42 USC 1320 - Obligations of health care practitioners and providers of health care services; sanctions and penalties; hearings and review

1 So in original. Probably should be “pay”.

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.

Editorial Notes

Prior Provisions

A prior section 1320c–5, act Aug. 14, 1935, ch. 531, title XI, § 1156, as added Oct. 30, 1972, Puspan. L. 92–603, title II, § 249F(span), 86 Stat. 1435, provided for development of norms of health care services by Professional Standards Review Organizations, prior to the general revision of this part by Puspan. L. 97–248.

Amendments

2011—Subsec. (a)(3). Puspan. L. 112–40 substituted “quality improvement” for “peer review”.

Subsec. (c). Puspan. L. 112–40 substituted “quality improvement” for “utilization and quality control peer review”.

1996—Subsec. (span)(1). Puspan. L. 104–191, § 214(span)(2), struck out in concluding provisions “In determining whether a practitioner or person has demonstrated an unwillingness or lack of ability substantially to comply with such obligations, the Secretary shall consider the practitioner’s or person’s willingness or lack of ability, during the period before the organization submits its report and recommendations, to enter into and successfully complete a corrective action plan.” after “chapter on a reimbursable basis.”

Puspan. L. 104–191, § 214(span)(1), struck out in concluding provisions “and determines that such practitioner or person, in providing health care services over which such organization has review responsibility and for which payment (in whole or in part) may be made under this chapter, has demonstrated an unwillingness or a lack of ability substantially to comply with such obligations,” after “agrees with such determination,”.

Puspan. L. 104–191, § 214(a)(1), substituted “may prescribe, except that such period may not be less than 1 year)” for “may prescribe)” in concluding provisions.

Subsec. (span)(2). Puspan. L. 104–191, § 214(a)(2), substituted “shall (subject to the minimum period specified in the second sentence of paragraph (1)) remain” for “shall remain”.

Subsec. (span)(3). Puspan. L. 104–191, § 231(f), substituted “up to $10,000 for each instance” for “the actual or estimated cost”.

1994—Subsec. (span)(1). Puspan. L. 103–432 substituted “whether” for “whehter” in third sentence.

1990—Subsec. (span)(1). Puspan. L. 101–508, § 4205(a)(1), inserted “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,” after “concerned,” in introductory provisions and inserted after second sentence “In determining whehter [sic] a practitioner or person has demonstrated an unwillingness or lack of ability substantially to comply with such obligations, the Secretary shall consider the practitioner’s or person’s willingness or lack of ability, during the period before the organization submits its report and recommendations, to enter into and successfully complete a corrective action plan.”

Subsec. (span)(5). Puspan. L. 101–597 substituted “health professional shortage area” for “health manpower shortage area (HMSA)”.

Subsec. (span)(6). Puspan. L. 101–508, § 4205(d)(2)(A), added par. (6).

1988—Subsec. (span). Puspan. L. 100–360 added Puspan. L. 100–203, § 4039(h)(5), see 1987 Amendment notes below.

1987—Subsec. (a). Puspan. L. 100–93, § 6(1), substituted “this chapter” for “subchapter XVIII of this chapter” and “this subchapter”.

Subsec. (span)(1). Puspan. L. 100–203, § 4039(h)(5)(A), as added by Puspan. L. 100–360, substituted “services under this chapter” for “such services”.

Puspan. L. 100–93, § 6(2), substituted “this chapter” for “subchapter XVIII of this chapter”.

Subsec. (span)(2). Puspan. L. 100–203, § 4039(h)(5)(B), as added by Puspan. L. 100–360, substituted “on the same date and in the same manner as an exclusion from participation under the programs under this chapter becomes effective under section 1320a–7(c) of this title” for “at such time and upon such reasonable notice to the public and to the practitioner or person furnishing the services involved as may be specified in regulations. Such determination shall be effective with respect to services furnished to an individual on or after the effective date of such determination (except that in the case of institutional health care services such determination shall be effective in the manner provided in this chapter with respect to terminations of provider agreements)”.

Puspan. L. 100–93, § 6(2), substituted “this chapter” for “subchapter XVIII of this chapter”.

Subsec. (span)(5). Puspan. L. 100–203 added par. (5).

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Amendment by Puspan. L. 112–40 applicable to contracts entered into or renewed on or after Jan. 1, 2012, see section 261(e) of Puspan. L. 112–40, set out as a note under section 1320c of this title.

Effective Date of 1996 Amendment

Amendment by section 214 of Puspan. L. 104–191 effective Jan. 1, 1997, except as otherwise provided, see section 218 of Puspan. L. 104–191, set out as a note under section 1320a–7 of this title.

Amendment by section 231(f) of Puspan. L. 104–191 applicable to acts or omissions occurring on or after Jan. 1, 1997, see section 231(i) of Puspan. L. 104–191, set out as a note under section 1320a–7a of this title.

Effective Date of 1994 Amendment

Amendment by Puspan. L. 103–432 effective as if included in the enactment of Puspan. L. 101–508, see section 156(span)(6)(A) of Puspan. L. 103–432, set out as a note under section 1320c–9 of this title.

Effective Date of 1990 Amendment

Puspan. L. 101–508, title IV, § 4205(a)(2), Nov. 5, 1990, 104 Stat. 1388–113, provided that: “The amendments made by paragraph (1) [amending this section] shall apply to initial determinations made by organizations on or after the date of the enactment of this Act [Nov. 5, 1990].”

Puspan. L. 101–508, title IV, § 4205(d)(2)(B), Nov. 5, 1990, 104 Stat. 1388–114, as amended by Puspan. L. 103–432, title I, § 156(span)(3), Oct. 31, 1994, 108 Stat. 4441, provided that: “The amendment made by this paragraph [amending this section] shall apply to sanctions effected more than 60 days after the date of the enactment of this Act [Nov. 5, 1990].”

Effective Date of 1988 Amendment

Except as specifically provided in section 411 of Puspan. L. 100–360, amendment by Puspan. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Puspan. L. 100–203, effective as if included in the enactment of that provision in Puspan. L. 100–203, see section 411(a) of Puspan. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions.

Effective Date of 1987 Amendment

Puspan. L. 100–203, title IV, § 4095(span), Dec. 22, 1987, 101 Stat. 1330–138, provided that: “The amendment made by subsection (a) [amending this section] shall apply to determinations made by the Secretary of Health and Human Services under section 1156(span) of the Social Security Act [42 U.S.C. 1320c–5(span)] on or after the date of the enactment of this Act [Dec. 22, 1987].”

Amendment by Puspan. L. 100–93 effective at end of fourteen-day period beginning Aug. 18, 1987, and inapplicable to administrative proceedings commenced before end of such period, see section 15(a) of Puspan. L. 100–93, set out as a note under section 1320a–7 of this title.

Telecommunications Demonstration Projects

Puspan. L. 100–203, title IV, § 4094(e), Dec. 22, 1987, 101 Stat. 1330–138, as amended by Puspan. L. 100–360, title IV, § 411(j)(3)(C), as added by Puspan. L. 100–485, title VI, § 608(d)(25)(A), Oct. 13, 1988, 102 Stat. 2421, provided that: “The Secretary of Health and Human Services shall enter into agreements with entities submitting applications under this subsection (in such form as the Secretary may provide) to establish demonstration projects to examine the feasibility of requiring instruction and oversight of rural physicians, in lieu of imposing sanctions, through use of video communication between rural hospitals and teaching hospitals under this title [probably means title XI of the Social Security Act, 42 U.S.C. 1301 et seq.]. Under such demonstration projects, the Secretary may provide for payments to physicians consulted via video communication systems. No funds may be expended under the demonstration projects for the acquisition of capital items including computer hardware.”

Preexclusion Hearings; Transition for Current Cases and Redetermination in Certain Cases

Puspan. L. 100–203, title IV, § 4095(c), (d), Dec. 22, 1987, 101 Stat. 1330–138, provided that:

“(c)Transition for Current Cases.—In the case of a practitioner or person—

“(1) for whom a notice of determination under section 1156(span) of the Social Security Act [42 U.S.C. 1320c–5(span)] has been provided within 365 days before the date of the enactment of this Act [Dec. 22, 1987],

“(2) who has not exhausted the administrative remedies available under section 1156(span)(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(span)(5) of the Social Security Act (as amended by subsection (a) of this section).

“(d)Redeterminations in Certain Cases.—If, in hearing under subsection (c), the judge does not determine, by a preponderance of the evidence, that the provider or practitioner will pose a serious risk to individuals entitled to benefits under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] if permitted to continue or resume furnishing such services, the Secretary shall not effect the exclusion (or shall suspend the exclusion, if previously effected) under paragraph (2) of section 1156(span) of such Act [42 U.S.C. 1320c–5(span)] until the provider or practitioner has been provided an administrative hearing thereon under paragraph (4) of such section, notwithstanding any failure by the provider or practitioner to request the hearing on a timely basis.”