply with the methodological standards adopted under paragraph (9) with respect to such research;
(III) consult with the expert advisory panels for clinical trials and rare disease appointed under clauses (ii) and (iii), respectively, of paragraph (4)(A);
(IV) subject to clause (iv), permit a researcher who conducts original research, as described in subparagraph (A)(ii), under the contract for the agency, instrumentality, or other entity to have such research published in a peer-reviewed journal or other publication, as long as the researcher enters into a data use agreement with the Institute for use of the data from the original research, as appropriate;
(V) have appropriate processes in place to manage data privacy and meet ethical standards for the research;
(VI) comply with the requirements of the Institute for making the information available to the public under paragraph (8); and
(VII) comply with other terms and conditions determined necessary by the Institute to carry out the research agenda adopted under paragraph (2).
(iii) Coverage of copayments or coinsurance
A contract entered into under this subparagraph may allow for the coverage of copayments or coinsurance, or allow for other appropriate measures, to the extent that such coverage or other measures are necessary to preserve the validity of a research project, such as in the case where the research project must be blinded.
(iv) Subsequent use of the data
The Institute shall not allow the subsequent use of data from original research in work-for-hire contracts with individuals, entities, or instrumentalities that have a financial interest in the results, unless approved under a data use agreement with the Institute.
(C) Review and update of evidence
The Institute shall review and update evidence on a periodic basis as appropriate.
(D) Taking into account potential differences
Research shall be designed, as appropriate, to take into account the potential for differences in the effectiveness of health care treatments, services, and items as used with various subpopulations, such as racial and ethnic minorities, women, age, and groups of individuals with different comorbidities, genetic and molecular sub-types, or quality of life preferences and include members of such subpopulations as subjects in the research as feasible and appropriate.
(E) Differences in treatment modalities
Research shall be designed, as appropriate, to take into account different characteristics of treatment modalities that may affect research outcomes, such as the phase of the treatment modality in the innovation cycle and the impact of the skill of the operator of the treatment modality.
(F) Consideration of full range of outcomes data
Research shall be designed, as appropriate, to take into account and capture the full range of clinical and patient-centered outcomes relevant to, and that meet the needs of, patients, clinicians, purchasers, and policy-makers in making informed health decisions. In addition to the relative health outcomes and clinical effectiveness, clinical and patient-centered outcomes shall include the potential burdens and economic impacts of the utilization of medical treatments, items, and services on different stakeholders and decision-makers respectively. These potential burdens and economic impacts include medical out-of-pocket costs, including health plan benefit and formulary design, non-medical costs to the patient and family, including caregiving, effects on future costs of care, workplace productivity and absenteeism, and healthcare utilization.
(3) Data collection
(A) In general
The Secretary shall, with appropriate safeguards for privacy, make available to the Institute such data collected by the Centers for Medicare & Medicaid Services under the programs under subchapters XVIII, XIX, and XXI, as well as provide access to the data networks developed under section 937(f) of the Public Health Service Act [
(B) Use of data
The Institute shall only use data provided to the Institute under subparagraph (A) in accordance with laws and regulations governing the release and use of such data, including applicable confidentiality and privacy standards.
(4) Appointing expert advisory panels
(A) Appointment
(i) In general
The Institute may appoint permanent or ad hoc expert advisory panels as determined appropriate to assist in identifying research priorities and establishing the research project agenda under paragraph (1) and for other purposes.
(ii) Expert advisory panels for clinical trials
The Institute shall appoint expert advisory panels in carrying out randomized clinical trials under the research project agenda under paragraph (2)(A)(ii). Such expert advisory panels shall advise the Institute and the agency, instrumentality, or entity conducting the research on the research question involved and the research design or protocol, including important patient subgroups and other parameters of the research. Such panels shall be available as a resource for technical questions that may arise during the conduct of such research.
(iii) Expert advisory panel for rare disease
In the case of a research study for rare disease, the Institute shall appoint an expert advisory panel for purposes of assisting in the design of the research study and determining the relative value and feasibility of conducting the research study.
(B) Composition
An expert advisory panel appointed under subparagraph (A) shall include representatives of practicing and research clinicians, patients, and experts in scientific and health services research, health services delivery, and evidence-based medicine who have experience in the relevant topic, and as appropriate, experts in integrative health and primary prevention strategies. The Institute may include a technical expert of each manufacturer or each medical technology that is included under the relevant topic, project, or category for which the panel is established.
(5) Supporting patient and consumer representatives
The Institute shall provide support and resources to help patient and consumer representatives effectively participate on the Board and expert advisory panels appointed by the Institute under paragraph (4).
(6) Establishing methodology committee
(A) In general
The Institute shall establish a standing methodology committee to carry out the functions described in subparagraph (C).
(B) Appointment and composition
The methodology committee established under subparagraph (A) shall be composed of not more than 15 members appointed by the Board. Members appointed to the methodology committee shall be experts in their scientific field, such as health services research, clinical research, comparative clinical effectiveness research, biostatistics, genomics, and research methodologies. Stakeholders with such expertise may be appointed to the methodology committee. In addition to the members appointed under the first sentence, the Directors of the National Institutes of Health and the Agency for Healthcare Research and Quality (or their designees) shall each be included as members of the methodology committee.
(C) Functions
Subject to subparagraph (D), the methodology committee shall work to develop and improve the science and methods of comparative clinical effectiveness research by, not later than 18 months after the establishment of the Institute, directly or through subcontract, developing and periodically updating the following:
(i) Methodological standards for research. Such methodological standards shall provide specific criteria for internal validity, generalizability, feasibility, and timeliness of research and for health outcomes measures, risk adjustment, and other relevant aspects of research and assessment with respect to the design of research. Any methodological standards developed and updated under this subclause 3 shall be scientifically based and include methods by which new information, data, or advances in technology are considered and incorporated into ongoing research projects by the Institute, as appropriate. The process for developing and updating such standards shall include input from relevant experts, stakeholders, and decisionmakers, and shall provide opportunities for public comment. Such standards shall also include methods by which patient subpopulations can be accounted for and evaluated in different types of research. As appropriate, such standards shall build on existing work on methodological standards for defined categories of health interventions and for each of the major categories of comparative clinical effectiveness research methods (determined as of March 23, 2010).
(ii) A translation table that is designed to provide guidance and act as a reference for the Board to determine research methods that are most likely to address each specific research question.
(D) Consultation and conduct of examinations
The methodology committee may consult and contract with the Institute of Medicine of the National Academies and academic, nonprofit, or other private and governmental entities with relevant expertise to carry out activities described in subparagraph (C) and may consult with relevant stakeholders to carry out such activities.
(E) Reports
The methodology committee shall submit reports to the Board on the committee's performance of the functions described in subparagraph (C). Reports shall contain recommendations for the Institute to adopt methodological standards developed and updated by the methodology committee as well as other actions deemed necessary to comply with such methodological standards.
(7) Providing for a peer-review process for primary research
(A) In general
The Institute shall ensure that there is a process for peer review of primary research described in subparagraph (A)(ii) of paragraph (2) that is conducted under such paragraph. Under such process—
(i) evidence from such primary research shall be reviewed to assess scientific integrity and adherence to methodological standards adopted under paragraph (9); and
(ii) a list of the names of individuals contributing to any peer-review process during the preceding year or years shall be made public and included in annual reports in accordance with paragraph (10)(D).
(B) Composition
Such peer-review process shall be designed in a manner so as to avoid bias and conflicts of interest on the part of the reviewers and shall be composed of experts in the scientific field relevant to the research under review.
(C) Use of existing processes
(i) Processes of another entity
In the case where the Institute enters into a contract or other agreement with another entity for the conduct or management of research under this section, the Institute may utilize the peer-review process of such entity if such process meets the requirements under subparagraphs (A) and (B).
(ii) Processes of appropriate medical journals
The Institute may utilize the peer-review process of appropriate medical journals if such process meets the requirements under subparagraphs (A) and (B).
(8) Release of research findings
(A) In general
The Institute shall, not later than 90 days after the conduct or receipt of research findings under this part, make such research findings available to clinicians, patients, and the general public. The Institute shall ensure that the research findings—
(i) convey the findings of research in a manner that is comprehensible and useful to patients and providers in making health care decisions;
(ii) fully convey findings and discuss considerations specific to certain subpopulations, risk factors, and comorbidities, as appropriate;
(iii) include limitations of the research and what further research may be needed as appropriate;
(iv) do not include practice guidelines, coverage recommendations, payment, or policy recommendations; and
(v) not include any data which would violate the privacy of research participants or any confidentiality agreements made with respect to the use of data under this section.
(B) Definition of research findings
In this paragraph, the term "research findings" means the results of a study or assessment.
(9) Adoption
Subject to subsection (h)(1), the Institute shall adopt the national priorities identified under paragraph (1)(A), the research project agenda established under paragraph (1)(B), the methodological standards developed and updated by the methodology committee under paragraph (6)(C)(i), and any peer-review process provided under paragraph (7) by majority vote. In the case where the Institute does not adopt such processes in accordance with the preceding sentence, the processes shall be referred to the appropriate staff or entity within the Institute (or, in the case of the methodological standards, the methodology committee) for further review.
(10) Annual reports
The Institute shall submit an annual report to Congress and the President, and shall make the annual report available to the public. Such report shall contain—
(A) a description of the activities conducted under this section, research priorities identified under paragraph (1)(A) and methodological standards developed and updated by the methodology committee under paragraph (6)(C)(i) that are adopted under paragraph (9) during the preceding year;
(B) the research project agenda and budget of the Institute for the following year;
(C) any administrative activities conducted by the Institute during the preceding year;
(D) the names of individuals contributing to any peer-review process under paragraph (7), without identifying them with a particular research project; and
(E) any other relevant information (including information on the membership of the Board, expert advisory panels, methodology committee, and the executive staff of the Institute, any conflicts of interest with respect to these individuals, and any bylaws adopted by the Board during the preceding year).
(e) Administration
(1) In general
Subject to paragraph (2), the Board shall carry out the duties of the Institute.
(2) Nondelegable duties
The activities described in subsections (d)(1) and (d)(9) are nondelegable.
(f) Board of Governors
(1) In general
The Institute shall have a Board of Governors, which shall consist of the following members:
(A) The Director of Agency 4 for Healthcare Research and Quality (or the Director's designee).
(B) The Director of the National Institutes of Health (or the Director's designee).
(C) At least nineteen, but no more than twenty-one members appointed by the Comptroller General of the United States as follows:
(i) 3 members representing patients and health care consumers.
(ii) 7 members representing physicians and providers, including 4 members representing physicians (at least 1 of whom is a surgeon), 1 nurse, 1 State-licensed integrative health care practitioner, and 1 representative of a hospital.
(iii) at least 3, but no more than 5 members representing private payers, of whom at least 1 member shall represent health insurance issuers and at least 1 member shall represent employers who self-insure employee benefits.
(iv) 3 members representing pharmaceutical, device, and diagnostic manufacturers or developers.
(v) 1 member representing quality improvement or independent health service researchers.
(vi) 2 members representing the Federal Government or the States, including at least 1 member representing a Federal health program or agency.
(2) Qualifications
The Board shall represent a broad range of perspectives and collectively have scientific expertise in clinical health sciences research, including epidemiology, decisions sciences, health economics, and statistics. In appointing the Board, the Comptroller General of the United States shall consider and disclose any conflicts of interest in accordance with subsection (h)(4)(B). Members of the Board shall be recused from relevant Institute activities in the case where the member (or an immediate family member of such member) has a real conflict of interest directly related to the research project or the matter that could affect or be affected by such participation.
(3) Terms; vacancies
A member of the Board shall be appointed for a term of 6 years, except with respect to members first appointed, whose terms of appointment shall be staggered evenly over 2-year increments to the extent necessary to preserve the evenly staggered terms of the Board..5 Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed for the remainder of that term and thereafter may be eligible for reappointment to a full term. A member may serve after the expiration of that member's term until a successor has been appointed. No individual shall be appointed to the Board for more than 2 terms. Vacancies shall be filled in the same manner as the original appointment was made.
(4) Chairperson and Vice-Chairperson
The Comptroller General of the United States shall designate a Chairperson and Vice Chairperson of the Board from among the members of the Board. Such members shall serve as Chairperson or Vice Chairperson for a period of 3 years.
(5) Compensation
Each member of the Board who is not an officer or employee of the Federal Government shall be entitled to compensation (equivalent to the rate provided for level IV of the Executive Schedule under
(6) Director and staff; experts and consultants
The Board may employ and fix the compensation of an Executive Director and such other personnel as may be necessary to carry out the duties of the Institute and may seek such assistance and support of, or contract with, experts and consultants that may be necessary for the performance of the duties of the Institute.
(7) Meetings and hearings
The Board shall meet and hold hearings at the call of the Chairperson or a majority of its members. Meetings not solely concerning matters of personnel shall be advertised at least 7 days in advance and open to the public. A majority of the Board members shall constitute a quorum, but a lesser number of members may meet and hold hearings.
(g) Financial and governmental oversight
(1) Contract for audit
The Institute shall provide for the conduct of financial audits of the Institute on an annual basis by a private entity with expertise in conducting financial audits.
(2) Review and annual reports
(A) Review
The Comptroller General of the United States shall review the following:
(i) Not less frequently than on an annual basis, the financial audits conducted under paragraph (1).
(ii) Not less frequently than every 5 years, the processes established by the Institute, including the research priorities and the conduct of research projects, in order to determine whether information produced by such research projects is objective and credible, is produced in a manner consistent with the requirements under this section, and is developed through a transparent process.
(iii) Not less frequently than every 5 years, the dissemination and training activities and data networks established under section 937 of the Public Health Service Act [
(iv) Not less frequently than every 5 years, the overall effectiveness of activities conducted under this section and the dissemination, training, and capacity building activities conducted under
(I) A description of those activities and the financial commitments related to research, training, data capacity building, and dissemination and uptake of research findings.
(II) The extent to which the Institute and the Agency for Healthcare Research and Quality have collaborated with stakeholders, including provider and payer organizations, to facilitate the dissemination and uptake of research findings.
(III) An analysis of available data and performance metrics, such as the estimated public availability and dissemination of research findings and uptake and utilization of research findings in clinical guidelines and decision support tools, on the extent to which such research findings are used by health care decision-makers, the effect of the dissemination of such findings on changes in medical practice and reducing practice variation and disparities in health care, and the effect of the research conducted and disseminated on innovation and the health care economy of the United States.
(v) Not later than 8 years after March 23, 2010, the adequacy and use of the funding for the Institute and the activities conducted under section 937 of the Public Health Service Act, including a determination as to whether, based on the utilization of research findings by public and private payers, funding sources for the Patient-Centered Outcomes Research Trust Fund under section 9511 of the Internal Revenue Code of 1986 are appropriate and whether such sources of funding should be continued or adjusted.
(vi) Not less frequently than every 5 years, any barriers that researchers funded by the Institute have encountered in conducting studies or clinical trials, including challenges covering the cost of any medical treatments, services, and items described in subsection (a)(2)(B) for purposes of the research study.
(B) Annual reports
Not later than April 1 of each year, the Comptroller General of the United States shall submit to Congress a report containing the results of the review conducted under subparagraph (A) with respect to the preceding year (or years, if applicable), together with recommendations for such legislation and administrative action as the Comptroller General determines appropriate.
(h) Ensuring transparency, credibility, and access
The Institute shall establish procedures to ensure that the following requirements for ensuring transparency, credibility, and access are met:
(1) Public comment periods
The Institute shall provide for a public comment period of not less than 45 days and not more than 60 days prior to the adoption under subsection (d)(9) of the national priorities identified under subsection (d)(1)(A), the research project agenda established under subsection (d)(1)(B), the methodological standards developed and updated by the methodology committee under subsection (d)(6)(C)(i), and the peer-review process provided under paragraph (7), and after the release of draft findings with respect to systematic reviews of existing research and evidence.
(2) Additional forums
The Institute shall support forums to increase public awareness and obtain and incorporate public input and feedback through media (such as an Internet website) on research priorities, research findings, and other duties, activities, or processes the Institute determines appropriate.
(3) Public availability
The Institute shall make available to the public and disclose through the official public Internet website of the Institute the following:
(A) Information contained in research findings as specified in subsection (d)(9).
(B) The process and methods for the conduct of research, including the identity of the entity and the investigators conducing 6 such research and any conflicts of interests of such parties, any direct or indirect links the entity has to industry, and research protocols, including measures taken, methods of research and analysis, research results, and such other information the Institute determines appropriate) 5 concurrent with the release of research findings.
(C) Notice of public comment periods under paragraph (1), including deadlines for public comments.
(D) Subsequent comments received during each of the public comment periods.
(E) In accordance with applicable laws and processes and as the Institute determines appropriate, proceedings of the Institute.
(4) Disclosure of conflicts of interest
(A) In general
A conflict of interest shall be disclosed in the following manner:
(i) By the Institute in appointing members to an expert advisory panel under subsection (d)(4), in selecting individuals to contribute to any peer-review process under subsection (d)(7), and for employment as executive staff of the Institute.
(ii) By the Board in appointing members of the methodology committee under subsection (d)(6);
(iii) By the Institute in the annual report under subsection (d)(10), except that, in the case of individuals contributing to any such peer review process, such description shall be in a manner such that those individuals cannot be identified with a particular research project.
(B) Manner of disclosure
Conflicts of interest shall be disclosed as described in subparagraph (A) as soon as practicable on the Internet web site of the Institute. The information disclosed under the preceding sentence shall include the type, nature, and magnitude of the interests of the individual involved, except to the extent that the individual recuses himself or herself from participating in the consideration of or any other activity with respect to the study as to which the potential conflict exists.
(i) Rules
The Institute,5 its Board or staff, shall be prohibited from accepting gifts, bequeaths,7 or donations of services or property. In addition, the Institute shall be prohibited from establishing a corporation or generating revenues from activities other than as provided under this section.
(j) Rules of construction
(1) 8 Coverage
Nothing in this section shall be construed—
(A) to permit the Institute to mandate coverage, reimbursement, or other policies for any public or private payer; or
(B) as preventing the Secretary from covering the routine costs of clinical care received by an individual entitled to, or enrolled for, benefits under subchapter XVIII, XIX, or XXI in the case where such individual is participating in a clinical trial and such costs would otherwise be covered under such subchapter with respect to the beneficiary.
(Aug. 14, 1935, ch. 531, title XI, §1181, as added and amended
Editorial Notes
References in Text
The District of Columbia Nonprofit Corporation Act, referred to in subsec. (b)(2), is
The Internal Revenue Code of 1986, referred to in subsecs. (b)(3) and (g)(2)(A)(v), is classified generally to Title 26, Internal Revenue Code.
Section 399H of the Public Health Service Act, referred to in subsec. (d)(1)(A), probably means section 399HH of act July 1, 1944, which is classified to
Amendments
2019—Subsec. (d)(1)(A).
Subsec. (d)(2)(F).
Subsec. (d)(6)(B).
Subsec. (f)(1)(C).
Subsec. (f)(1)(C)(iii).
Subsec. (f)(3).
Subsec. (g)(2)(A)(iv).
Subsec. (g)(2)(A)(vi).
Subsec. (h)(4)(A)(ii).
Subsec. (h)(4)(B).
2010—Subsec. (d)(2)(B)(ii)(IV).
Subsec. (d)(2)(B)(iv).
Subsec. (d)(8)(A)(iv).
Subsec. (f)(1)(C)(ii).
1 So in original. Probably should be "has".
2 See References in Text note below.
3 So in original. Probably should be "clause".
4 So in original. Probably should be preceded by "the".
6 So in original. Probably should be "conducting".
7 So in original. Probably should be "bequests".
8 So in original. No par. (2) has been enacted.
§1320e–1. Limitations on certain uses of comparative clinical effectiveness research
(a) The Secretary may only use evidence and findings from research conducted under
(b) Nothing in
(1) superceding or modifying the coverage of items or services under subchapter XVIII that the Secretary determines are reasonable and necessary under
(2) authorizing the Secretary to deny coverage of items or services under such subchapter solely on the basis of comparative clinical effectiveness research.
(c)(1) The Secretary shall not use evidence or findings from comparative clinical effectiveness research conducted under
(2) Paragraph (1) shall not be construed as preventing the Secretary from using evidence or findings from such comparative clinical effectiveness research in determining coverage, reimbursement, or incentive programs under subchapter XVIII based upon a comparison of the difference in the effectiveness of alternative treatments in extending an individual's life due to the individual's age, disability, or terminal illness.
(d)(1) The Secretary shall not use evidence or findings from comparative clinical effectiveness research conducted under
(2)(A) 1 Paragraph (1) shall not be construed to—
(i) limit the application of differential copayments under subchapter XVIII based on factors such as cost or type of service; or
(ii) prevent the Secretary from using evidence or findings from such comparative clinical effectiveness research in determining coverage, reimbursement, or incentive programs under such subchapter based upon a comparison of the difference in the effectiveness of alternative health care treatments in extending an individual's life due to that individual's age, disability, or terminal illness.
(3) Nothing in the provisions of, or amendments made by the Patient Protection and Affordable Care Act, shall be construed to limit comparative clinical effectiveness research or any other research, evaluation, or dissemination of information concerning the likelihood that a health care treatment will result in disability.
(e) The Patient-Centered Outcomes Research Institute established under
(Aug. 14, 1935, ch. 531, title XI, §1182, as added
Editorial Notes
References in Text
The Patient Protection and Affordable Care Act, referred to in subsec. (d)(3), is
1 So in original. No subpar. (B) has been enacted.
§1320e–2. Trust Fund transfers to Patient-Centered Outcomes Research Trust Fund
(a) In general
The Secretary shall provide for the transfer, from the Federal Hospital Insurance Trust Fund under
(1) For fiscal year 2013, an amount equal to $1 multiplied by the average number of individuals entitled to benefits under part A, or enrolled under part B, of subchapter XVIII during such fiscal year.
(2) For each of fiscal years 2014, 2015, 2016, 2017, 2018, and 2019, an amount equal to $2 multiplied by the average number of individuals entitled to benefits under part A, or enrolled under part B, of subchapter XVIII during such fiscal year.
(b) Adjustments for increases in health care spending
In the case of any fiscal year beginning after September 30, 2014, the dollar amount in effect under subsection (a)(2) for such fiscal year shall be equal to the sum of such dollar amount for the previous fiscal year (determined after the application of this subsection), plus an amount equal to the product of—
(1) such dollar amount for the previous fiscal year, multiplied by
(2) the percentage increase in the projected per capita amount of National Health Expenditures, as most recently published by the Secretary before the beginning of the fiscal year.
(Aug. 14, 1935, ch. 531, title XI, §1183, as added
Editorial Notes
References in Text
The Internal Revenue Code of 1986, referred to in subsec. (a), is classified generally to Title 26, Internal Revenue Code.
§1320e–3. Information exchange with payroll data providers
(a) In general
The Commissioner of Social Security may enter into an information exchange with a payroll data provider for purposes of—
(1) efficiently administering—
(A) monthly insurance benefits under subsections (d)(1)(B)(ii), (d)(6)(A)(ii), (d)(6)(B), (e)(1)(B)(ii), and (f)(1)(B)(ii) of
(B) supplemental security income benefits under subchapter XVI; and
(2) preventing improper payments of such benefits without the need for verification by independent or collateral sources.
(b) Notification requirements
Before entering into an information exchange pursuant to subsection (a), the Commissioner shall publish in the Federal Register a notice describing the information exchange and the extent to which the information received through such exchange is—
(1) relevant and necessary to—
(A) accurately determine entitlement to, and the amount of, benefits described under subparagraph (A) of subsection (a)(1);
(B) accurately determine eligibility for, and the amount of, benefits described in subparagraph (B) of such subsection; and
(C) prevent improper payment of such benefits; and
(2) sufficiently accurate, up-to-date, and complete.
(c) Definitions
For purposes of this section:
(1) Payroll data provider
The term "payroll data provider" means payroll providers, wage verification companies, and other commercial or non-commercial entities that collect and maintain data regarding employment and wages, without regard to whether the entity provides such data for a fee or without cost.
(2) Information exchange
The term "information exchange" means the automated comparison of a system of records maintained by the Commissioner of Social Security with records maintained by a payroll data provider.
(Aug. 14, 1935, ch. 531, title XI, §1184, as added
Statutory Notes and Related Subsidiaries
Effective Date
Section effective one year after Nov. 2, 2015, see section 824(e) of
Regulations
"(1) guidelines for establishing and maintaining information exchanges with payroll providers, pursuant to section 1184 of the Social Security Act [
"(2) beneficiary authorizations;
"(3) reduced wage reporting responsibilities for individuals who authorize the Commissioner to access information held by payroll data providers through an information exchange; and
"(4) procedures for notifying individuals in writing when they become subject to such reduced wage reporting requirements and when such reduced wage reporting requirements no longer apply to them."
Part E—Price Negotiation Program To Lower Prices for Certain High-Priced Single Source Drugs
§1320f. Establishment of program
(a) In general
The Secretary shall establish a Drug Price Negotiation Program (in this part referred to as the "program"). Under the program, with respect to each price applicability period, the Secretary shall—
(1) publish a list of selected drugs in accordance with
(2) enter into agreements with manufacturers of selected drugs with respect to such period, in accordance with
(3) negotiate and, if applicable, renegotiate maximum fair prices for such selected drugs, in accordance with
(4) carry out the publication and administrative duties and compliance monitoring in accordance with
(b) Definitions relating to timing
For purposes of this part:
(1) Initial price applicability year
The term "initial price applicability year" means a year (beginning with 2026).
(2) Price applicability period
The term "price applicability period" means, with respect to a qualifying single source drug, the period beginning with the first initial price applicability year with respect to which such drug is a selected drug and ending with the last year during which the drug is a selected drug.
(3) Selected drug publication date
The term "selected drug publication date" means, with respect to each initial price applicability year, February 1 of the year that begins 2 years prior to such year.
(4) Negotiation period
The term "negotiation period" means, with respect to an initial price applicability year with respect to a selected drug, the period—
(A) beginning on the sooner of—
(i) the date on which the manufacturer of the drug and the Secretary enter into an agreement under
(ii) February 28 following the selected drug publication date with respect to such selected drug; and
(B) ending on November 1 of the year that begins 2 years prior to the initial price applicability year.
(c) Other definitions
For purposes of this part:
(1) Manufacturer
The term "manufacturer" has the meaning given that term in
(2) Maximum fair price eligible individual
The term "maximum fair price eligible individual" means, with respect to a selected drug—
(A) in the case such drug is dispensed to the individual at a pharmacy, by a mail order service, or by another dispenser, an individual who is enrolled in a prescription drug plan under part D of subchapter XVIII or an MA–PD plan under part C of such subchapter if coverage is provided under such plan for such selected drug; and
(B) in the case such drug is furnished or administered to the individual by a hospital, physician, or other provider of services or supplier, an individual who is enrolled under part B of subchapter XVIII, including an individual who is enrolled in an MA plan under part C of such subchapter, if payment may be made under part B for such selected drug.
(3) Maximum fair price
The term "maximum fair price" means, with respect to a year during a price applicability period and with respect to a selected drug (as defined in
(4) Reference product
The term "reference product" has the meaning given such term in
(5) Total expenditures
The term "total expenditures" includes, in the case of expenditures with respect to part D of subchapter XVIII, the total gross covered prescription drug costs (as defined in
(6) Unit
The term "unit" means, with respect to a drug or biological product, the lowest identifiable amount (such as a capsule or tablet, milligram of molecules, or grams) of the drug or biological product that is dispensed or furnished.
(d) Timing for initial price applicability year 2026
Notwithstanding the provisions of this part, in the case of initial price applicability year 2026, the following rules shall apply for purposes of implementing the program:
(1) Subsection (b)(3) shall be applied by substituting "September 1, 2023" for ", with respect to each initial price applicability year, February 1 of the year that begins 2 years prior to such year".
(2) Subsection (b)(4) shall be applied—
(A) in subparagraph (A)(ii), by substituting "October 1, 2023" for "February 28 following the selected drug publication date with respect to such selected drug"; and
(B) in subparagraph (B), by substituting "August 1, 2024" for "November 1 of the year that begins 2 years prior to the initial price applicability year".
(3)
(A) in subsection (b)(1)(A), by substituting "during the period beginning on June 1, 2022, and ending on May 31, 2023" for "during the most recent period of 12 months prior to the selected drug publication date (but ending not later than October 31 of the year prior to the year of such drug publication date), with respect to such year, for which data are available"; and
(B) in subsection (d)(1)(A), by substituting "during the period beginning on June 1, 2022, and ending on May 31, 2023" for "during the most recent period for which data are available of at least 12 months prior to the selected drug publication date (but ending no later than October 31 of the year prior to the year of such drug publication date), with respect to such year".2
(4)
(5)
(A) in subparagraph (A), by substituting "October 2, 2023" for "March 1 of the year of the selected drug publication date, with respect to the selected drug";
(B) in subparagraph (B), by substituting "February 1, 2024" for "the June 1 following the selected drug publication date"; and
(C) in subparagraph (E), by substituting "August 1, 2024" for "the first day of November following the selected drug publication date, with respect to the initial price applicability year".
(6)
(Aug. 14, 1935, ch. 531, title XI, §1191, as added
Statutory Notes and Related Subsidiaries
Implementation for 2026 Through 2028
1 So in original. Probably should be followed by "and".
§1320f–1. Selection of negotiation-eligible drugs as selected drugs
(a) In general
Not later than the selected drug publication date with respect to an initial price applicability year, in accordance with subsection (b), the Secretary shall select and publish a list of—
(1) with respect to the initial price applicability year 2026, 10 negotiation-eligible drugs described in subparagraph (A) of subsection (d)(1), but not subparagraph (B) of such subsection, with respect to such year (or, all (if such number is less than 10) such negotiation-eligible drugs with respect to such year);
(2) with respect to the initial price applicability year 2027, 15 negotiation-eligible drugs described in subparagraph (A) of subsection (d)(1), but not subparagraph (B) of such subsection, with respect to such year (or, all (if such number is less than 15) such negotiation-eligible drugs with respect to such year);
(3) with respect to the initial price applicability year 2028, 15 negotiation-eligible drugs described in subparagraph (A) or (B) of subsection (d)(1) with respect to such year (or, all (if such number is less than 15) such negotiation-eligible drugs with respect to such year); and
(4) with respect to the initial price applicability year 2029 or a subsequent year, 20 negotiation-eligible drugs described in subparagraph (A) or (B) of subsection (d)(1), with respect to such year (or, all (if such number is less than 20) such negotiation-eligible drugs with respect to such year).
Subject to subsection (c)(2) and
(b) Selection of drugs
(1) In general
In carrying out subsection (a), subject to paragraph (2), the Secretary shall, with respect to an initial price applicability year, do the following:
(A) Rank negotiation-eligible drugs described in subsection (d)(1) according to the total expenditures for such drugs under parts B and D of subchapter XVIII, as determined by the Secretary, during the most recent period of 12 months prior to the selected drug publication date (but ending not later than October 31 of the year prior to the year of such drug publication date), with respect to such year, for which data are available, with the negotiation-eligible drugs with the highest total expenditures being ranked the highest.
(B) Select from such ranked drugs with respect to such year the negotiation-eligible drugs with the highest such rankings.
(C) In the case of a biological product for which the inclusion of the biological product as a selected drug on a list published under subsection (a) has been delayed under subsection (f)(2), remove such biological product from the rankings under subparagraph (A) before making the selections under subparagraph (B).
(2) High spend part D drugs for 2026 and 2027
With respect to the initial price applicability year 2026 and with respect to the initial price applicability year 2027, the Secretary shall apply paragraph (1) as if the reference to "negotiation-eligible drugs described in subsection (d)(1)" were a reference to "negotiation-eligible drugs described in subsection (d)(1)(A)" and as if the reference to "total expenditures for such drugs under parts B and D of subchapter XVIII" were a reference to "total expenditures for such drugs under part D of subchapter XVIII".
(3) Inclusion of delayed biological products
Pursuant to subparagraphs (B)(ii)(I) and (C)(i) of subsection (f)(2), the Secretary shall select and include on the list published under subsection (a) the biological products described in such subparagraphs. Such biological products shall count towards the required number of drugs to be selected under subsection (a)(1).
(c) Selected drug
(1) In general
For purposes of this part, in accordance with subsection (e)(2) and subject to paragraph (2), each negotiation-eligible drug included on the list published under subsection (a) with respect to an initial price applicability year shall be referred to as a "selected drug" with respect to such year and each subsequent year beginning before the first year that begins at least 9 months after the date on which the Secretary determines at least one drug or biological product—
(A) is approved or licensed (as applicable)—
(i) under
(ii) under
(B) is marketed pursuant to such approval or licensure.
(2) Clarification
A negotiation-eligible drug—
(A) that is included on the list published under subsection (a) with respect to an initial price applicability year; and
(B) for which the Secretary makes a determination described in paragraph (1) before or during the negotiation period with respect to such initial price applicability year;
shall not be subject to the negotiation process under
(d) Negotiation-eligible drug
(1) In general
For purposes of this part, subject to paragraph (2), the term "negotiation-eligible drug" means, with respect to the selected drug publication date with respect to an initial price applicability year, a qualifying single source drug, as defined in subsection (e), that is described in either of the following subparagraphs (or, with respect to the initial price applicability year 2026 or 2027, that is described in subparagraph (A)):
(A) Part D high spend drugs
The qualifying single source drug is, determined in accordance with subsection (e)(2), among the 50 qualifying single source drugs with the highest total expenditures under part D of subchapter XVIII, as determined by the Secretary in accordance with paragraph (3), during the most recent 12-month period for which data are available prior to such selected drug publication date (but ending no later than October 31 of the year prior to the year of such drug publication date).
(B) Part B high spend drugs
The qualifying single source drug is, determined in accordance with subsection (e)(2), among the 50 qualifying single source drugs with the highest total expenditures under part B of subchapter XVIII, as determined by the Secretary in accordance with paragraph (3), during such most recent 12-month period, as described in subparagraph (A).
(2) Exception for small biotech drugs
(A) In general
Subject to subparagraph (C), the term "negotiation-eligible drug" shall not include, with respect to the initial price applicability years 2026, 2027, and 2028, a qualifying single source drug that meets either of the following:
(i) Part D drugs
The total expenditures for the qualifying single source drug under part D of subchapter XVIII, as determined by the Secretary in accordance with paragraph (3)(B), during 2021—
(I) are equal to or less than 1 percent of the total expenditures under such part D, as so determined, for all covered part D drugs (as defined in
(II) are equal to at least 80 percent of the total expenditures under such part D, as so determined, for all covered part D drugs for which the manufacturer of the drug has an agreement in effect under
(ii) Part B drugs
The total expenditures for the qualifying single source drug under part B of subchapter XVIII, as determined by the Secretary in accordance with paragraph (3)(B), during 2021—
(I) are equal to or less than 1 percent of the total expenditures under such part B, as so determined, for all qualifying single source drugs for which payment may be made under such part B during such year; and
(II) are equal to at least 80 percent of the total expenditures under such part B, as so determined, for all qualifying single source drugs of the manufacturer for which payment may be made under such part B during such year.
(B) Clarifications relating to manufacturers
(i) Aggregation rule
All persons treated as a single employer under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986 shall be treated as one manufacturer for purposes of this paragraph.
(ii) Limitation
A drug shall not be considered to be a qualifying single source drug described in clause (i) or (ii) of subparagraph (A) if the manufacturer of such drug is acquired after 2021 by another manufacturer that does not meet the definition of a specified manufacturer under
(C) Drugs not included as small biotech drugs
A new formulation, such as an extended release formulation, of a qualifying single source drug shall not be considered a qualifying single source drug described in subparagraph (A).
(3) Clarifications and determinations
(A) Previously selected drugs and small biotech drugs excluded
In applying subparagraphs (A) and (B) of paragraph (1), the Secretary shall not consider or count—
(i) drugs that are already selected drugs; and
(ii) for initial price applicability years 2026, 2027, and 2028, qualifying single source drugs described in paragraph (2)(A).
(B) Use of data
In determining whether a qualifying single source drug satisfies any of the criteria described in paragraph (1) or (2), the Secretary shall use data that is aggregated across dosage forms and strengths of the drug, including new formulations of the drug, such as an extended release formulation, and not based on the specific formulation or package size or package type of the drug.
(e) Qualifying single source drug
(1) In general
For purposes of this part, the term "qualifying single source drug" means, with respect to an initial price applicability year, subject to paragraphs (2) and (3), a covered part D drug (as defined in
(A) Drug products
A drug—
(i) that is approved under
(ii) for which, as of the selected drug publication date with respect to such initial price applicability year, at least 7 years will have elapsed since the date of such approval; and
(iii) that is not the listed drug for any drug that is approved and marketed under section 355(j) of such title.
(B) Biological products
A biological product—
(i) that is licensed under
(ii) for which, as of the selected drug publication date with respect to such initial price applicability year, at least 11 years will have elapsed since the date of such licensure; and
(iii) that is not the reference product for any biological product that is licensed and marketed under
(2) Treatment of authorized generic drugs
(A) In general
In the case of a qualifying single source drug described in subparagraph (A) or (B) of paragraph (1) that is the listed drug (as such term is used in
(B) Authorized generic drug defined
For purposes of this paragraph, the term "authorized generic drug" means—
(i) in the case of a drug, an authorized generic drug (as such term is defined in
(ii) in the case of a biological product, a product that—
(I) has been licensed under
(II) is marketed, sold, or distributed directly or indirectly to retail class of trade under a different labeling, packaging (other than repackaging as the reference product in blister packs, unit doses, or similar packaging for use in institutions), product code, labeler code, trade name, or trade mark than the reference product.
(3) Exclusions
In this part, the term "qualifying single source drug" does not include any of the following:
(A) Certain orphan drugs
A drug that is designated as a drug for only one rare disease or condition under
(B) Low spend medicare drugs
A drug or biological product with respect to which the total expenditures under parts B and D of subchapter XVIII, as determined by the Secretary in accordance with subsection (d)(3)(B)—
(i) with respect to initial price applicability year 2026, is less than, during the period beginning on June 1, 2022, and ending on May 31, 2023, $200,000,000;
(ii) with respect to initial price applicability year 2027, is less than, during the most recent 12-month period applicable under subparagraphs (A) and (B) of subsection (d)(1) for such year, the dollar amount specified in clause (i) increased by the annual percentage increase in the consumer price index for all urban consumers (all items; United States city average) for the period beginning on June 1, 2023, and ending on September 30, 2024; or
(iii) with respect to a subsequent initial price applicability year, is less than, during the most recent 12-month period applicable under subparagraphs (A) and (B) of subsection (d)(1) for such year, the dollar amount specified in this subparagraph for the previous initial price applicability year increased by the annual percentage increase in such consumer price index for the 12-month period ending on September 30 of the year prior to the year of the selected drug publication date with respect to such subsequent initial price applicability year.
(C) Plasma-derived products
A biological product that is derived from human whole blood or plasma.
(f) Special rule to delay selection and negotiation of biologics for biosimilar market entry
(1) Application
(A) In general
Subject to subparagraph (B), in the case of a biological product that would (but for this subsection) be an extended-monopoly drug (as defined in
(B) Request required
(i) In general
The Secretary shall not provide for a delay under—
(I) paragraph (2)(A) unless a request is made for such a delay by a manufacturer of a biosimilar biological product prior to the selected drug publication date for the list published under subsection (a) with respect to the initial price applicability year for which the biological product may have been included as a selected drug on such list but for subparagraph (2)(A); or
(II) paragraph (2)(B)(iii) unless a request is made for such a delay by such a manufacturer prior to the selected drug publication date for the list published under subsection (a) with respect to the initial price applicability year that is 1 year after the initial price applicability year for which the biological product described in subsection (a) would have been included as a selected drug on such list but for paragraph (2)(A).
(ii) Information and documents
(I) In general
A request made under clause (i) shall be submitted to the Secretary by such manufacturer at a time and in a form and manner specified by the Secretary, and contain—
(aa) information and documents necessary for the Secretary to make determinations under this subsection, as specified by the Secretary and including, to the extent available, items described in subclause (III); and
(bb) all agreements related to the biosimilar biological product filed with the Federal Trade Commission or the Assistant Attorney General pursuant to subsections (a) and (c) of section 1112 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003.
(II) Additional information and documents
After the Secretary has reviewed the request and materials submitted under subclause (I), the manufacturer shall submit any additional information and documents requested by the Secretary necessary to make determinations under this subsection.
(III) Items described
The items described in this clause are the following:
(aa) The manufacturing schedule for such biosimilar biological product submitted to the Food and Drug Administration during its review of the application under such
(bb) Disclosures (in filings by the manufacturer of such biosimilar biological product with the Securities and Exchange Commission required under
(C) Aggregation rule
(i) In general
All persons treated as a single employer under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986, or in a partnership, shall be treated as one manufacturer for purposes of paragraph (2)(D)(iv).
(ii) Partnership defined
In clause (i), the term "partnership" means a syndicate, group, pool, joint venture, or other organization through or by means of which any business, financial operation, or venture is carried on by the manufacturer of the biological product and the manufacturer of the biosimilar biological product.
(2) Rules described
The rules described in this paragraph are the following:
(A) Delayed selection and negotiation for 1 year
If a determination of high likelihood is made under paragraph (3), the Secretary shall delay the inclusion of the biological product as a selected drug on the list published under subsection (a) until such list is published with respect to the initial price applicability year that is 1 year after the initial price applicability year for which the biological product would have been included as a selected drug on such list.
(B) If not licensed and marketed during the initial delay
(i) In general
If, during the time period between the selected drug publication date on which the biological product would have been included on the list as a selected drug pursuant to subsection (a) but for subparagraph (A) and the selected drug publication date with respect to the initial price applicability year that is 1 year after the initial price applicability year for which such biological product would have been included as a selected drug on such list, the Secretary determines that the biosimilar biological product for which the manufacturer submitted the request under paragraph (1)(B)(i)(II) (and for which the Secretary previously made a high likelihood determination under paragraph (3)) has not been licensed and marketed under
(I) reevaluate whether there is a high likelihood (as described in paragraph (3)) that such biosimilar biological product will be licensed and marketed under such section 262(k) before the date that is 2 years after the selected drug publication date for which such biological product would have been included as a selected drug on such list published but for subparagraph (A); and
(II) evaluate whether, on the basis of clear and convincing evidence, the manufacturer of such biosimilar biological product has made a significant amount of progress (as determined by the Secretary) towards both such licensure and the marketing of such biosimilar biological product (based on information from items described in subclauses (I)(bb) and (II) of paragraph (1)(B)(ii)) since the receipt by the Secretary of the request made by such manufacturer under paragraph (1)(B)(i)(I).
(ii) Selection and negotiation
If the Secretary determines that there is not a high likelihood that such biosimilar biological product will be licensed and marketed as described in clause (i)(I) or there has not been a significant amount of progress as described in clause (i)(II)—
(I) the Secretary shall include the biological product as a selected drug on the list published under subsection (a) with respect to the initial price applicability year that is 1 year after the initial price applicability year for which such biological product would have been included as a selected drug on such list but for subparagraph (A); and
(II) the manufacturer of such biological product shall pay a rebate under paragraph (4) with respect to the year for which such manufacturer would have provided access to a maximum fair price for such biological product but for subparagraph (A).
(iii) Second 1-year delay
If the Secretary determines that there is a high likelihood that such biosimilar biological product will be licensed and marketed (as described in clause (i)(I)) and a significant amount of progress has been made by the manufacturer of such biosimilar biological product towards such licensure and marketing (as described in clause (i)(II)), the Secretary shall delay the inclusion of the biological product as a selected drug on the list published under subsection (a) until the selected drug publication date of such list with respect to the initial price applicability year that is 2 years after the initial price applicability year for which such biological product would have been included as a selected drug on such list but for this subsection.
(C) If not licensed and marketed during the year two delay
If, during the time period between the selected drug publication date of the list for which the biological product would have been included as a selected drug but for subparagraph (B)(iii) and the selected drug publication date with respect to the initial price applicability year that is 2 years after the initial price applicability year for which such biological product would have been included as a selected drug on such list but for this subsection, the Secretary determines that such biosimilar biological product has not been licensed and marketed—
(i) the Secretary shall include such biological product as a selected drug on such list with respect to the initial price applicability year that is 2 years after the initial price applicability year for which such biological product would have been included as a selected drug on such list; and
(ii) the manufacturer of such biological product shall pay a rebate under paragraph (4) with respect to the years for which such manufacturer would have provided access to a maximum fair price for such biological product but for this subsection.
(D) Limitations on delays
(i) Limited to 2 years
In no case shall the Secretary delay the inclusion of a biological product on the list published under subsection (a) for more than 2 years.
(ii) Exclusion of biological products that transitioned to a long-monopoly drug during the delay
In the case of a biological product for which the inclusion on the list published pursuant to subsection (a) was delayed by 1 year under subparagraph (A) and for which there would have been a change in status to a long-monopoly drug (as defined in
(iii) Exclusion of biological products if more than 1 year since licensure
In no case shall the Secretary delay the inclusion of a biological product on the list published under subsection (a) if more than 1 year has elapsed since the biosimilar biological product has been licensed under
(iv) Certain manufacturers of biosimilar biological products excluded
In no case shall the Secretary delay the inclusion of a biological product as a selected drug on the list published under subsection (a) if Secretary determined that the manufacturer of the biosimilar biological product described in paragraph (1)(A)—
(I) is the same as the manufacturer of the reference product described in such paragraph or is treated as being the same pursuant to paragraph (1)(C); or
(II) has, based on information from items described in paragraph (1)(B)(ii)(I)(bb), entered into any agreement described in such paragraph with the manufacturer of the reference product described in paragraph (1)(A) that—
(aa) requires or incentivizes the manufacturer of the biosimilar biological product to submit a request described in paragraph (1)(B); or
(bb) restricts the quantity (either directly or indirectly) of the biosimilar biological product that may be sold in the United States over a specified period of time.
(3) High likelihood
For purposes of this subsection, there is a high likelihood described in paragraph (1) or paragraph (2), as applicable, if the Secretary finds that—
(A) an application for licensure under
(B) information from items described in sub clauses 2 (I)(bb) and (III) of paragraph (1)(B)(ii) submitted to the Secretary by the manufacturer requesting a delay under such paragraph provides clear and convincing evidence that such biosimilar biological product will, within the time period specified under paragraph (1)(A) or (2)(B)(i)(I), be marketed.
(4) Rebate
(A) In general
For purposes of subparagraphs (B)(ii)(II) and (C)(ii) of paragraph (2), in the case of a biological product for which the inclusion on the list under subsection (a) was delayed under this subsection and for which the Secretary has negotiated and entered into an agreement under
(B) Amount
Subject to subparagraph (C), the amount of the rebate under subparagraph (A) with respect to a biological product shall be equal to the estimated amount—
(i) in the case of a biological product that is a covered part D drug (as defined in
(I) 75 percent of the amount by which—
(aa) the average manufacturer price, as reported by the manufacturer of such covered part D drug under
(bb) in the initial price applicability year that would have applied but for a delay under—
(AA) paragraph (2)(A), the maximum fair price negotiated under
(BB) paragraph (2)(B)(iii), such maximum fair price, increased as described in
(II) the number of units dispensed under part D of subchapter XVIII for such covered part D drug during each such calendar quarter of such price applicability period; and
(ii) in the case of a biological product for which payment may be made under part B of subchapter XVIII, that is the sum of the products of—
(I) 80 percent of the amount by which—
(aa) the payment amount for such biological product under
(bb) in the initial price applicability year that would have applied but for a delay under—
(AA) paragraph (2)(A), the maximum fair price negotiated under
(BB) paragraph (2)(B)(iii), such maximum fair price, increased as described in
(II) the number of units (excluding units that are packaged into the payment amount for an item or service and are not separately payable under such part B) of the billing and payment code of such biological product administered or furnished under such part B during each such calendar quarter of such price applicability period.
(C) Special rule for delayed biological products that are long-monopoly drugs
(i) In general
In the case of a biological product with respect to which a rebate is required to be paid under this paragraph, if such biological product qualifies as a long-monopoly drug (as defined in
(ii) Amount described
The amount described in this clause is an amount equal to 65 percent of the average non-Federal average manufacturer price for the biological product for 2021 (or, in the case that there is not an average non-Federal average manufacturer price available for such biological product for 2021, for the first full year following the market entry for such biological product), increased by the percentage increase in the consumer price index for all urban consumers (all items; United States city average) from September 2021 (or December of such first full year following the market entry), as applicable, to September of the year prior to the selected drug publication date with respect to the initial price applicability year that would have applied but for this subsection.
(D) Rebate deposits
Amounts paid as rebates under this paragraph shall be deposited into—
(i) in the case payment is made for such biological product under part B of subchapter XVIII, the Federal Supplementary Medical Insurance Trust Fund established under
(ii) in the case such biological product is a covered part D drug (as defined in
(5) Definitions of biosimilar biological product
In this subsection, the term "biosimilar biological product" has the meaning given such term in
(Aug. 14, 1935, ch. 531, title XI, §1192, as added and amended
Editorial Notes
References in Text
Section 52 of the Internal Revenue Code of 1986, referred to in subsecs. (d)(2)(B)(i) and (f)(1)(C)(i), is classified to
Section 1112 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, referred to in subsec. (f)(1)(B)(ii)(I)(bb), is section 1112 of
Amendments
2022—Subsec. (a).
Subsec. (b)(1)(C).
Subsec. (b)(3).
Subsec. (f).
Statutory Notes and Related Subsidiaries
Implementation for 2026 Through 2028
1 See References in Text note below.
§1320f–2. Manufacturer agreements
(a) In general
For purposes of
(1) during the negotiation period for the initial price applicability year for the selected drug, the Secretary and the manufacturer, in accordance with
(A) to maximum fair price eligible individuals who with respect to such drug are described in subparagraph (A) of
(B) to hospitals, physicians, and other providers of services and suppliers with respect to maximum fair price eligible individuals who with respect to such drug are described in subparagraph (B) of such section and are furnished or administered such drug during, subject to paragraph (2), the price applicability period;
(2) the Secretary and the manufacturer shall, in accordance with
(A) to maximum fair price eligible individuals who with respect to such drug are described in subparagraph (A) of
(B) to hospitals, physicians, and other providers of services and suppliers with respect to maximum fair price eligible individuals who with respect to such drug are described in subparagraph (B) of such section and are furnished or administered such drug during any year described in subparagraph (A);
(3) subject to subsection (d), access to the maximum fair price (including as renegotiated pursuant to paragraph (2)), with respect to such a selected drug, shall be provided by the manufacturer to—
(A) maximum fair price eligible individuals, who with respect to such drug are described in subparagraph (A) of
(B) hospitals, physicians, and other providers of services and suppliers with respect to maximum fair price eligible individuals who with respect to such drug are described in subparagraph (B) of such section and are furnished or administered such drug, as described in paragraph (1)(B) or (2)(B), as applicable;
(4) the manufacturer submits to the Secretary, in a form and manner specified by the Secretary, for the negotiation period for the price applicability period (and, if applicable, before any period of renegotiation pursuant to
(A) information on the non-Federal average manufacturer price (as defined in
(B) information that the Secretary requires to carry out the negotiation (or renegotiation process) under this part; and
(C) information that the Secretary requires to carry out
(5) the manufacturer complies with requirements determined by the Secretary to be necessary for purposes of administering the program and monitoring compliance with the program.
(b) Agreement in effect until drug is no longer a selected drug
An agreement entered into under this section shall be effective, with respect to a selected drug, until such drug is no longer considered a selected drug under
(c) Confidentiality of information
Information submitted to the Secretary under this part by a manufacturer of a selected drug that is proprietary information of such manufacturer (as determined by the Secretary) shall be used only by the Secretary or disclosed to and used by the Comptroller General of the United States for purposes of carrying out this part.
(d) Nonduplication with 340B ceiling price
Under an agreement entered into under this section, the manufacturer of a selected drug—
(1) shall not be required to provide access to the maximum fair price under subsection (a)(3), with respect to such selected drug and maximum fair price eligible individuals who are eligible to be furnished, administered, or dispensed such selected drug at a covered entity described in section 340B(a)(4) of the Public Health Service Act [
(2) shall be required to provide access to the maximum fair price to such covered entity with respect to maximum fair price eligible individuals who are eligible to be furnished, administered, or dispensed such selected drug at such entity at such ceiling price in a nonduplicated amount to the ceiling price if such maximum fair price is below the ceiling price for such selected drug.
(Aug. 14, 1935, ch. 531, title XI, §1193, as added and amended
Editorial Notes
Amendments
2022—Subsec. (a)(4).
Subsec. (a)(4)(C).
§1320f–3. Negotiation and renegotiation process
(a) In general
For purposes of this part, under an agreement under
(1) shall during the negotiation period with respect to such drug, in accordance with this section, negotiate a maximum fair price for such drug for the purpose described in
(2) renegotiate, in accordance with the process specified pursuant to subsection (f), such maximum fair price for such drug for the purpose described in
(b) Negotiation process requirements
(1) Methodology and process
The Secretary shall develop and use a consistent methodology and process, in accordance with paragraph (2), for negotiations under subsection (a) that aims to achieve the lowest maximum fair price for each selected drug.
(2) Specific elements of negotiation process
As part of the negotiation process under this section, with respect to a selected drug and the negotiation period with respect to the initial price applicability year with respect to such drug, the following shall apply:
(A) Submission of information
Not later than March 1 of the year of the selected drug publication date, with respect to the selected drug, the manufacturer of the drug shall submit to the Secretary, in accordance with
(B) Initial offer by Secretary
Not later than the June 1 following the selected drug publication date, the Secretary shall provide the manufacturer of the selected drug with a written initial offer that contains the Secretary's proposal for the maximum fair price of the drug and a concise justification based on the factors described in subsection (e) that were used in developing such offer.
(C) Response to initial offer
(i) In general
Not later than 30 days after the date of receipt of an initial offer under subparagraph (B), the manufacturer shall either accept such offer or propose a counteroffer to such offer.
(ii) Counteroffer requirements
If a manufacturer proposes a counteroffer, such counteroffer—
(I) shall be in writing; and
(II) shall be justified based on the factors described in subsection (e).
(D) Response to counteroffer
After receiving a counteroffer under subparagraph (C), the Secretary shall respond in writing to such counteroffer.
(E) Deadline
All negotiations between the Secretary and the manufacturer of the selected drug shall end prior to the first day of November following the selected drug publication date, with respect to the initial price applicability year.
(F) Limitations on offer amount
In negotiating the maximum fair price of a selected drug, with respect to the initial price applicability year for the selected drug, and, as applicable, in renegotiating the maximum fair price for such drug, with respect to a subsequent year during the price applicability period for such drug, the Secretary shall not offer (or agree to a counteroffer for) a maximum fair price for the selected drug that—
(i) exceeds the ceiling determined under subsection (c) for the selected drug and year; or
(ii) as applicable, is less than the floor determined under subsection (d) for the selected drug and year.
(c) Ceiling for maximum fair price
(1) General ceiling
(A) In general
The maximum fair price negotiated under this section for a selected drug, with respect to the first initial price applicability year of the price applicability period with respect to such drug, shall not exceed the lower of the amount under subparagraph (B) or the amount under subparagraph (C).
(B) Subparagraph (B) amount
An amount equal to the following:
(i) Covered part D drug
In the case of a covered part D drug (as defined in
(ii) Part B drug or biological
In the case of a drug or biological product for which payment may be made under part B of subchapter XVIII, the payment amount under
(C) Subparagraph (C) amount
An amount equal to the applicable percent described in paragraph (3), with respect to such drug, of the following:
(i) Initial price applicability year 2026
In the case of a selected drug with respect to which such initial price applicability year is 2026, the average non-Federal average manufacturer price for such drug for 2021 (or, in the case that there is not an average non-Federal average manufacturer price available for such drug for 2021, for the first full year following the market entry for such drug), increased by the percentage increase in the consumer price index for all urban consumers (all items; United States city average) from September 2021 (or December of such first full year following the market entry), as applicable, to September of the year prior to the year of the selected drug publication date with respect to such initial price applicability year.
(ii) Initial price applicability year 2027 and subsequent years
In the case of a selected drug with respect to which such initial price applicability year is 2027 or a subsequent year, the lower of—
(I) the average non-Federal average manufacturer price for such drug for 2021 (or, in the case that there is not an average non-Federal average manufacturer price available for such drug for 2021, for the first full year following the market entry for such drug), increased by the percentage increase in the consumer price index for all urban consumers (all items; United States city average) from September 2021 (or December of such first full year following the market entry), as applicable, to September of the year prior to the year of the selected drug publication date with respect to such initial price applicability year; or
(II) the average non-Federal average manufacturer price for such drug for the year prior to the selected drug publication date with respect to such initial price applicability year.
(2) Plan specific enrollment weighted amount
For purposes of paragraph (1)(B)(i), the plan specific enrollment weighted amount for a prescription drug plan or an MA–PD plan with respect to a covered Part D drug is an amount equal to the product of—
(A) the negotiated price of the drug under such plan under part D of subchapter XVIII, net of all price concessions received by such plan or pharmacy benefit managers on behalf of such plan, for the most recent year for which data is available; and
(B) a fraction—
(i) the numerator of which is the total number of individuals enrolled in such plan in such year; and
(ii) the denominator of which is the total number of individuals enrolled in a prescription drug plan or an MA–PD plan in such year.
(3) Applicable percent described
For purposes of this subsection, the applicable percent described in this paragraph is the following:
(A) Short-monopoly drugs and vaccines
With respect to a selected drug (other than an extended-monopoly drug and a long-monopoly drug), 75 percent.
(B) Extended-monopoly drugs
With respect to an extended-monopoly drug, 65 percent.
(C) Long-monopoly drugs
With respect to a long-monopoly drug, 40 percent.
(4) Extended-monopoly drug defined
(A) In general
In this part, subject to subparagraph (B), the term "extended-monopoly drug" means, with respect to an initial price applicability year, a selected drug for which at least 12 years, but fewer than 16 years, have elapsed since the date of approval of such drug under
(B) Exclusions
The term "extended-monopoly drug" shall not include any of the following:
(i) A vaccine that is licensed under
(ii) A selected drug for which a manufacturer had an agreement under this part with the Secretary with respect to an initial price applicability year that is before 2030.
(C) Clarification
Nothing in subparagraph (B)(ii) shall limit the transition of a selected drug described in paragraph (3)(A) to a long-monopoly drug if the selected drug meets the definition of a long-monopoly drug.
(5) Long-monopoly drug defined
(A) In general
In this part, subject to subparagraph (B), the term "long-monopoly drug" means, with respect to an initial price applicability year, a selected drug for which at least 16 years have elapsed since the date of approval of such drug under
(B) Exclusion
The term "long-monopoly drug" shall not include a vaccine that is licensed under
(6) Average non-Federal average manufacturer price
In this part, the term "average non-Federal average manufacturer price" means the average of the non-Federal average manufacturer price (as defined in
(d) Temporary floor for small biotech drugs
In the case of a selected drug that is a qualifying single source drug described in
(e) Factors
For purposes of negotiating the maximum fair price of a selected drug under this part with the manufacturer of the drug, the Secretary shall consider the following factors, as applicable to the drug, as the basis for determining the offers and counteroffers under subsection (b) for the drug:
(1) Manufacturer-specific data
The following data, with respect to such selected drug, as submitted by the manufacturer:
(A) Research and development costs of the manufacturer for the drug and the extent to which the manufacturer has recouped research and development costs.
(B) Current unit costs of production and distribution of the drug.
(C) Prior Federal financial support for novel therapeutic discovery and development with respect to the drug.
(D) Data on pending and approved patent applications, exclusivities recognized by the Food and Drug Administration, and applications and approvals under
(E) Market data and revenue and sales volume data for the drug in the United States.
(2) Evidence about alternative treatments
The following evidence, as available, with respect to such selected drug and therapeutic alternatives to such drug:
(A) The extent to which such drug represents a therapeutic advance as compared to existing therapeutic alternatives and the costs of such existing therapeutic alternatives.
(B) Prescribing information approved by the Food and Drug Administration for such drug and therapeutic alternatives to such drug.
(C) Comparative effectiveness of such drug and therapeutic alternatives to such drug, taking into consideration the effects of such drug and therapeutic alternatives to such drug on specific populations, such as individuals with disabilities, the elderly, the terminally ill, children, and other patient populations.
(D) The extent to which such drug and therapeutic alternatives to such drug address unmet medical needs for a condition for which treatment or diagnosis is not addressed adequately by available therapy.
In using evidence described in subparagraph (C), the Secretary shall not use evidence from comparative clinical effectiveness research in a manner that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill.
(f) Renegotiation process
(1) In general
In the case of a renegotiation-eligible drug (as defined in paragraph (2)) that is selected under paragraph (3), the Secretary shall provide for a process of renegotiation (for years (beginning with 2028) during the price applicability period, with respect to such drug) of the maximum fair price for such drug consistent with paragraph (4).
(2) Renegotiation-eligible drug defined
In this section, the term "renegotiation-eligible drug" means a selected drug that is any of the following:
(A) Addition of new indication
A selected drug for which a new indication is added to the drug.
(B) Change of status to an extended-monopoly drug
A selected drug that—
(i) is not an extended-monopoly or a long-monopoly drug; and
(ii) for which there is a change in status to that of an extended-monopoly drug.
(C) Change of status to a long-monopoly drug
A selected drug that—
(i) is not a long-monopoly drug; and
(ii) for which there is a change in status to that of a long-monopoly drug.
(D) Material changes
A selected drug for which the Secretary determines there has been a material change of any of the factors described in paragraph (1) or (2) of subsection (e).
(3) Selection of drugs for renegotiation
For each year (beginning with 2028), the Secretary shall select among renegotiation-eligible drugs for renegotiation as follows:
(A) All extended-monopoly negotiation-eligible drugs
The Secretary shall select all renegotiation-eligible drugs described in paragraph (2)(B).
(B) All long-monopoly negotiation-eligible drugs
The Secretary shall select all renegotiation-eligible drugs described in paragraph (2)(C).
(C) Remaining drugs
Among the remaining renegotiation-eligible drugs described in subparagraphs (A) and (D) of paragraph (2), the Secretary shall select renegotiation-eligible drugs for which the Secretary expects renegotiation is likely to result in a significant change in the maximum fair price otherwise negotiated.
(4) Renegotiation process
(A) In general
The Secretary shall specify the process for renegotiation of maximum fair prices with the manufacturer of a renegotiation-eligible drug selected for renegotiation under this subsection.
(B) Consistent with negotiation process
The process specified under subparagraph (A) shall, to the extent practicable, be consistent with the methodology and process established under subsection (b) and in accordance with subsections (c), (d), and (e), and for purposes of applying subsections (c)(1)(A) and (d), the reference to the first initial price applicability year of the price applicability period with respect to such drug shall be treated as the first initial price applicability year of such period for which the maximum fair price established pursuant to such renegotiation applies, including for applying subsection (c)(3)(B) in the case of renegotiation-eligible drugs described in paragraph (3)(A) of this subsection and subsection (c)(3)(C) in the case of renegotiation-eligible drugs described in paragraph (3)(B) of this subsection.
(5) Clarification
A renegotiation-eligible drug for which the Secretary makes a determination described in
(g) Clarification
The maximum fair price for a selected drug described in subparagraph (A) or (B) of paragraph (1) 1 shall take effect no later than the first day of the first calendar quarter that begins after the date described in subparagraph 2 (A) or (B), as applicable.
(Aug. 14, 1935, ch. 531, title XI, §1194, as added
2 So in original. Probably should be preceded by "such".
§1320f–4. Publication of maximum fair prices
(a) In general
With respect to an initial price applicability year and a selected drug with respect to such year—
(1) not later than November 30 of the year that is 2 years prior to such initial price applicability year, the Secretary shall publish the maximum fair price for such drug negotiated with the manufacturer of such drug under this part; and
(2) not later than March 1 of the year prior to such initial price applicability year, the Secretary shall publish, subject to
(b) Updates
(1) Subsequent year maximum fair prices
For a selected drug, for each year subsequent to the first initial price applicability year of the price applicability period with respect to such drug, with respect to which an agreement for such drug is in effect under
(A) subject to subparagraph (B), the amount equal to the maximum fair price published for such drug for the previous year, increased by the annual percentage increase in the consumer price index for all urban consumers (all items; United States city average) for the 12-month period ending with the July immediately preceding such November 30; or
(B) in the case the maximum fair price for such drug was renegotiated, for the first year for which such price as so renegotiated applies, such renegotiated maximum fair price.
(2) Prices negotiated after deadline
In the case of a selected drug with respect to an initial price applicability year for which the maximum fair price is determined under this part after the date of publication under this section, the Secretary shall publish such maximum fair price by not later than 30 days after the date such maximum price is so determined.
(Aug. 14, 1935, ch. 531, title XI, §1195, as added
§1320f–5. Administrative duties and compliance monitoring
(a) Administrative duties
For purposes of
(1) The establishment of procedures to ensure that the maximum fair price for a selected drug is applied before—
(A) any coverage or financial assistance under other health benefit plans or programs that provide coverage or financial assistance for the purchase or provision of prescription drug coverage on behalf of maximum fair price eligible individuals; and
(B) any other discounts.
(2) The establishment of procedures to compute and apply the maximum fair price across different strengths and dosage forms of a selected drug and not based on the specific formulation or package size or package type of such drug.
(3) The establishment of procedures to carry out the provisions of this part, as applicable, with respect to—
(A) maximum fair price eligible individuals who are enrolled in a prescription drug plan under part D of subchapter XVIII or an MA–PD plan under part C of such subchapter; and
(B) maximum fair price eligible individuals who are enrolled under part B of such subchapter, including who are enrolled in an MA plan under part C of such subchapter.
(4) The establishment of a negotiation process and renegotiation process in accordance with
(5) The establishment of a process for manufacturers to submit information described in
(6) The sharing with the Secretary of the Treasury of such information as is necessary to determine the tax imposed by section 5000D of the Internal Revenue Code of 1986, including the application of such tax to a manufacturer, producer, or importer or the determination of any date described in section 5000D(c)(1) of such Code. For purposes of the preceding sentence, such information shall include—
(A) the date on which the Secretary receives notification of any termination of an agreement under the Medicare coverage gap discount program under
(B) the date on which the Secretary receives notification of any termination of an agreement under the manufacturer discount program under
(C) the date on which the Secretary receives notification of any termination of a rebate agreement described in
(7) The establishment of procedures for purposes of applying subsections (d)(2)(B) and (f)(1)(C) of
(b) Compliance monitoring
The Secretary shall monitor compliance by a manufacturer with the terms of an agreement under
(Aug. 14, 1935, ch. 531, title XI, §1196, as added and amended
Editorial Notes
References in Text
Section 5000D of the Internal Revenue Code of 1986, referred to in subsec. (a)(6), is classified to
Amendments
2022—Subsec. (a)(7).
§1320f–6. Civil monetary penalties
(a) Violations relating to offering of maximum fair price
Any manufacturer of a selected drug that has entered into an agreement under
(1) to a maximum fair price eligible individual who with respect to such drug is described in subparagraph (A) of
(2) to a hospital, physician, or other provider of services or supplier with respect to maximum fair price eligible individuals who with respect to such drug is described in subparagraph (B) of such section and is furnished or administered such drug by such hospital, physician, or provider or supplier during such year;
shall be subject to a civil monetary penalty equal to ten times the amount equal to the product of the number of units of such drug so furnished, dispensed, or administered during such year and the difference between the price for such drug made available for such year by such manufacturer with respect to such individual or hospital, physician, provider of services, or supplier and the maximum fair price for such drug for such year.
(b) Violations relating to providing rebates
Any manufacturer that fails to comply with the rebate requirements under
(c) Violations of certain terms of agreement
Any manufacturer of a selected drug that has entered into an agreement under
(d) False information
Any manufacturer that knowingly provides false information pursuant to
(e) Application
The provisions of
(Aug. 14, 1935, ch. 531, title XI, §1197, as added and amended
Editorial Notes
Amendments
2022—Subsecs. (b) to (e).
§1320f–7. Limitation on administrative and judicial review
There shall be no administrative or judicial review of any of the following:
(1) The determination of a unit, with respect to a drug or biological product, pursuant to
(2) The selection of drugs under
(3) The determination of a maximum fair price under subsection (b) or (f) of
(4) The determination of renegotiation-eligible drugs under
(Aug. 14, 1935, ch. 531, title XI, §1198, as added and amended
Editorial Notes
Amendments
2022—Par. (2).
1 So in original. The word "and" probably should not appear.