S.Amdt. 3242

SA 3242. Mr. CRAPO submitted an amendment intended to be proposed to
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 1053, between lines 2 and 3, insert the following:

SEC. 3403A. IMPROVEMENTS TO THE INDEPENDENT MEDICARE ADVISORY
BOARD.

Section 1899A of the Social Security Act, as added by
section 3403, is amended--
(1) in subsection (c)--
(A) in paragraph (1)--
(i) by redesignating subparagraph (B) as subparagraph (C);
and
(ii) by inserting after subparagraph (A) the following new
subparagraph:
``(B) Promulgation of regulations to provide foundation for
board proposals.--
``(i) In general.--Before developing any proposal under
this section, the Board, after consultation with the
Secretary, shall promulgate regulations through which the
Board interprets the provisions of this section that concern
the duties of the Board in order to provide a substantive and
procedural foundation for carrying out such duties. Such
regulations shall be promulgated in accordance with the
procedures under section 553 of title 5, United States Code,
that relate to substantive rules.
``(ii) Rule of construction.--Clause (i) may not be
construed as requiring that proposals under this section be
promulgated in accordance with the rulemaking procedures
referred to in clause (i).'';
(B) in paragraph (2), by adding at the end the following
new subparagraphs:
``(G) Consultation with independent advisory committee.--
``(i) In general.--Not later than 60 days after the date of
the enactment of the Patient Protection and Affordable Care
Act, the Secretary shall establish an advisory committee to
review, in accordance with procedures established in the
Federal Advisory Committee Act, each proposal to be submitted
to Congress under this section.
``(ii) Composition.--The advisory committee under clause
(i) (referred to in this subparagraph as the `Independent
Committee') shall be composed of not more than 15 members who
are medical and scientific experts appointed from among
individuals who are not officers or employees of the Federal
Government.
``(iii) Review and report.--The Board shall submit a draft
copy of each proposal to be submitted to the President under
this section to the Independent Committee for its review. The
Board shall submit such draft copy by not later than
September 1 of the year preceding the year for which the
proposal is to be submitted. Not later than November 1 of
such year, the Independent Committee shall submit a report to
Congress and the Board on the results of such review,
including matters reviewed pursuant to the succeeding
provisions of this subparagraph.
``(iv) Clinical appropriateness of payment restrictions and
coverage restrictions.--The review of the Independent
Committee of a recommendation in a proposal under this
section shall, with respect to any changes in items or
services under this title, include evaluating the differences
in treatment guidelines and variables of treatment costs for
items and services under this title that are subject to a
reduction in payment or restriction in coverage pursuant to
the recommendation. The purpose of such evaluation shall be
to ensure that the recommendation applies only to those items
and services for which such comparisons may be made in a
clinically appropriate manner.
``(v) Substantial evidence regarding certain
recommendations.--With respect to a recommendation in a
proposal of the Board that reduces payment or restricts
coverage for items and services under this title, the
Independent Committee shall determine whether the
recommendation is supported by substantial evidence.
``(vi) Special populations; health disparities.--In
reviewing a recommendation in a proposal under this section,
the Independent Committee shall evaluate the effect on
special populations and whether the recommendation is
consistent with Federal policies to reduce health
disparities.
``(vii) Public meeting to present and discuss findings.--
Before issuing a report under clause (iii), the Independent
Committee shall hold a public meeting at which it presents
the findings of its review under such clause and seeks
comments from individuals attending the meeting.
``(H) Publication of initial proposal in federal
register.--
``(i) In general.--Not later than October 1 preceding the
proposal year involved, the Board shall publish in the
Federal Register an initial proposal of the Board under this
section and shall seek comments from the public on the
proposal. The final proposal shall be published in the
Federal Register on the same date as the date on which such
proposal is submitted to the President under paragraph (3)(A)
(or under paragraph (5), as the case may be).
``(ii) Limitation on judicial review.--The publication
under clause (i) of a final proposal of the Board does not
constitute final agency action for purposes of section 704 of
title 5, United States Code.''; and
(C) in paragraph (3)(B), by striking clause (ii) and
inserting the following new clause:

[[Page S13327]]

``(ii) taking into account comments received from the
public under paragraph (2)(H)(i), an explanation of each
recommendation contained in the proposal and the reasons for
including such recommendation, and a statement of whether and
to what extent the Board considered it feasible--

``(I) to protect and improve Medicare beneficiaries' access
to necessary and evidence-based items and services, including
in rural and frontier areas; and
``(II) to otherwise comply with the requirements of
paragraph (2)(B); and''; and

(2) in subsection (e), by striking paragraph (5) and
inserting the following new paragraph:
``(5) Limitation on review.--
``(A) In general.--There shall be no administrative or
judicial review under section 1869, section 1878, or
otherwise of the implementation by the Secretary under this
subsection of the recommendations contained in a proposal,
except as provided in subparagraph (B).
``(B) Judicial review of scope of agency authority;
compliance with procedural safeguards.--
``(i) In general.--An aggrieved beneficiary or other party
may, in accordance with the procedures that apply under
section 1869(f)(3), seek review by a court of competent
jurisdiction of the implementation by the Secretary of any
recommendation in a proposal of the Board if the moving party
alleges that the only issue of law is the constitutionality
of a recommendation, or one or more issues described in
clause (ii). For purposes of this subparagraph, a regulation,
determination, or ruling by the Secretary under such a
recommendation is final agency action within the meaning of
section 704 of title 5, United States Code.
``(ii) Relevant issues; procedural safeguards.--For
purposes of clause (i), the court shall hold unlawful and set
aside a regulation, determination, or ruling by the Secretary
under a recommendation in a proposal of the Board if the
court finds that--

``(I) the regulation, determination, or ruling exceeds the
scope of the recommendation;
``(II) the Board failed to promulgate regulations in
accordance with subsection (c)(1)(B) (relating to a
substantive and procedural foundation for carrying out the
duties of the Board);
``(III) the Board failed to comply with subsection
(c)(2)(A)(ii) (relating to prohibitions against rationing
health care; increasing beneficiary cost-sharing, such as
deductibles, coinsurance, and copayments; or otherwise
restricting benefits or modifying eligibility criteria);
``(IV) the Board failed to comply with subparagraph (D),
(E), (G), or (H) of subsection (c)(2) (relating to review by
the Medicare Payment Advisory Board, review by the Secretary,
review by an independent advisory panel of experts, and
publishing initial and final proposals of the Board in the
Federal Register, respectively); or
``(V) the Board failed to comply with subsection
(c)(3)(B)(ii) (relating to providing explanations of
recommendations, providing statements of whether certain
duties are feasible, and taking into account public
comments).

``(iii) Substantial evidence regarding certain
recommendations.--With respect to a recommendation in a
proposal of the Board under this section that reduces payment
or restricts coverage for items and services under this
title:

``(I) The review by a court under clause (i) of the
implementation by the Secretary of the recommendation shall
include a review of the basis of the recommendation.
``(II) The court shall hold unlawful and set aside the
recommendation, and any regulation, determination, or ruling
by the Secretary under the recommendation, if the court finds
that the recommendation is unsupported by substantial
evidence within the meaning of section 706 of title 5, United
States Code.''.

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