1 See References in Text note below.
of title 44 (other than the requirements under paragraphs (2)(D)(i), (5)(A), and (5)(B) of such section).
2 So in original. Probably should be “services”.
that have the greatest total dollar amount of improper payments.
Editorial Notes
References in TextSection 3544 of title 44, referred to in subsec. (e)(1), (2)(C)(iii), was repealed by Puspan. L. 113–283, § 2(a), Dec. 18, 2014, 128 Stat. 3073. Provisions similar to section 3544 of title 44 are now contained in section 3554 of title 44, as enacted by Puspan. L. 113–283.
The text of section 11331 of title 40, referred to in subsec. (e)(2)(A)(ii), was generally amended by Puspan. L. 117–167, div. B, title II, § 10246(f), Aug. 9, 2022, 136 Stat. 1492, so as to provide for the prescription by the Secretary of Commerce of standards and guidelines pertaining to Federal information systems.
CodificationIn subsec. (span)(1)(B), “section 6101 of title 41” substituted for “section 5 of title 41, United States Code,” on authority of Puspan. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
Amendments2015—Subsec. (a)(4)(G), (H). Puspan. L. 114–10, § 505(a)(1), added subpar. (G) and redesignated former subpar. (G) as (H).
Subsec. (span)(1)(B). Puspan. L. 114–10, § 509(a), substituted “10 years” for “5 years”.
Subsec. (span)(1)(D). Puspan. L. 114–115 designated existing provisions as cl. (i) and inserted span, substituted “Subject to clauses (ii) and (iii), the Secretary” for “The Secretary”, and added cls. (ii) and (iii).
Subsec. (span)(3)(A)(iv). Puspan. L. 114–10, § 509(c), added cl. (iv).
Subsec. (h). Puspan. L. 114–10, § 505(a)(2), added subsec. (h).
2010—Subsec. (h). Puspan. L. 111–152 struck out subsec. (h) which related to conduct of prepayment review.
2003—Subsec. (span)(3)(A)(i). Puspan. L. 108–173, § 940A(span), inserted at end “Such requirements shall include specific performance duties expected of a medical director of a medicare administrative contractor, including requirements relating to professional relations and the availability of such director to conduct medical determination activities within the jurisdiction of such a contractor.”
Subsec. (e). Puspan. L. 108–173, § 912(a), added subsec. (e).
Subsec. (f). Puspan. L. 108–173, § 921(span)(1), added subsec. (f).
Subsec. (g). Puspan. L. 108–173, § 921(c)(1), added subsec. (g).
Subsec. (h). Puspan. L. 108–173, § 934(a), added subsec. (h).
Statutory Notes and Related Subsidiaries
Effective Date of 2015 AmendmentPuspan. L. 114–115, § 7(span), Dec. 28, 2015, 129 Stat. 3134, provided that:“(1)In general.—The amendments made by subsection (a) [amending this section] shall apply to contracts entered into or renewed on or after the date that is 3 years after the date of enactment of this Act [Dec. 28, 2015].
“(2)Application to existing contracts.—In the case of contracts in existence on or after the date of the enactment of this Act and that are not subject to the effective date under paragraph (1), the Secretary of Health and Human Services shall, when appropriate and practicable, seek to apply the incentives provided for in the amendments made by subsection (a) through contract modifications.”
Puspan. L. 114–10, title V, § 509(span), Apr. 16, 2015, 129 Stat. 170, provided that: “The amendments made by subsection (a) [amending this section] shall apply to contracts entered into on or after, and to contracts in effect as of, the date of the enactment of this Act [Apr. 16, 2015].”
Effective Date of 2003 AmendmentPuspan. L. 108–173, title IX, § 921(c)(2), Dec. 8, 2003, 117 Stat. 2390, provided that: “The amendment made by paragraph (1) [amending this section] shall take effect October 1, 2004.”
Puspan. L. 108–173, title IX, § 934(span), Dec. 8, 2003, 117 Stat. 2407, provided that:“(1)In general.—Except as provided in this subsection, the amendment made by subsection (a) [amending this section] shall take effect 1 year after the date of the enactment of this Act [Dec. 8, 2003].
“(2)Deadline for promulgation of certain regulations.—The Secretary [of Health and Human Services] shall first issue regulations under section 1874A(h) of the Social Security Act [42 U.S.C. 1395kk–1(h)], as added by subsection (a), by not later than 1 year after the date of the enactment of this Act [Dec. 8, 2003]. “(3)Application of standard protocols for random prepayment review.—Section 1874A(h)(1)(B) of the Social Security Act [42 U.S.C. 1395kk–1(h)(1)(B)], as added by subsection (a), shall apply to random prepayment reviews conducted on or after such date (not later than 1 year after the date of the enactment of this Act [Dec. 8, 2003]) as the Secretary shall specify.”
Effective Date; Transition RulePuspan. L. 108–173, title IX, § 911(d), Dec. 8, 2003, 117 Stat. 2385, provided that:“(1)Effective date.—“(A)In general.—Except as otherwise provided in this subsection, the amendments made by this section [enacting this section and amending sections 1395h and 1395u of this title] shall take effect on October 1, 2005, and the Secretary [of Health and Human Services] is authorized to take such steps before such date as may be necessary to implement such amendments on a timely basis.
“(B)Construction for current contracts.—Such amendments shall not apply to contracts in effect before the date specified under subparagraph (A) that continue to retain the terms and conditions in effect on such date (except as otherwise provided under this Act [see Tables for classification], other than under this section) until such date as the contract is let out for competitive bidding under such amendments.
“(C)Deadline for competitive bidding.—The Secretary shall provide for the letting by competitive bidding of all contracts for functions of medicare administrative contractors for annual contract periods that begin on or after October 1, 2011.
“(2)General transition rules.—“(A)Authority to continue to enter into new agreements and contracts and waiver of provider nomination provisions during transition.—Prior to October 1, 2005, the Secretary may, consistent with subparagraph (B), continue to enter into agreements under section 1816 and contracts under section 1842 of the Social Security Act (42 U.S.C. 1395h, 1395u). The Secretary may enter into new agreements under section 1816 prior to October 1, 2005, without regard to any of the provider nomination provisions of such section. “(B)Appropriate transition.—The Secretary shall take such steps as are necessary to provide for an appropriate transition from agreements under section 1816 and contracts under section 1842 of the Social Security Act (42 U.S.C. 1395h, 1395u) to contracts under section 1874A [42 U.S.C. 1395kk–1], as added by subsection (a)(1). “(3)Authorizing continuation of mip functions under current contracts and agreements and under transition contracts.—Notwithstanding the amendments made by this section [enacting this section and amending sections 1395h and 1395u of this title], the provisions contained in the exception in section 1893(d)(2) of the Social Security Act (42 U.S.C. 1395ddd(d)(2)) shall continue to apply during the period that begins on the date of the enactment of this Act [Dec. 8, 2003] and ends on October 1, 2011, and any reference in such provisions to an agreement or contract shall be deemed to include a contract under section 1874A of such Act [42 U.S.C. 1395kk–1], as inserted by subsection (a)(1), that continues the activities referred to in such provisions.”
ConstructionPuspan. L. 108–173, title IX, § 901(a), Dec. 8, 2003, 117 Stat. 2374, provided that: “Nothing in this title [see Tables for classification] shall be construed—“(1) to compromise or affect existing legal remedies for addressing fraud or abuse, whether it be criminal prosecution, civil enforcement, or administrative remedies, including under sections 3729 through 3733 of title 31, United States Code (commonly known as the ‘False Claims Act’); or
“(2) to prevent or impede the Department of Health and Human Services in any way from its ongoing efforts to eliminate waste, fraud, and abuse in the medicare program.
Furthermore, the consolidation of medicare administrative contracting set forth in this division [Puspan. L. 108–173 does not contain any divisions] does not constitute consolidation of the Federal Hospital Insurance Trust Fund and the Federal Supplementary Medical Insurance Trust Fund or reflect any position on that issue.”
Consideration of Incorporation of Current Law StandardsPuspan. L. 108–173, title IX, § 911(a)(2), Dec. 8, 2003, 117 Stat. 2383, provided that: “In developing contract performance requirements under section 1874A(span) of the Social Security Act [42 U.S.C. 1395kk–1(span)], as inserted by paragraph (1), the Secretary [of Health and Human Services] shall consider inclusion of the performance standards described in sections 1816(f)(2) of such Act [42 U.S.C. 1395h(f)(2)] (relating to timely processing of reconsiderations and applications for exemptions) and section 1842(span)(2)(B) of such Act [42 U.S.C. 1395u(span)(2)(B)] (relating to timely review of determinations and fair hearing requests), as such sections were in effect before the date of the enactment of this Act [Dec. 8, 2003].”
ReferencesPuspan. L. 108–173, title IX, § 911(e), Dec. 8, 2003, 117 Stat. 2386, provided that: “On and after the effective date provided under subsection (d)(1) [set out above], any reference to a fiscal intermediary or carrier under title XI or XVIII of the Social Security Act [42 U.S.C. 1301 et seq., 1395 et seq.] (or any regulation, manual instruction, interpretative rule, statement of policy, or guideline issued to carry out such titles) shall be deemed a reference to a medicare administrative contractor (as provided under section 1874A of the Social Security Act [42 U.S.C. 1395kk–1]).”
Secretarial Submission of Legislative ProposalPuspan. L. 108–173, title IX, § 911(f), Dec. 8, 2003, 117 Stat. 2386, provided that: “Not later than 6 months after the date of the enactment of this Act [Dec. 8, 2003], the Secretary [of Health and Human Services] shall submit to the appropriate committees of Congress a legislative proposal providing for such technical and conforming amendments in the law as are required by the provisions of this section [enacting this section, amending sections 1395h and 1395u of this title, and enacting provisions set out as notes under this section].”
Reports on ImplementationPuspan. L. 108–173, title IX, § 911(g), Dec. 8, 2003, 117 Stat. 2386, provided that:“(1)Plan for implementation.—By not later than October 1, 2004, the Secretary [of Health and Human Services] shall submit a report to Congress and the Comptroller General of the United States that describes the plan for implementation of the amendments made by this section [enacting this section and amending sections 1395h and 1395u of this title]. The Comptroller General shall conduct an evaluation of such plan and shall submit to Congress, not later than 6 months after the date the report is received, a report on such evaluation and shall include in such report such recommendations as the Comptroller General deems appropriate.
“(2)Status of implementation.—The Secretary shall submit a report to Congress not later than October 1, 2008, that describes the status of implementation of such amendments and that includes a description of the following:“(A) The number of contracts that have been competitively bid as of such date.
“(B) The distribution of functions among contracts and contractors.
“(C) A timeline for complete transition to full competition.
“(D) A detailed description of how the Secretary has modified oversight and management of medicare contractors to adapt to full competition.”
Application to Fiscal Intermediaries and CarriersPuspan. L. 108–173, title IX, § 912(span), Dec. 8, 2003, 117 Stat. 2388, provided that:“(1)In general.—The provisions of section 1874A(e)(2) of the Social Security Act [42 U.S.C. 1395kk–1(e)(2)] (other than subparagraph (B)), as added by subsection (a), shall apply to each fiscal intermediary under section 1816 of the Social Security Act (42 U.S.C. 1395h) and each carrier under section 1842 of such Act (42 U.S.C. 1395u) in the same manner as they apply to medicare administrative contractors under such provisions. “(2)Deadline for initial evaluation.—In the case of such a fiscal intermediary or carrier with an agreement or contract under such respective section in effect as of the date of the enactment of this Act [Dec. 8, 2003], the first evaluation under section 1874A(e)(2)(A) of the Social Security Act [42 U.S.C. 1395kk–1(e)(2)(A)] (as added by subsection (a)), pursuant to paragraph (1), shall be completed (and a report on the evaluation submitted to the Secretary [of Health and Human Services]) by not later than 1 year after such date.”
Puspan. L. 108–173, title IX, § 921(span)(2), Dec. 8, 2003, 117 Stat. 2389, provided that: “The provisions of section 1874A(f) of the Social Security Act [42 U.S.C. 1395kk–1(f)], as added by paragraph (1), shall apply to each fiscal intermediary under section 1816 of the Social Security Act (42 U.S.C. 1395h) and each carrier under section 1842 of such Act (42 U.S.C. 1395u) in the same manner as they apply to medicare administrative contractors under such provisions.”
Puspan. L. 108–173, title IX, § 921(c)(3), Dec. 8, 2003, 117 Stat. 2390, provided that: “The provisions of section 1874A(g) of the Social Security Act [42 U.S.C. 1395kk–1(g)], as added by paragraph (1), shall apply to each fiscal intermediary under section 1816 of the Social Security Act (42 U.S.C. 1395h) and each carrier under section 1842 of such Act (42 U.S.C. 1395u) in the same manner as they apply to medicare administrative contractors under such provisions.”
Puspan. L. 108–173, title IX, § 934(c), Dec. 8, 2003, 117 Stat. 2407, provided that: “The provisions of section 1874A(h) of the Social Security Act [42 U.S.C. 1395kk–1(h)], as added by subsection (a), shall apply to each fiscal intermediary under section 1816 of the Social Security Act (42 U.S.C. 1395h) and each carrier under section 1842 of such Act (42 U.S.C. 1395u) in the same manner as they apply to medicare administrative contractors under such provisions.”
Policy Development Regarding Evaluation and Management (E & M) Documentation GuidelinesPuspan. L. 108–173, title IX, § 941, Dec. 8, 2003, 117 Stat. 2418, provided that:“(a)In General.—The Secretary [of Health and Human Services] may not implement any new or modified documentation guidelines (which for purposes of this section includes clinical examples) for evaluation and management physician services under the [sic] title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] on or after the date of the enactment of this Act [Dec. 8, 2003] unless the Secretary—“(1) has developed the guidelines in collaboration with practicing physicians (including both generalists and specialists) and provided for an assessment of the proposed guidelines by the physician community;
“(2) has established a plan that contains specific goals, including a schedule, for improving the use of such guidelines;
“(3) has conducted appropriate and representative pilot projects under subsection (span) to test such guidelines;
“(4) finds, based on reports submitted under subsection (span)(5) with respect to pilot projects conducted for such or related guidelines, that the objectives described in subsection (c) will be met in the implementation of such guidelines; and
“(5) has established, and is implementing, a program to educate physicians on the use of such guidelines and that includes appropriate outreach.
The Secretary shall make changes to the manner in which existing evaluation and management documentation guidelines are implemented to reduce paperwork burdens on physicians.
“(span)Pilot Projects to Test Modified or New Evaluation and Management Documentation Guidelines.—“(1)In general.—With respect to proposed new or modified documentation guidelines referred to in subsection (a), the Secretary shall conduct under this subsection appropriate and representative pilot projects to test the proposed guidelines.
“(2)Length and consultation.—Each pilot project under this subsection shall—“(A) be voluntary;
“(B) be of sufficient length as determined by the Secretary (but in no case to exceed 1 year) to allow for preparatory physician and medicare contractor education, analysis, and use and assessment of potential evaluation and management guidelines; and
“(C) be conducted, in development and throughout the planning and operational stages of the project, in consultation with practicing physicians (including both generalists and specialists).
“(3)Range of pilot projects.—Of the pilot projects conducted under this subsection with respect to proposed new or modified documentation guidelines—“(A) at least one shall focus on a peer review method by physicians (not employed by a medicare contractor) which evaluates medical record information for claims submitted by physicians identified as statistical outliers relative to codes used for billing purposes for such services;
“(B) at least one shall focus on an alternative method to detailed guidelines based on physician documentation of face to face encounter time with a patient;
“(C) at least one shall be conducted for services furnished in a rural area and at least one for services furnished outside such an area; and
“(D) at least one shall be conducted in a setting where physicians bill under physicians’ services in teaching settings and at least one shall be conducted in a setting other than a teaching setting.
“(4)Study of impact.—Each pilot project shall examine the effect of the proposed guidelines on—“(A) different types of physician practices, including those with fewer than 10 full-time-equivalent employees (including physicians); and
“(B) the costs of physician compliance, including education, implementation, auditing, and monitoring.
“(5)Report on pilot projects.—Not later than 6 months after the date of completion of pilot projects carried out under this subsection with respect to a proposed guideline described in paragraph (1), the Secretary shall submit to Congress a report on the pilot projects. Each such report shall include a finding by the Secretary of whether the objectives described in subsection (c) will be met in the implementation of such proposed guideline.
“(c)Objectives for Evaluation and Management Guidelines.—The objectives for modified evaluation and management documentation guidelines developed by the Secretary shall be to—“(1) identify clinically relevant documentation needed to code accurately and assess coding levels accurately;
“(2) decrease the level of non-clinically pertinent and burdensome documentation time and span in the physician’s medical record;
“(3) increase accuracy by reviewers; and
“(4) educate both physicians and reviewers.
“(d)Study of Simpler, Alternative Systems of Documentation for Physician Claims.—“(1)Study.—The Secretary shall carry out a study of the matters described in paragraph (2).
“(2)Matters described.—The matters referred to in paragraph (1) are—“(A) the development of a simpler, alternative system of requirements for documentation accompanying claims for evaluation and management physician services for which payment is made under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]; and “(B) consideration of systems other than current coding and documentation requirements for payment for such physician services.
“(3)Consultation with practicing physicians.—In designing and carrying out the study under paragraph (1), the Secretary shall consult with practicing physicians, including physicians who are part of group practices and including both generalists and specialists.
“(4)Application of hipaa uniform coding requirements.—In developing an alternative system under paragraph (2), the Secretary shall consider requirements of administrative simplification under part C of title XI of the Social Security Act [42 U.S.C. 1320d et seq.]. “(5)Report to congress.—“(A) Not later than October 1, 2005, the Secretary shall submit to Congress a report on the results of the study conducted under paragraph (1).
“(B) The Medicare Payment Advisory Commission shall conduct an analysis of the results of the study included in the report under subparagraph (A) and shall submit a report on such analysis to Congress.
“(e)Study on Appropriate Coding of Certain Extended Office Visits.—The Secretary shall conduct a study of the appropriateness of coding in cases of extended office visits in which there is no diagnosis made. Not later than October 1, 2005, the Secretary shall submit a report to Congress on such study and shall include recommendations on how to code appropriately for such visits in a manner that takes into account the amount of time the physician spent with the patient.
“(f)Definitions.—In this section—“(1) the term ‘rural area’ has the meaning given that term in section 1886(d)(2)(D) of the Social Security Act (42 U.S.C. 1395ww(d)(2)(D)); and “(2) the term ‘teaching settings’ are those settings described in section 415.150 of title 42, Code of Federal Regulations.”
