I
111th CONGRESS
1st Session
H. R. 3693
IN THE HOUSE OF REPRESENTATIVES
October 1, 2009
Mr. Burgess (for himself, Mr. Deal of Georgia, Mr. Linder, Mr. Gingrey of Georgia, Mr. Roe of Tennessee, Mr. Thornberry, Mr. Dent, Mr. McCaul, Mr. Sessions, and Mr. Walden) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend title XVIII of the Social Security Act to modify Medicare physician reimbursement policies to ensure a future physician workforce, and for other purposes.
Short title; table of contents
Short title
This Act may be cited
as the Ensuring the Future Physician
Workforce Act of 2009
.
Table of contents
The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Title I—Payment and Quality Incentives
Sec. 101. Elimination of sustainable growth rate formula in 2011.
Sec. 102. Quality incentives.
Title II—Health Information Technology Incentives
Sec. 201. Safe harbors to antikickback, civil penalties, and criminal penalties for provision of health information technology and training services.
Sec. 202. Exception to limitation on certain physician referrals (under Stark) for provision of health information technology and training services to health care professionals.
Sec. 203. Rules of construction regarding use of consortia.
Title III—Information and Reports
Sec. 301. Information for physicians on Medicare billings.
Sec. 302. Information for beneficiaries on Medicare expenditures.
Sec. 303. Collection of data on Medicare savings from physicians’ services diversion.
Sec. 304. Trustees’ ongoing examination of Medicare funding.
Sec. 305. Study of reporting requirements on health care disparities.
Payment and Quality Incentives
Elimination of sustainable growth rate formula in 2011
In general
Section 1848(d) of the Social Security Act (42 U.S.C. 1395w–4(d)) is amended—
in paragraph (4)—
in subparagraph
(B), by striking subparagraph (D)
and inserting
subparagraphs (D) and (G)
; and
by adding at the end the following new subparagraph:
Rebasing to 2009 for update adjustment in 2010
In determining the update adjustment factor under subparagraph (B) for 2010—
the allowed expenditures for 2009 shall be equal to the amount of the actual expenditures for physicians’ services during 2009; and
the reference in subparagraph (B)(ii)(I) to
April 1, 1996
shall be treated as a reference to January
1, 2009
.
; and
by adding at the end the following new paragraph:
Update beginning with 2011
The update to the single conversion factor for each year beginning with 2011 shall be the percentage increase in the MEI (as defined in section 1842(i)(3)) for that year.
.
Conforming sunset
Section 1848(f)(1)(B)
of such Act is amended by inserting (ending with 2009)
after
each succeeding year
.
Quality incentives
Extension of current transitional bonus incentive payments through 2011 at 3 percent
Section 1848(m)(1) of the Social Security Act (42 U.S.C. 1395w(m)(1)) is amended—
in subparagraph
(A), by striking 2010
and inserting 2011
;
and
in subparagraph (B)—
by striking
and
at the end of clause (i);
in clause (ii), by
striking and 2010, 2 percent.
and inserting , 2 percent;
and
;
by adding at the end the following new clause:
for 2010 and 2011, 3 percent.
.
Establishment of new quality incentive system effective in 2012
In general
Section 1848 of the Social Security Act (42 U.S.C. 1395w) is amended by striking subsection (k) and by adding at the end the following:
Physician quality incentive system
In general
The Secretary shall establish a reporting system (in this
subsection referred to as the Physician Quality Incentive System
or System
) for quality measures relating to physicians’ services
that focuses on disease-specific high cost conditions. Not later than January
1, 2012, the Secretary shall—
identify the 10 health conditions that have the highest proportion of spending under this part, due in part to a gap in patient care, and for which reporting measures are feasible; and
adopt reporting measures on these conditions, based on measures developed by the Physician Consortium of the American Medical Association.
Add-on payment
In general
The Secretary shall provide, in a form and manner specified by the Secretary, for a bonus or other add-on payment for physicians that submit information required on the conditions identified under paragraph (1).
Amount
Such a bonus or add-on payment shall be equal to 1.0 percent of the payment amount otherwise computed under this section.
Timely payments
Such a payment shall be made, with respect to information submitted for a month, by not later than 30 days after the date the information is submitted for such month.
Deductible and coinsurance not applicable
Such payment shall not be subject to the deductible or coinsurance otherwise applicable to physicians’ services under this part.
Use of registry
In carrying out subparagraph (A), the Secretary shall allow the submission of the required information through an appropriate medical registry identified by the Secretary.
Monitoring
The Secretary shall monitor and report to Congress on an annual basis physician participation in the Physician Quality Incentive System, administrative burden encountered by participants, barriers to participation, as well as savings accrued to the Medicare program due to quality care improvements based on measures established under the Physician Quality Incentive System.
.
Effective date
The amendment made by paragraph (1) shall apply to payment for physicians’ services for services furnished in years beginning with 2012.
Health Information Technology Incentives
Safe harbors to antikickback, civil penalties, and criminal penalties for provision of health information technology and training services
For Civil Penalties
Section 1128A of the Social Security Act (42 U.S.C. 1320a–7a) is amended—
in subsection (b), by adding at the end the following new paragraph:
For purposes of this subsection, inducements to reduce or limit services described in paragraph (1) shall not include the practical or other advantages resulting from health information technology or related installation, maintenance, support, or training services.
; and
in subsection (i), by adding at the end the following new paragraph:
The term health information technology means hardware, software, license, right, intellectual property, equipment, or other information technology (including new versions, upgrades, and connectivity) designed or provided primarily for the electronic creation, maintenance, or exchange of health information to better coordinate care or improve health care quality, efficiency, or research.
.
For Criminal Penalties
Section 1128B of such Act (42 U.S.C. 1320a–7b) is amended—
in subsection (b)(3)—
in subparagraph
(G), by striking and
at the end;
in the subparagraph (H) added by section 237(d) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108–173; 117 Stat. 2213)—
by moving such subparagraph 2 ems to the left; and
by striking the period at the end and inserting a semicolon;
in the subparagraph (H) added by section 431(a) of such Act (117 Stat. 2287)—
by redesignating such subparagraph as subparagraph (I);
by moving such subparagraph 2 ems to the left; and
by
striking the period at the end and inserting ; and
; and
by adding at the end the following new subparagraph:
any nonmonetary remuneration (in the form of health information technology, as defined in section 1128A(i)(8), or related installation, maintenance, support, or training services) made to a person by a specified entity (as defined in subsection (g)) if—
the provision of such remuneration is without an agreement between the parties or legal condition that—
limits or restricts the use of the health information technology to services provided by the physician to individuals receiving services at the specified entity;
limits or restricts the use of the health information technology in conjunction with other health information technology; or
conditions the provision of such remuneration on the referral of patients or business to the specified entity;
such remuneration is arranged for in a written agreement that is signed by the parties involved (or their representatives) and that specifies the remuneration solicited or received (or offered or paid) and states that the provision of such remuneration is made for the primary purpose of better coordination of care or improvement of health quality, efficiency, or research; and
the specified entity providing the remuneration (or a representative of such entity) has not taken any action to disable any basic feature of any hardware or software component of such remuneration that would permit interoperability.
; and
by adding at the end the following new subsection:
Specified Entity Defined
For purposes of subsection (b)(3)(J), the term specified entity means an entity that is a hospital, group practice, prescription drug plan sponsor, a Medicare Advantage organization, or any other such entity specified by the Secretary, considering the goals and objectives of this section, as well as the goals to better coordinate the delivery of health care and to promote the adoption and use of health information technology.
.
Effective Date and Effect on State Laws
Effective date
The amendments made by subsections (a) and (b) shall take effect on the date that is 120 days after the date of the enactment of this Act.
Preemption of state laws
No State (as defined in section 1101(a) of the Social Security Act (42 U.S.C. 1301(a)) for purposes of title XI of such Act) shall have in effect a State law that imposes a criminal or civil penalty for a transaction described in section 1128A(b)(4) or section 1128B(b)(3)(J) of such Act, as added by subsections (a)(1) and (b), respectively, if the conditions described in the respective provision, with respect to such transaction, are met.
Study and Report To Assess Effect of Safe Harbors on Health System
In general
The Secretary of Health and Human Services shall conduct a study to determine the impact of each of the safe harbors described in paragraph (3). In particular, the study shall examine the following:
The effectiveness of each safe harbor in increasing the adoption of health information technology.
The types of health information technology provided under each safe harbor.
The extent to which the financial or other business relationships between providers under each safe harbor have changed as a result of the safe harbor in a way that adversely affects or benefits the health care system or choices available to consumers.
The impact of the adoption of health information technology on health care quality, cost, and access under each safe harbor.
Report
Not later than three years after the effective date described in subsection (c)(1), the Secretary of Health and Human Services shall submit to Congress a report on the study under paragraph (1).
Safe harbors described
For purposes of paragraphs (1) and (2), the safe harbors described in this paragraph are—
the safe harbor under section 1128A(b)(4) of such Act (42 U.S.C. 1320a–7a(b)(4)), as added by subsection (a)(1); and
the safe harbor under section 1128B(b)(3)(J) of such Act (42 U.S.C. 1320a–7b(b)(3)(J)), as added by subsection (b).
Exception to limitation on certain physician referrals (under Stark) for provision of health information technology and training services to health care professionals
In General
Section 1877(b) of the Social Security Act (42 U.S.C. 1395nn(b)) is amended by adding at the end the following new paragraph:
Information technology and training services
In general
Any nonmonetary remuneration (in the form of health information technology or related installation, maintenance, support or training services) made by a specified entity to a physician if—
the provision of such remuneration is without an agreement between the parties or legal condition that—
limits or restricts the use of the health information technology to services provided by the physician to individuals receiving services at the specified entity;
limits or restricts the use of the health information technology in conjunction with other health information technology; or
conditions the provision of such remuneration on the referral of patients or business to the specified entity;
such remuneration is arranged for in a written agreement that is signed by the parties involved (or their representatives) and that specifies the remuneration made and states that the provision of such remuneration is made for the primary purpose of better coordination of care or improvement of health quality, efficiency, or research; and
the specified entity (or a representative of such entity) has not taken any action to disable any basic feature of any hardware or software component of such remuneration that would permit interoperability.
Health information technology defined
For purposes of this paragraph, the term health information technology means hardware, software, license, right, intellectual property, equipment, or other information technology (including new versions, upgrades, and connectivity) designed or provided primarily for the electronic creation, maintenance, or exchange of health information to better coordinate care or improve health care quality, efficiency, or research.
Specified entity defined
For purposes of this paragraph, the term specified entity means an entity that is a hospital, group practice, prescription drug plan sponsor, a Medicare Advantage organization, or any other such entity specified by the Secretary, considering the goals and objectives of this section, as well as the goals to better coordinate the delivery of health care and to promote the adoption and use of health information technology.
.
Effective Date; Effect on State Laws
Effective date
The amendment made by subsection (a) shall take effect on the date that is 120 days after the date of the enactment of this Act.
Preemption of state laws
No State (as defined in section 1101(a) of the Social Security Act (42 U.S.C. 1301(a)) for purposes of title XI of such Act) shall have in effect a State law that imposes a criminal or civil penalty for a transaction described in section 1877(b)(6) of such Act, as added by subsection (a), if the conditions described in such section, with respect to such transaction, are met.
Study and Report To Assess Effect of Exception on Health System
In general
The Secretary of Health and Human Services shall conduct a study to determine the impact of the exception under section 1877(b)(6) of such Act (42 U.S.C. 1395nn(b)(6)), as added by subsection (a). In particular, the study shall examine the following:
The effectiveness of the exception in increasing the adoption of health information technology.
The types of health information technology provided under the exception.
The extent to which the financial or other business relationships between providers under the exception have changed as a result of the exception in a way that adversely affects or benefits the health care system or choices available to consumers.
The impact of the adoption of health information technology on health care quality, cost, and access under the exception.
Report
Not later than three years after the effective date described in subsection (b)(1), the Secretary of Health and Human Services shall submit to Congress a report on the study conducted under paragraph (1).
Rules of construction regarding use of consortia
Application to Safe Harbor From Criminal Penalties
Section 1128B(b)(3) of the
Social Security Act (42 U.S.C.
1320a–7b(b)(3)) is amended by adding after and below subparagraph (J), as added
by section 202(b)(1), the following: For purposes of subparagraph (J),
nothing in such subparagraph shall be construed as preventing a specified
entity, consistent with the specific requirements of such subparagraph, from
forming a consortium composed of health care providers, payers, employers, and
other interested entities to collectively purchase and donate health
information technology, or from offering health care providers a choice of
health information technology products in order to take into account the
varying needs of such providers receiving such products.
.
Application to Stark Exception
Paragraph (6) of section 1877(b) of the Social Security Act (42 U.S.C. 1395nn(b)), as added by section 203(a), is amended by adding at the end the following new subparagraph:
Rule of construction
For purposes of subparagraph (A), nothing in such subparagraph shall be construed as preventing a specified entity, consistent with the specific requirements of such subparagraph, from—
forming a consortium composed of health care providers, payers, employers, and other interested entities to collectively purchase and donate health information technology; or
offering health care providers a choice of health information technology products in order to take into account the varying needs of such providers receiving such products.
.
Information and Reports
Information for physicians on Medicare billings
In general
Section 1848 of the Social Security Act, as amended by section 102(b), is amended by adding at the end the following new subsection:
Annual reporting of information to physicians
In general
The Secretary shall annually report to each physician information on total billings by the physician (including laboratory tests and other items and services ordered by the physician) under this title. Such information shall be provided in a comparative format by code, weighting for practice size, number of Medicare patients treated, and relative number of Medicare beneficiaries in the geographical area.
Confidentiality
Information reported under paragraph (1) is confidential and shall not be disclosed to anyone other than the physician to whom the information relates.
Report not to be used in determining reimbursement rates for a specific physician
The Secretary shall not use information contained in a report under this subsection with respect to a physician in determining reimbursement rates under this part for items and services furnished by that physician.
.
Effective date
The Secretary of Health and Human Services shall first provide for reporting of information under the amendment made by subsection (a) for billings during 2010.
Information for beneficiaries on Medicare expenditures
In general
Section 1804 of the Social Security Act (42 U.S.C. 1395b–2) is amended by adding at the end the following new subsection:
Annual report on individual resource utilization
The Secretary shall provide for the reporting, on an annual basis, to each individual entitled to benefits under part A or enrolled under part B, on the amount of payments made to or on behalf of the individual under this title during the year involved. Such information shall be provided in a format that compares such amount with the average per capita expenditures in the region or area involved.
.
Effective date
The Secretary of Health and Human Services shall first provide for reporting of information under the amendment made by subsection (a) for payments made during 2010.
Collection of data on Medicare savings from physicians’ services diversion
In general
The Secretary of Health and Human Services shall collect data on annual savings in expenditures in the Medicare program due to physicians’ services that resulted in hospital or in-patient diversion.
Report
The Secretary shall transmit to Congress annually a summary of the data collected under subsection (a).
Trustees’ ongoing examination of Medicare funding
Examination by board of trustees
The Board of Trustees of the Federal Hospital Insurance Trust Fund under section 1817 of the Social Security Act (42 U.S.C. 1395i) and of the Federal Supplementary Medical Insurance Trust Fund under section 1841 of such Act (42 U.S.C. 1395t) shall monitor and examine the extent to which the different funding mechanisms under parts A, B, and D of title XVIII of such Act provide an appropriate alignment with the program goals of the respective parts. Such examination shall include an analysis of each of the following:
The extent to which, as the volume of services increases in physician settings under such part B, there is a corresponding reduction in similar services provided in a hospital setting under such part A.
The extent to which, as a result of increased coordination between physicians and the delivery of prescription drugs under such part D, particularly with respect to individuals with chronic conditions, there will be a decrease in hospitalizations under such part A.
The extent to which other changes in physician or other health care practice results in a shifting of expenditures among the various parts of such title XVIII.
Inclusion in annual reports
In each annual report submitted to the Congress after the date of the enactment of this Act under section 1817(b)(2) or section 1841(b)(2) of the Social Security Act (42 U.S.C. 1395i(b)(2), 1395t(b)(2)), such Board of Trustees shall include information on the matters described in subsection (a).
Study of reporting requirements on health care disparities
In general
The Secretary of Health and Human Services shall provide for a study of health care disparities in high-risk health condition areas and minority communities about the impact reporting requirements may have on physician penetration in such communities.
Report
The Secretary shall provide for the completion of the study conducted under subsection (a) by not later than January 1, 2012, and shall submit to Congress a report on the study upon its completion.