S.Amdt. 3361

SA 3361. Mr. CARDIN (for himself and Mr. Heller) submitted an
amendment intended to be proposed by him to the bill S. 524, to
authorize the Attorney General to award grants to address the national
epidemics of prescription opioid abuse and heroin use; which was
ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. __. MEDICARE PAYMENT FOR THERAPY SERVICES.

(a) Repeal of Therapy Cap and 1-year Extension of Threshold
for Manual Medical Review.--Section 1833(g) of the Social
Security Act (42 U.S.C. 1395l(g)) is amended--
(1) in paragraph (4)--
(A) by striking ``This subsection'' and inserting ``Except
as provided in paragraph (5)(C)(iii), this subsection''; and
(B) by inserting the following before the period at the
end: ``or with respect to services furnished on or after the
date of enactment of subsection (aa)''; and
(2) in paragraph (5)--
(A) in subparagraph (A), in the first sentence, by striking
``December 31, 2017'' and inserting ``the date of enactment
of the Comprehensive Addiction and Recovery Act of 2016'';
and
(B) in subparagraph (C), by adding at the end the following
new clause:

[[Page S1145]]

``(iii) Beginning on the date of enactment of subsection
(aa) and ending on the day before the date of the
implementation of such subsection, the manual medical review
process described in clause (i), subject to subparagraph (E),
shall apply with respect to expenses incurred in a year for
services described in paragraphs (1) and (3) (including
services described in subsection (a)(8)(B)) that exceed the
threshold described in clause (ii) for the year.''; and
(3) in paragraph (6)(A)--
(A) by striking ``December 31, 2017'' and inserting ``the
date of enactment of the Comprehensive Addiction and Recovery
Act of 2016''; and
(B) by striking ``2012 through 2017'' and inserting ``the
period beginning on January 1, 2012, and ending on such date
of enactment''.
(b) Medical Review of Outpatient Therapy Services.--
(1) Medical review of outpatient therapy services.--Section
1833 of the Social Security Act (42 U.S.C. 1395l) is amended
by adding at the end the following new subsection:
``(aa) Medical Review of Outpatient Therapy Services.--
``(1) In general.--
``(A) Process for medical review.--The Secretary shall
implement a process for the medical review (as described in
paragraph (2)) of outpatient therapy services (as defined in
paragraph (10)) and, subject to paragraph (12), apply such
process to such services furnished on or after the date that
is 12 months after the date of enactment of this subsection,
focusing on services identified under subparagraph (B).
``(B) Identification of services for review.--Under the
process, the Secretary shall identify services for medical
review, using such factors as the Secretary determines
appropriate, which may include the following:
``(i) Services furnished by a therapy provider (as defined
in paragraph (10)) who, in a prior period, has had a high
claims denial percentage or is less compliant with other
applicable requirements under this title.
``(ii) Services furnished by a therapy provider whose
pattern of billing is aberrant compared to peers or otherwise
has questionable billing practices, such as billing medically
unlikely units of services in a day.
``(iii) Services furnished by a therapy provider that is
newly enrolled under this title or has not previously
furnished therapy services under this part.
``(iv) Services furnished to treat a type of medical
condition.
``(v) Services identified by use of the standardized data
elements required to be reported under section 1834(t).
``(vi) Services furnished by a therapy provider who is part
of a group that includes a therapy provider identified by
factors described in this subparagraph.
``(vii) Other services as determined appropriate by the
Secretary.
``(2) Medical review.--
``(A) Prior authorization medical review.--
``(i) In general.--Subject to the succeeding provisions of
this subparagraph, the Secretary shall use prior
authorization medical review for outpatient therapy services
furnished to an individual above one or more thresholds
established by the Secretary, such as a dollar threshold or a
threshold based on other factors.
``(ii) Ending application of prior authorization for a
therapy provider.--The Secretary shall end the application of
prior authorization medical review to outpatient therapy
services furnished by a therapy provider if the Secretary
determines that the provider has a low denial rate under such
prior authorization. The Secretary may subsequently reapply
prior authorization medical review to such therapy provider
if the Secretary determines it to be appropriate.
``(iii) Prior authorization of multiple services.--The
Secretary shall, where practicable, provide for prior
authorization medical review for multiple services at a
single time, such as services in a therapy plan of care
described in section 1861(p)(2).
``(B) Other types of medical review.--The Secretary may use
pre-payment review or post-payment review for services
identified under paragraph (1)(B) that are not subject to
prior authorization medical review under subparagraph (A).
``(C) Relationship to law enforcement activities.--The
Secretary may determine that medical review under this
subsection does not apply in the case where potential fraud
may be involved.
``(3) Review contractors.--The Secretary shall conduct
prior authorization medical review of outpatient therapy
services under this subsection using medicare administrative
contractors (as described in section 1874A) or other review
contractors (other than contractors under section 1893(h) or
other contractors paid on a contingent basis).
``(4) No payment without prior authorization.--With respect
to an outpatient therapy service for which prior
authorization medical review under this subsection applies,
the following shall apply:
``(A) Prior authorization determination.--The Secretary
shall make a determination, prior to the service being
furnished, of whether the service would or would not meet the
applicable requirements of section 1862(a)(1)(A).
``(B) Denial of payment.--Subject to paragraph (6), no
payment shall be made under this part for the service unless
the Secretary determines pursuant to subparagraph (A) that
the service would meet the applicable requirements of such
section.
``(5) Submission of information.--A therapy provider may
submit the information necessary for medical review by fax,
by mail, or by electronic means. The Secretary shall make
available the electronic means described in the preceding
sentence as soon as practicable, but not later than 24 months
after the date of enactment of this subsection.
``(6) Timeliness.--If the Secretary does not make a prior
authorization determination under paragraph (4)(A) within 10
business days of the date of the Secretary's receipt of
medical documentation needed to make such determination,
paragraph (4)(B) shall not apply.
``(7) Construction.--With respect to an outpatient therapy
service that has been affirmed by medical review under this
subsection, nothing in this subsection shall be construed to
preclude the subsequent denial of a claim for such service
that does not meet other applicable requirements under this
Act or any other provision of law.
``(8) Beneficiary protections.--In the case where payment
may not be made as a result of application of medical review
under this subsection, section 1879 shall apply in the same
manner as such section applies to a denial that is made by
reason of section 1862(a)(1).
``(9) Implementation.--
``(A) Authority.--The Secretary may implement the
provisions of this subsection by interim final rule with
comment period.
``(B) Administration.--Chapter 35 of title 44, United
States Code, shall not apply to medical review under this
subsection.
``(C) Limitation.--There shall be no administrative or
judicial review under section 1869, section 1878, or
otherwise of the identification of services for medical
review or the process for medical review under this
subsection.
``(10) Definitions.--For purposes of this subsection:
``(A) Outpatient therapy services.--The term `outpatient
therapy services' means the following services for which
payment is made under section 1848, 1834(g), or 1834(k):
``(i) Physical therapy services of the type described in
section 1861(p).
``(ii) Speech-language pathology services of the type
described in such section though the application of section
1861(ll)(2).
``(iii) Occupational therapy services of the type described
in section 1861(p) through the operation of section 1861(g).
``(B) Therapy provider.--The term `therapy provider' means
a provider of services (as defined in section 1861(u)) or a
supplier (as defined in section 1861(d)) who submits a claim
for outpatient therapy services.
``(11) Funding.--For purposes of implementing this
subsection, the Secretary shall provide for the transfer,
from the Federal Supplementary Medical Insurance Trust Fund
under section 1841, of $35,000,000 to the Centers for
Medicare & Medicaid Services Program Management Account for
each fiscal year (beginning with fiscal year 2016). Amounts
transferred under this paragraph shall remain available until
expended.
``(12) Scaling back.--
``(A) Periodic determinations.--Beginning with 2020, and
every two years thereafter, the Secretary shall--
``(i) make a determination of the improper payment rate for
outpatient therapy services for a 12-month period; and
``(ii) make such determination publicly available.
``(B) Scaling back.--If the improper payment rate for
outpatient therapy services determined for a 12-month period
under subparagraph (A) is 50 percent or less of the Medicare
fee-for-service improper payment rate for such period, the
Secretary shall--
``(i) reduce the amount and extent of medical review
conducted for a prospective year under the process
established in this subsection; and
``(ii) return an appropriate portion of the funding
provided for such year under paragraph (11).''.
(2) GAO study and report.--
(A) Study.--The Comptroller General of the United States
shall conduct a study on the effectiveness of medical review
of outpatient therapy services under section 1833(aa) of the
Social Security Act, as added by paragraph (1). Such study
shall include an analysis of--
(i) aggregate data on--

(I) the number of individuals, therapy providers, and
claims subject to such review; and
(II) the number of reviews conducted under such section;
and

(ii) the outcomes of such reviews.
(B) Report.--Not later than 3 years after the date of
enactment of this Act, the Comptroller General shall submit
to Congress a report containing the results of the study
under subparagraph (A), together with recommendations for
such legislation and administrative action as the Comptroller
General determines appropriate.
(c) Collection of Standardized Data Elements for Outpatient
Therapy Services.--
(1) Collection of standardized data elements for outpatient
therapy services.--Section 1834 of the Social Security Act
(42 U.S.C. 1395m) is amended by adding at the end the
following new subsection:
``(t) Collection of Standardized Data Elements for
Outpatient Therapy Services.--

[[Page S1146]]

``(1) Standardized data elements.--
``(A) In general.--Not later than 6 months after the date
of enactment of this subsection, the Secretary shall post on
the Internet website of the Centers for Medicare & Medicaid
Services a draft list of standardized data elements for
individuals receiving outpatient therapy services.
``(B) Categories.--
``(i) In general.--Such standardized data elements shall
include information with respect to the following categories,
as determined appropriate by the Secretary:

``(I) Functional status.
``(II) Demographic information.
``(III) Diagnosis.
``(IV) Severity.
``(V) Affected body structures and functions.
``(VI) Limitations with activities of daily living and
participation.
``(VII) Other categories determined to be appropriate by
the Secretary.

``(ii) Alignment with categories for reporting of
assessment data under impact.--The Secretary shall, as
appropriate, align the functional status category under
subclause (I) of clause (i) and the other categories under
subclauses (II) through (VII) of such clause with the
categories described in clauses (i) through (vi) of section
1899B(b)(1)(B).
``(C) Solicitation of input.--The Secretary shall accept
input from stakeholders through the date that is 60 days
after the date the Secretary posts the draft list of
standardized data elements pursuant to subparagraph (A). In
seeking such input, the Secretary shall use one or more
mechanisms to solicit input from stakeholders that may
include use of open door forums, town hall meetings, requests
for information, or other mechanisms determined appropriate
by the Secretary.
``(D) Operational list of standardized data elements.--Not
later than 120 days after the end of the period for accepting
input described in subparagraph (C), the Secretary, taking
into account such input, shall post on the Internet website
of the Centers for Medicare & Medicaid Services an
operational list of standardized data elements.
``(E) Subsequent revisions.--Subsequent revisions to the
operational list of standardized data elements shall be made
through rulemaking. Such revisions may be based on experience
and input from stakeholders.
``(2) System to report standardized data elements.--
``(A) In general.--Not later than 18 months after the date
the Secretary posts the operational list of standardized data
elements pursuant to paragraph (1)(D), the Secretary shall
develop and implement an electronic system (which may be a
web portal) for therapy providers to report the standardized
data elements for individuals with respect to outpatient
therapy services.
``(B) Stakeholder input.--The Secretary shall seek input
from stakeholders regarding the best way to report the
standardized data elements under this subsection.
``(3) Reporting.--
``(A) Frequency of reporting.--
``(i) In general.--Subject to clauses (ii) and (iii), the
Secretary shall specify the frequency of reporting
standardized data elements under this subsection.
``(ii) Stakeholder input.--The Secretary shall seek input
from stakeholders regarding the frequency of the reporting of
such data elements.
``(iii) Alignment with frequency for reporting of
assessment data under impact.--The Secretary shall, as
appropriate, align the frequency of the reporting of such
data elements with respect to an individual under this
subsection with the frequency in which data is required to be
submitted with respect to an individual under the second
sentence of section 1899B(b)(1)(A).
``(B) Reporting requirement.--Beginning on the date the
system to report standardized data elements under this
subsection is operational, no payment shall be made under
this part for outpatient therapy services furnished to an
individual unless a therapy provider reports the standardized
data elements for such individual.
``(4) Report on new payment system for outpatient therapy
services.--
``(A) In general.--Not later than 24 months after the date
described in paragraph (3)(B), the Secretary shall submit to
Congress a report on the design of a new payment system for
outpatient therapy services. The report shall include an
analysis of the standardized data elements collected and
other appropriate data and information.
``(B) Features.--Such report shall consider--
``(i) appropriate adjustments to payment (such as case mix
and outliers);
``(ii) payments on an episode of care basis; and
``(iii) reduced payment for multiple episodes.
``(C) Consultation.--The Secretary shall consult with
stakeholders regarding the design of such a new payment
system.
``(5) Implementation.--
``(A) Funding.--For purposes of implementing this
subsection, the Secretary shall provide for the transfer,
from the Federal Supplementary Medical Insurance Trust Fund
under section 1841, of $7,000,000 to the Centers for Medicare
& Medicaid Services Program Management Account for each of
fiscal years 2016 through 2020. Amounts transferred under
this subparagraph shall remain available until expended.
``(B) Administration.--Chapter 35 of title 44, United
States Code, shall not apply to specification of the
standardized data elements and implementation of the system
to report such standardized data elements under this
subsection.
``(C) Limitation.--There shall be no administrative or
judicial review under section 1869, section 1878, or
otherwise of the specification of standardized data elements
required under this subsection or the system to report such
standardized data elements.
``(D) Definition of outpatient therapy services and therapy
provider.--In this subsection, the terms `outpatient therapy
services' and `therapy provider' have the meaning given those
terms in section 1833(aa).''.
(2) Sunset of current claims-based collection of therapy
data.--Section 3005(g)(1) of the Middle Class Tax Extension
and Job Creation Act of 2012 (42 U.S.C. 1395l note) is
amended, in the first sentence, by inserting ``and ending on
the date the system to report standardized data elements
under section 1834(t) of the Social Security Act (42 U.S.C.
1395m(t)) is implemented,'' after ``January 1, 2013,''.
(d) Reporting of Certain Information.--Section 1842(t) of
the Social Security Act (42 U.S.C. 1395u(t)) is amended by
adding at the end the following new paragraph:
``(3) Each request for payment, or bill submitted, by a
therapy provider (as defined in section 1833(aa)(10)) for an
outpatient therapy service (as defined in such section)
furnished by a therapy assistant on or after January 1, 2018,
shall include (in a form and manner specified by the
Secretary) an indication that the service was furnished by a
therapy assistant.''.
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