42 U.S.C. § 1395fff — Prospective payment for home health

Page 3983 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff section before the effective date of the repeals under subsection (d), subject to the numerical limitation under the amendment made by paragraph (1), the ap- plication shall be deemed approved unless the Sec- retary of Health and Human Services, within 90 days after the date of its submission to the Secretary, ei- ther denies such request in writing or informs the ap- plicant in writing with respect to any additional in- formation which is needed in order to make a final determination with respect to the application. After the date the Secretary receives such additional infor- mation, the application shall be deemed approved un- less the Secretary, within 90 days of such date, denies such request. ‘‘(c) PRIORITY AND SPECIAL CONSIDERATION IN APPLICA- TION.—During the 3-year period beginning on the date of the enactment of this Act [Aug. 5, 1997]: ‘‘(1) PROVIDER STATUS.—The Secretary of Health and Human Services shall give priority in processing applications of entities to qualify as PACE programs under section 1894 or 1934 of the Social Security Act [42 U.S.C. 1395eee, 1396u–4]— ‘‘(A) first, to entities that are operating a PACE demonstration waiver program (as defined in sec- tions 1894(a)(7) and 1934(a)(7) of such Act [42 U.S.C. 1395eee(a)(7), 1396u–4(a)(7)]); and ‘‘(B) then to entities that have applied to operate such a program as of May 1, 1997. ‘‘(2) NEW WAIVERS.—The Secretary shall give pri- ority, in the awarding of additional waivers under section 9412(b) of the Omnibus Budget Reconciliation Act of 1986 [see subsec. (d) below]— ‘‘(A) to any entities that have applied for such waivers under such section as of May 1, 1997; and ‘‘(B) to any entity that, as of May 1, 1997, has for- mally contracted with a State to provide services for which payment is made on a capitated basis with an understanding that the entity was seeking to become a PACE provider. ‘‘(3) SPECIAL CONSIDERATION.—The Secretary shall give special consideration, in the processing of appli- cations described in paragraph (1) and the awarding of waivers described in paragraph (2), to an entity which as of May 1, 1997, through formal activities (such as entering into contracts for feasibility stud- ies) has indicated a specific intent to become a PACE provider. ‘‘(d) REPEAL OF CURRENT PACE DEMONSTRATION PROJECT WAIVER AUTHORITY.— ‘‘(1) IN GENERAL.—Subject to paragraph (2), the fol- lowing provisions of law are repealed: ‘‘(A) Section 603(c) of the Social Security Amend- ments of 1983 (Public Law 98–21) [97 Stat. 168]. ‘‘(B) Section 9220 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (Public Law 99–272) [100 Stat. 183]. ‘‘(C) Section 9412(b) of the Omnibus Budget Rec- onciliation Act of 1986 (Public Law 99–509) [100 Stat. 2062]. ‘‘(2) DELAY IN APPLICATION TO CURRENT WAIVERS.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B), in the case of waivers granted with respect to a PACE program before July 1, 2000, the repeals made by paragraph (1) shall not apply until the end of a transition period (of up to 36 months) that begins on the initial effective date of such regulations, and that allows sufficient time for an orderly transition from demonstration project authority to general authority provided under the amendments made by this subtitle [subtitle I (§§ 4801–4804) of title IV of Pub. L. 105–33, enacting this section and section 1396u–4 of this title and amending sections 1396b, 1396d, 1396r–5, and 1396v of this title]. ‘‘(B) STATE OPTION TO SEEK EXTENSION OF CURRENT PERIOD.—A State may elect to maintain the PACE programs which (as of the date of the enactment of this Act [Aug. 5, 1997]) were operating in the State under the authority described in paragraph (1) until a date (specified by the State) that is not later than 4 years after the initial effective date of regulations described in subsection (a). If a State makes such an election, the repeals made by paragraph (1) shall not apply to the programs until the date so speci- fied, but only so long as such programs continue to operate under the same terms and conditions as apply to such programs as of the date of the enact- ment of this Act, and subparagraph (A) shall not apply to such programs.’’ PACE PROGRAMS; STUDY AND REPORTS Pub. L. 105–33, title IV, § 4804(a), (b), Aug. 5, 1997, 111 Stat. 551, provided that: ‘‘(a) STUDY.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services (in close consultation with State ad- ministering agencies, as defined in sections 1894(a)(8) and 1934(a)(8) of the Social Security Act [42 U.S.C. 1395eee(a)(8), 1396u–4(a)(8)]) shall conduct a study of the quality and cost of providing PACE program serv- ices under the medicare and medicaid programs under the amendments made by this subtitle [subtitle I (§§ 4801–4804) of title IV of Pub. L. 105–33, enacting this section and section 1396u–4 of this title and amending sections 1396b, 1396d, 1396r–5, and 1396v of this title]. ‘‘(2) STUDY OF PRIVATE, FOR-PROFIT PROVIDERS.— Such study shall specifically compare the costs, qual- ity, and access to services by entities that are pri- vate, for-profit entities operating under demonstra- tion projects waivers granted under sections 1894(h) and 1934(h) of the Social Security Act [42 U.S.C. 1395eee(h), 1396u–4(h)] with the costs, quality, and ac- cess to services of other PACE providers. ‘‘(b) REPORT.— ‘‘(1) IN GENERAL.—Not later than 4 years after the date of the enactment of this Act [Aug. 5, 1997], the Secretary shall provide for a report to Congress on the impact of such amendments on quality and cost of services. The Secretary shall include in such report such recommendations for changes in the operation of such amendments as the Secretary deems appro- priate. ‘‘(2) TREATMENT OF PRIVATE, FOR-PROFIT PRO- VIDERS.—The report shall include specific findings on whether any of the following findings is true: ‘‘(A) The number of covered lives enrolled with entities operating under demonstration project waivers under sections 1894(h) and 1934(h) of the So- cial Security Act is fewer than 800 (or such lesser number as the Secretary may find statistically suf- ficient to make determinations respecting findings described in the succeeding subparagraphs). ‘‘(B) The population enrolled with such entities is less frail than the population enrolled with other PACE providers. ‘‘(C) Access to or quality of care for individuals enrolled with such entities is lower than such ac- cess or quality for individuals enrolled with other PACE providers. ‘‘(D) The application of such section has resulted in an increase in expenditures under the medicare or medicaid programs above the expenditures that would have been made if such section did not apply.’’ § 1395fff. Prospective payment for home health services (a) In general Notwithstanding section 1395x(v) of this title, the Secretary shall provide, for portions of cost reporting periods occurring on or after October 1, 2000, for payments for home health services in accordance with a prospective payment system established by the Secretary under this section. (b) System of prospective payment for home health services (1) In general The Secretary shall establish under this sub- section a prospective payment system for pay- Page 3984 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff ment for all costs of home health services. Under the system under this subsection all services covered and paid on a reasonable cost basis under the medicare home health benefit as of August 5, 1997, including medical sup- plies, shall be paid for on the basis of a pro- spective payment amount determined under this subsection and applicable to the services involved. In implementing the system, the Secretary may provide for a transition (of not longer than 4 years) during which a portion of such payment is based on agency-specific costs, but only if such transition does not re- sult in aggregate payments under this sub- chapter that exceed the aggregate payments that would be made if such a transition did not occur. (2) Unit of payment (A) In general In defining a prospective payment amount under the system under this subsection, the Secretary shall consider an appropriate unit of service and the number, type, and dura- tion of visits provided within that unit, po- tential changes in the mix of services pro- vided within that unit and their cost, and a general system design that provides for con- tinued access to quality services. (B) 30-day unit of service For purposes of implementing the prospec- tive payment system with respect to home health units of service furnished during a year beginning with 2020, the Secretary shall apply a 30-day unit of service as the unit of service applied under this paragraph. (3) Payment basis (A) Initial basis (i) In general Under such system the Secretary shall provide for computation of a standard pro- spective payment amount (or amounts) as follows: (I) Such amount (or amounts) shall ini- tially be based on the most current au- dited cost report data available to the Secretary and shall be computed in a manner so that the total amounts pay- able under the system for the 12-month period beginning on the date the Sec- retary implements the system shall be equal to the total amount that would have been made if the system had not been in effect and if section 1395x(v)(1)(L)(ix) of this title had not been enacted. (II) For the 12-month period beginning after the period described in subclause (I), such amount (or amounts) shall be equal to the amount (or amounts) deter- mined under subclause (I), updated under subparagraph (B). (III) Subject to clause (iii), for periods beginning after the period described in subclause (II), such amount (or amounts) shall be equal to the amount (or amounts) that would have been deter- mined under subclause (I) that would have been made for fiscal year 2001 if the system had not been in effect and if sec- tion 1395x(v)(1)(L)(ix) of this title had not been enacted but if the reduction in limits described in clause (ii) had been in effect, updated under subparagraph (B). Each such amount shall be standardized in a manner that eliminates the effect of variations in relative case mix and area wage adjustments among different home health agencies in a budget neutral man- ner consistent with the case mix and wage level adjustments provided under para- graph (4)(A). Under the system, the Sec- retary may recognize regional differences or differences based upon whether or not the services or agency are in an urbanized area. (ii) Reduction The reduction described in this clause is a reduction by 15 percent in the cost limits and per beneficiary limits described in sec- tion 1395x(v)(1)(L) of this title, as those limits are in effect on September 30, 2000. (iii) Adjustment for 2014 and subsequent years (I) In general Subject to subclause (II), for 2014 and subsequent years, the amount (or amounts) that would otherwise be appli- cable under clause (i)(III) shall be ad- justed by a percentage determined ap- propriate by the Secretary to reflect such factors as changes in the number of visits in an episode, the mix of services in an episode, the level of intensity of services in an episode, the average cost of providing care per episode, and other factors that the Secretary considers to be relevant. In conducting the analysis under the preceding sentence, the Sec- retary may consider differences between hospital-based and freestanding agen- cies, between for-profit and nonprofit agencies, and between the resource costs of urban and rural agencies. Such adjust- ment shall be made before the update under subparagraph (B) is applied for the year. (II) Transition The Secretary shall provide for a 4- year phase-in (in equal increments) of the adjustment under subclause (I), with such adjustment being fully imple- mented for 2017. During each year of such phase-in, the amount of any adjust- ment under subclause (I) for the year may not exceed 3.5 percent of the amount (or amounts) applicable under clause (i)(III) as of March 23, 2010. (iv) Budget neutrality for 2020 With respect to payments for home health units of service furnished that end during the 12-month period beginning Jan- uary 1, 2020, the Secretary shall calculate a standard prospective payment amount (or amounts) for 30-day units of service (as described in paragraph (2)(B)) for the pro- spective payment system under this sub- Page 3985 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff 1 So in original. The word ‘‘for’’ probably should not appear. 2 So in original. Probably should be followed by a comma. section. Such standard prospective pay- ment amount (or amounts) shall be cal- culated in a manner such that the esti- mated aggregate amount of expenditures under the system during such period with application of paragraph (2)(B) is equal to the estimated aggregate amount of ex- penditures that otherwise would have been made under the system during such period if paragraph (2)(B) had not been enacted. The previous sentence shall be applied be- fore (and not affect the application of) paragraph (3)(B). In calculating such amount (or amounts), the Secretary shall make assumptions about behavior changes that could occur as a result of the imple- mentation of paragraph (2)(B) and the case-mix adjustment factors established under paragraph (4)(B) and shall provide a description of such assumptions in the no- tice and comment rulemaking used to im- plement this clause. (B) Annual update (i) In general The standard prospective payment amount (or amounts) shall be adjusted for fiscal year 2002 and for fiscal year 2003 and for each subsequent year (beginning with 2004) in a prospective manner specified by the Secretary by the home health applica- ble increase percentage (as defined in clause (ii)) applicable to the fiscal year or year involved. (ii) Home health applicable increase per- centage For purposes of this subparagraph, the term ‘‘home health applicable increase percentage’’ means, with respect to— (I) each of fiscal years 2002 and 2003, the home health market basket percent- age increase (as defined in clause (iii)) minus 1.1 percentage points; (II) for 1 the last calendar quarter of 2003 and the first calendar quarter of 2004, the home health market basket per- centage increase; (III) the last 3 calendar quarters of 2004, and all of 2005 2 the home health market basket percentage increase minus 0.8 percentage points; (IV) 2006, 0 percent; and (V) any subsequent year, subject to clauses (v) and (vi), the home health market basket percentage increase. (iii) Home health market basket percentage increase For purposes of this subsection, the term ‘‘home health market basket percentage increase’’ means, with respect to a fiscal year or year, a percentage (estimated by the Secretary before the beginning of the fiscal year or year) determined and applied with respect to the mix of goods and serv- ices included in home health services in the same manner as the market basket percentage increase under section 1395ww(b)(3)(B)(iii) of this title is deter- mined and applied to the mix of goods and services comprising inpatient hospital services for the fiscal year or year. Not- withstanding the previous sentence, the home health market basket percentage in- crease for 2018 shall be 1 percent and for 2020 shall be 1.5 percent. (iv) Adjustment for case mix changes Insofar as the Secretary determines that the adjustments under paragraph (4)(A)(i) for a previous fiscal year or year (or esti- mates that such adjustments for a future fiscal year or year) did (or are likely to) result in a change in aggregate payments under this subsection during the fiscal year or year that are a result of changes in the coding or classification of different units of services that do not reflect real changes in case mix, the Secretary may adjust the standard prospective payment amount (or amounts) under paragraph (3) for subsequent fiscal years or years so as to eliminate the effect of such coding or classification changes. (v) Adjustment if quality data not sub- mitted (I) Adjustment For purposes of clause (ii)(V), for 2007 and each subsequent year, in the case of a home health agency that does not sub- mit data to the Secretary in accordance with subclauses (II) and (IV) with respect to such a year, the home health market basket percentage increase applicable under such clause for such year shall be reduced by 2 percentage points. Such re- duction shall apply only with respect to the year involved, and the Secretary shall not take into account such reduc- tion in computing the prospective pay- ment amount under this section for a subsequent year, and the Medicare Pay- ment Advisory Commission shall carry out the requirements under section 5201(d) of the Deficit Reduction Act of 2005. (II) Submission of quality data Subject to subclause (V), for 2007 and each subsequent year, each home health agency shall submit to the Secretary such data that the Secretary determines are appropriate for the measurement of health care quality. Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this clause. (III) Public availability of data submitted The Secretary shall establish proce- dures for making data submitted under subclause (II) and subclause (IV)(aa) available to the public. Such procedures shall ensure that a home health agency has the opportunity to review the data that is to be made public with respect to the agency prior to such data being made public. Page 3986 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff (IV) Submission of additional data (aa) In general For the year beginning on the speci- fied application date (as defined in sub- section (a)(2)(E) of section 1395lll of this title), as applicable with respect to home health agencies and quality measures under subsection (c)(1) of such section and measures under sub- section (d)(1) of such section, and each subsequent year, in addition to the data described in subclause (II), each home health agency shall submit to the Secretary data on such quality measures and any necessary data spec- ified by the Secretary under such sub- section (d)(1). (bb) Standardized patient assessment data For 2019 and each subsequent year, in addition to such data described in item (aa), each home health agency shall submit to the Secretary standardized patient assessment data required under subsection (b)(1) of section 1395lll of this title. (cc) Submission Data shall be submitted under items (aa) and (bb) in the form and manner, and at the time, specified by the Sec- retary for purposes of this clause. (V) Non-duplication To the extent data submitted under subclause (IV) duplicates other data re- quired to be submitted under subclause (II), the submission of such data under subclause (IV) shall be in lieu of the sub- mission of such data under subclause (II). The previous sentence shall not apply insofar as the Secretary deter- mines it is necessary to avoid a delay in the implementation of section 1395lll of this title, taking into account the dif- ferent specified application dates under subsection (a)(2)(E) of such section. (vi) Adjustments After determining the home health mar- ket basket percentage increase under clause (iii), and after application of clause (v), the Secretary shall reduce such per- centage— (I) for 2015 and each subsequent year (except 2018 and 2020), by the produc- tivity adjustment described in section 1395ww(b)(3)(B)(xi)(II) of this title; and (II) for each of 2011, 2012, and 2013, by 1 percentage point. The application of this clause may result in the home health market basket percent- age increase under clause (iii) being less than 0.0 for a year, and may result in pay- ment rates under the system under this subsection for a year being less than such payment rates for the preceding year. (C) Adjustment for outliers The Secretary shall reduce the standard prospective payment amount (or amounts) under this paragraph applicable to home health services furnished during a period by such proportion as will result in an aggre- gate reduction in payments for the period equal to 5 percent of the total payments es- timated to be made based on the prospective payment system under this subsection for the period. (D) Behavior assumptions and adjustments (i) In general The Secretary shall annually determine the impact of differences between assumed behavior changes (as described in para- graph (3)(A)(iv)) and actual behavior changes on estimated aggregate expendi- tures under this subsection with respect to years beginning with 2020 and ending with 2026. (ii) Permanent adjustments The Secretary shall, at a time and in a manner determined appropriate, through notice and comment rulemaking, provide for one or more permanent increases or de- creases to the standard prospective pay- ment amount (or amounts) for applicable years, on a prospective basis, to offset for such increases or decreases in estimated aggregate expenditures (as determined under clause (i)). (iii) Temporary adjustments for retrospec- tive behavior The Secretary shall, at a time and in a manner determined appropriate, through notice and comment rulemaking, provide for one or more temporary increases or de- creases to the payment amount for a unit of home health services (as determined under paragraph (4)) for applicable years, on a prospective basis, to offset for such increases or decreases in estimated aggre- gate expenditures (as determined under clause (i)). Such a temporary increase or decrease shall apply only with respect to the year for which such temporary in- crease or decrease is made, and the Sec- retary shall not take into account such a temporary increase or decrease in com- puting such amount under this subsection for a subsequent year. (4) Payment computation (A) In general The payment amount for a unit of home health services shall be the applicable stand- ard prospective payment amount adjusted as follows: (i) Case mix adjustment The amount shall be adjusted by an ap- propriate case mix adjustment factor (es- tablished under subparagraph (B)). (ii) Area wage adjustment The portion of such amount that the Secretary estimates to be attributable to wages and wage-related costs shall be ad- justed for geographic differences in such costs by an area wage adjustment factor (established under subparagraph (C)) for Page 3987 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff the area in which the services are fur- nished or such other area as the Secretary may specify. (B) Establishment of case mix adjustment factors (i) In general The Secretary shall establish appro- priate case mix adjustment factors for home health services in a manner that ex- plains a significant amount of the vari- ation in cost among different units of serv- ices. (ii) Treatment of therapy thresholds For 2020 and subsequent years, the Sec- retary shall eliminate the use of therapy thresholds (established by the Secretary) in case mix adjustment factors established under clause (i) for calculating payments under the prospective payment system under this subsection. (C) Establishment of area wage adjustment factors The Secretary shall establish area wage adjustment factors that reflect the relative level of wages and wage-related costs appli- cable to the furnishing of home health serv- ices in a geographic area compared to the national average applicable level. Such fac- tors may be the factors used by the Sec- retary for purposes of section 1395ww(d)(3)(E) of this title. (5) Outliers (A) In general Subject to subparagraph (B), the Secretary may provide for an addition or adjustment to the payment amount otherwise made in the case of outliers because of unusual vari- ations in the type or amount of medically necessary care. The total amount of the ad- ditional payments or payment adjustments made under this paragraph with respect to a fiscal year or year may not exceed 2.5 per- cent of the total payments projected or esti- mated to be made based on the prospective payment system under this subsection in that year. (B) Program specific outlier cap The estimated total amount of additional payments or payment adjustments made under subparagraph (A) with respect to a home health agency for a year (beginning with 2011) may not exceed an amount equal to 10 percent of the estimated total amount of payments made under this section (with- out regard to this paragraph) with respect to the home health agency for the year. (6) Proration of prospective payment amounts If a beneficiary elects to transfer to, or re- ceive services from, another home health agency within the period covered by the pro- spective payment amount, the payment shall be prorated between the home health agencies involved. (c) Requirements for payment information With respect to home health services fur- nished on or after October 1, 1998, no claim for such a service may be paid under this sub- chapter unless— (1) the claim has the unique identifier for the physician 2 the nurse practitioner or clin- ical nurse specialist (as those terms are de- fined in section 1395x(aa)(5) of this title), or the physician assistant (as defined in section 1395x(aa)(5) of this title) who prescribed the services or made the certification described in section 1395f(a)(2) or 1395n(a)(2)(A) of this title; (2) in the case of a service visit described in paragraph (1), (2), (3), or (4) of section 1395x(m) of this title, the claim contains a code (or codes) specified by the Secretary that identi- fies the length of time of the service visit, as measured in 15 minute increments; and (3) in the case of home health services fur- nished on or after January 1, 2019, the claim contains the code for the county (or equiva- lent area) in which the home health service was furnished. (d) Limitation on review There shall be no administrative or judicial review under section 1395ff of this title, 1395oo of this title, or otherwise of— (1) the establishment of a transition period under subsection (b)(1); (2) the definition and application of payment units under subsection (b)(2); (3) the computation of initial standard pro- spective payment amounts under subsection (b)(3)(A) (including the reduction described in clause (ii) of such subsection); (4) the establishment of the adjustment for outliers under subsection (b)(3)(C); (5) the establishment of case mix and area wage adjustments under subsection (b)(4); and (6) the establishment of any adjustments for outliers under subsection (b)(5). (e) Construction related to home health services (1) Telecommunications Nothing in this section shall be construed as preventing a home health agency furnishing a home health unit of service for which payment is made under the prospective payment system established by this section for such units of service from furnishing services via a tele- communication system if such services— (A) do not substitute for in-person home health services ordered as part of a plan of care certified by a physician 2 a nurse practi- tioner or clinical nurse specialist, or a phy- sician assistant pursuant to section 1395f(a)(2)(C) or 1395n(a)(2)(A) of this title; and (B) are not considered a home health visit for purposes of eligibility or payment under this subchapter. (2) Rule of construction regarding requirement for certification Nothing in this section shall be construed as waiving the requirement for a certification under section 1395f(a)(2)(C) or 1395n(a)(2)(A) of this title for the payment for home health services, whether or not furnished via a tele- communications system. (Aug. 14, 1935, ch. 531, title XVIII, § 1895, as added Pub. L. 105–33, title IV, § 4603(a), Aug. 5, 1997, 111 Page 3988 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff Stat. 467; amended Pub. L. 105–277, div. J, title V, § 5101(c)(1), (d)(2), Oct. 21, 1998, 112 Stat. 2681–914; Pub. L. 106–113, div. B, § 1000(a)(6) [title III, §§ 302(b), 303(b), 306, 321(k)(19)], Nov. 29, 1999, 113 Stat. 1536, 1501A–359, 1501A–361, 1501A–362, 1501A–368; Pub. L. 106–554, § 1(a)(6) [title V, §§ 501(a), (c)(1), 504], Dec. 21, 2000, 114 Stat. 2763, 2763A–529, 2763A–531; Pub. L. 108–173, title VII, § 701, Dec. 8, 2003, 117 Stat. 2334; Pub. L. 109–171, title V, § 5201(a), (c), Feb. 8, 2006, 120 Stat. 46; Pub. L. 111–148, title III, §§ 3131(a)(1), (b), 3401(e), title X, §§ 10315(a), 10319(d), Mar. 23, 2010, 124 Stat. 427, 428, 483, 944, 949; Pub. L. 113–185, § 2(c)(1), Oct. 6, 2014, 128 Stat. 1962; Pub. L. 114–10, title IV, § 411(c), Apr. 16, 2015, 129 Stat. 161; Pub. L. 115–123, div. E, title II, § 50208(a)(2), title X, § 51001(a), title XII, § 53110, Feb. 9, 2018, 132 Stat. 189, 289, 304; Pub. L. 116–136, div. A, title III, § 3708(d), Mar. 27, 2020, 134 Stat. 421.) Editorial Notes REFERENCES IN TEXT Section 5201(d) of the Deficit Reduction Act of 2005, referred to in subsec. (b)(3)(B)(v)(I), is section 5201(d) of title V of Pub. L. 109–171, Feb. 8, 2006, 120 Stat. 47, which is not classified to the Code. AMENDMENTS 2020—Subsec. (c)(1). Pub. L. 116–136, § 3708(d)(1), struck out ‘‘(provided under section 1395u(r) of this title)’’ after ‘‘unique identifier’’ and inserted ‘‘the nurse prac- titioner or clinical nurse specialist (as those terms are defined in section 1395x(aa)(5) of this title), or the phy- sician assistant (as defined in section 1395x(aa)(5) of this title)’’ after ‘‘physician’’. Subsec. (e)(1)(A). Pub. L. 116–136, § 3708(d)(2)(A), in- serted ‘‘a nurse practitioner or clinical nurse specialist, or a physician assistant’’ after ‘‘physician’’. Subsec. (e)(2). Pub. L. 116–136, § 3708(d)(2)(B), sub- stituted ‘‘Rule of construction regarding requirement for certification’’ for ‘‘Physician certification’’ in head- ing and struck out ‘‘physician’’ before ‘‘certification’’ in text. 2018—Subsec. (b)(2). Pub. L. 115–123, § 51001(a)(1), in- serted subpar. (A) designation and heading before ‘‘In defining’’ and added subpar. (B). Subsec. (b)(3)(A)(iv). Pub. L. 115–123, § 51001(a)(2)(A), added cl. (iv). Subsec. (b)(3)(B)(iii). Pub. L. 115–123, § 53110(1), in- serted ‘‘and for 2020 shall be 1.5 percent’’ after ‘‘1 per- cent’’. Subsec. (b)(3)(B)(vi)(I). Pub. L. 115–123, § 53110(2), in- serted ‘‘and 2020’’ after ‘‘except 2018’’. Subsec. (b)(3)(D). Pub. L. 115–123, § 51001(a)(2)(B), added subpar. (D). Subsec. (b)(4)(B). Pub. L. 115–123, § 51001(a)(3), inserted cl. (i) designation and heading before ‘‘The Secretary’’ and added cl. (ii). Subsec. (c)(3). Pub. L. 115–123, § 50208(a)(2), added par. (3). 2015—Subsec. (b)(3)(B)(iii). Pub. L. 114–10, § 411(c)(1), inserted at end ‘‘Notwithstanding the previous sen- tence, the home health market basket percentage in- crease for 2018 shall be 1 percent.’’ Subsec. (b)(3)(B)(vi)(I). Pub. L. 114–10, § 411(c)(2), in- serted ‘‘(except 2018)’’ after ‘‘each subsequent year’’. 2014—Subsec. (b)(3)(B)(v)(I). Pub. L. 113–185, § 2(c)(1)(A), substituted ‘‘subclauses (II) and (IV)’’ for ‘‘subclause (II)’’. Subsec. (b)(3)(B)(v)(II). Pub. L. 113–185, § 2(c)(1)(B), substituted ‘‘Subject to subclause (V), for 2007’’ for ‘‘For 2007’’. Subsec. (b)(3)(B)(v)(III). Pub. L. 113–185, § 2(c)(1)(C), in- serted ‘‘and subclause (IV)(aa)’’ after ‘‘subclause (II)’’. Subsec. (b)(3)(B)(v)(IV), (V). Pub. L. 113–185, § 2(c)(1)(D), added subcls. (IV) and (V). 2010—Subsec. (b)(3)(A)(i)(III). Pub. L. 111–148, § 3131(a)(1)(A), substituted ‘‘Subject to clause (iii), for periods’’ for ‘‘For periods’’. Subsec. (b)(3)(A)(iii). Pub. L. 111–148, § 10315(a), sub- stituted ‘‘2014’’ for ‘‘2013’’ in heading and in subcl. (I), and ‘‘2017’’ for ‘‘2016’’ in subcl. (II). Pub. L. 111–148, § 3131(a)(1)(B), added cl. (iii). Subsec. (b)(3)(B)(ii)(V). Pub. L. 111–148, § 3401(e)(1), substituted ‘‘clauses (v) and (vi)’’ for ‘‘clause (v)’’. Subsec. (b)(3)(B)(vi). Pub. L. 111–148, § 3401(e)(2), added cl. (vi). Subsec. (b)(3)(B)(vi)(II). Pub. L. 111–148, § 10319(d), sub- stituted ‘‘, 2012, and 2013’’ for ‘‘and 2012’’. Subsec. (b)(3)(C). Pub. L. 111–148, § 3131(b)(1), sub- stituted ‘‘5 percent of the total payments estimated to be made based on the prospective payment system under this subsection for the period.’’ for ‘‘the aggre- gate increase in payments resulting from the applica- tion of paragraph (5) (relating to outliers).’’ Subsec. (b)(5). Pub. L. 111–148, § 3131(b)(2), designated existing provisions as subpar. (A), inserted heading, substituted ‘‘Subject to subparagraph (B), the Sec- retary’’ for ‘‘The Secretary’’ and ‘‘2.5 percent’’ for ‘‘5 percent’’, and added subpar. (B). 2006—Subsec. (b)(3)(B)(ii)(III). Pub. L. 109–171, § 5201(a)(1), substituted ‘‘all of 2005’’ for ‘‘each of 2005 and 2006’’. Subsec. (b)(3)(B)(ii)(IV). Pub. L. 109–171, § 5201(a)(2), (4), added subcl. (IV). Former subcl. (IV) redesignated (V). Pub. L. 109–171, § 5201(a)(3), struck out ‘‘2007 and’’ be- fore ‘‘any subsequent year’’. Subsec. (b)(3)(B)(ii)(V). Pub. L. 109–171, § 5201(a)(3), (c)(1), redesignated subcl. (IV) as (V) and inserted ‘‘sub- ject to clause (v),’’ after ‘‘subsequent year,’’. Subsec. (b)(3)(B)(v). Pub. L. 109–171, § 5201(c)(2), added cl. (v). 2003—Subsec. (b)(3)(B)(i). Pub. L. 108–173, § 701(a)(1), substituted ‘‘fiscal year 2002 and for fiscal year 2003 and for each subsequent year (beginning with 2004)’’ for ‘‘each fiscal year (beginning with fiscal year 2002)’’ and inserted ‘‘or year’’ after ‘‘the fiscal year’’. Subsec. (b)(3)(B)(ii)(I). Pub. L. 108–173, § 701(a)(2)(A), struck out ‘‘or’’ at end. Subsec. (b)(3)(B)(ii)(II). Pub. L. 108–173, § 701(b)(1), struck out ‘‘or’’ at end. Pub. L. 108–173, § 701(a)(2)(D), added subcl. (II). Former subcl. (II) redesignated (III). Subsec. (b)(3)(B)(ii)(III). Pub. L. 108–173, § 701(b)(4), added subcl. (III). Former subcl. (III) redesignated (IV). Pub. L. 108–173, § 701(a)(2)(B), (C), redesignated subcl. (II) as (III) and substituted ‘‘2004 and any subsequent year’’ for ‘‘any subsequent fiscal year’’. Subsec. (b)(3)(B)(ii)(IV). Pub. L. 108–173, § 701(b)(2), (3), redesignated subcl. (III) as (IV) and substituted ‘‘2007’’ for ‘‘2004’’. Subsec. (b)(3)(B)(iii). Pub. L. 108–173, § 701(a)(3), in- serted ‘‘or year’’ after ‘‘fiscal year’’ wherever appear- ing. Subsec. (b)(3)(B)(iv). Pub. L. 108–173, § 701(a)(4), in- serted ‘‘or year’’ after ‘‘fiscal year’’ wherever appearing and ‘‘or years’’ after ‘‘fiscal years’’. Subsec. (b)(5). Pub. L. 108–173, § 701(a)(5), inserted ‘‘or year’’ after ‘‘fiscal year’’. 2000—Subsec. (b)(3)(A)(i)(II). Pub. L. 106–554, § 1(a)(6) [title V, § 501(a)(3)], added subcl. (II). Former subcl. (II) redesignated (III). Subsec. (b)(3)(A)(i)(III). Pub. L. 106–554, § 1(a)(6) [title V, § 501(a)(1), (2)], redesignated subcl. (II) as (III) and substituted ‘‘described in subclause (II)’’ for ‘‘described in subclause (I)’’. Subsec. (b)(3)(B)(iv). Pub. L. 106–554, § 1(a)(6) [title V, § 501(c)(1)], added cl. (iv). Subsec. (e). Pub. L. 106–554, § 1(a)(6) [title V, § 504], added subsec. (e). 1999—Subsec. (b)(1). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(19)], made technical amendment to ref- erence in original act which appears in text as ref- erence to August 5, 1997. Subsec. (b)(3)(A)(i). Pub. L. 106–113, § 1000(a)(6) [title III, § 302(b)], amended heading and text of cl. (i) gen- Page 3989 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff erally. Prior to amendment, text read as follows: ‘‘Under such system the Secretary shall provide for computation of a standard prospective payment amount (or amounts). Such amount (or amounts) shall initially be based on the most current audited cost re- port data available to the Secretary and shall be com- puted in a manner so that the total amounts payable under the system for fiscal year 2001 shall be equal to the total amount that would have been made if the sys- tem had not been in effect but if the reduction in limits described in clause (ii) had been in effect. Such amount shall be standardized in a manner that eliminates the effect of variations in relative case mix and wage levels among different home health agencies in a budget neu- tral manner consistent with the case mix and wage level adjustments provided under paragraph (4)(A). Under the system, the Secretary may recognize re- gional differences or differences based upon whether or not the services or agency are in an urbanized area.’’ Subsec. (b)(3)(A)(i)(I). Pub. L. 106–113, § 1000(a)(6) [title III, § 303(b)(1)], which directed that the second sentence of cl. (i) be amended in subcl. (I) by the insertion of ‘‘and if section 1395x(v)(1)(L)(ix) of this title had not been enacted’’ before semicolon, was executed by mak- ing the insertion before the period at end of subcl. (I) to reflect the probable intent of Congress. Subsec. (b)(3)(A)(i)(II). Pub. L. 106–113, § 1000(a)(6) [title III, § 303(b)(2)], inserted ‘‘and if section 1395x(v)(1)(L)(ix) of this title had not been enacted’’ after ‘‘if the system had not been in effect’’. Subsec. (b)(3)(B)(ii)(I). Pub. L. 106–113, § 1000(a)(6) [title III, § 306], substituted ‘‘each of fiscal years 2002 and 2003’’ for ‘‘fiscal year 2002 or 2003’’. 1998—Subsec. (a). Pub. L. 105–277, § 5101(c)(1)(A), sub- stituted ‘‘for portions of cost reporting periods occur- ring on or after October 1, 2000’’ for ‘‘for cost reporting periods beginning on or after October 1, 1999’’. Subsec. (b)(3)(A)(i). Pub. L. 105–277, § 5101(c)(1)(B)(i), substituted ‘‘fiscal year 2001’’ for ‘‘fiscal year 2000’’. Subsec. (b)(3)(A)(ii). Pub. L. 105–277, § 5101(c)(1)(B)(ii), substituted ‘‘September 30, 2000’’ for ‘‘September 30, 1999’’. Subsec. (b)(3)(B)(i). Pub. L. 105–277, § 5101(d)(2)(A), sub- stituted ‘‘home health applicable increase percentage (as defined in clause (ii))’’ for ‘‘home health market basket percentage increase’’. Pub. L. 105–277, § 5101(c)(1)(B)(iii), substituted ‘‘fiscal year 2002’’ for ‘‘fiscal year 2001’’. Subsec. (b)(3)(B)(ii), (iii). Pub. L. 105–277, § 5101(d)(2)(B), (C), added cl. (ii) and redesignated former cl. (ii) as (iii). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Secretary of Health and Human Services to prescribe regulations to apply the amendments made by Pub. L. 116–136 to items and services furnished, which shall be- come effective no later than 6 months after Mar. 27, 2020, see section 3708(f) of Pub. L. 116–136, set out as a note under section 1395f of this title. EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–554, § 1(a)(6) [title V, § 501(c)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–529, provided that: ‘‘The amendment made by paragraph (1) [amending this sec- tion] shall apply to episodes concluding on or after Oc- tober 1, 2001.’’ EFFECTIVE DATE OF 1999 AMENDMENT Amendment by section 1000(a)(6) [title III, § 303(b)] of Pub. L.106–113 applicable to services furnished by home health agencies for cost reporting periods beginning on or after Oct. 1, 1999, see section 1000(a)(6) [title III, § 303(c)] of Pub. L. 106–113, set out as a note under sec- tion 1395x of this title. Amendment by section 1000(a)(6) [title III, § 321(k)(19)] of Pub. L. 106–113 effective as if included in the enact- ment of the Balanced Budget Act of 1997, Pub. L. 105–33, except as otherwise provided, see section 1000(a)(6) [title III, § 321(m)] of Pub. L. 106–113, set out as a note under section 1395d of this title. EFFECTIVE DATE Pub. L. 105–33, title IV, § 4603(d), Aug. 5, 1997, 111 Stat. 471, as amended by Pub. L. 105–277, div. J, title V, § 5101(c)(2), Oct. 21, 1998, 112 Stat. 2681–914, provided that: ‘‘Except as otherwise provided, the amendments made by this section [enacting this section and amend- ing sections 1395f, 1395g, 1395k, 1395l, 1395u, and 1395y of this title] shall apply to portions of cost reporting peri- ods occurring on or after October 1, 2000.’’ INCREASING TRANSPARENCY FOR HOME HEALTH PAYMENTS UNDER THE MEDICARE PROGRAM Pub. L. 117–328, div. FF, title IV, § 4142, Dec. 29, 2022, 136 Stat. 5929, provided that: ‘‘(a) TRANSPARENCY.—In notice and comment rule- making used to implement section 1895(b)(3)(D) of the Social Security Act (42 U.S.C. 1395fff(b)(3)(D)[)], the Secretary of Health and Human Services (referred to in this section as the ‘Secretary’) shall, on the date of the notice of proposed rulemaking, make available through the internet website of the Centers for Medicare & Med- icaid Services the following: ‘‘(1) Electronic data files showing the Centers for Medicare & Medicaid Services simulation of 60-day episodes under the home health prospective payment system in effect prior to the Patient Driven Groupings Model using data from 30-day periods paid under such Model, if such data are used in deter- mining payment adjustments under clauses (ii) or (iii) of such section 1895(b)(3)(D). ‘‘(2) To the extent practicable, a description of ac- tual behavior changes, as described in clause (i) of such section 1895(b)(3)(D), including behavior changes as a result of the implementation of sections 1895(b)(2)(B) and 1895(b)(4)(B) of the Social Security Act (42 U.S.C. 1395fff(b)(2)(B) and 1395(b)(4)(B) [prob- ably should be ‘‘1395fff(b)(4)(B)’’]) that occurred in calendar years 2020 through 2026. ‘‘(b) ENGAGEMENT WITH STAKEHOLDERS.— ‘‘(1) IN GENERAL.—Not later than 90 days after the date of enactment of this section [Dec. 29, 2022], the Secretary shall use an open door forum, a town hall meeting, a web-based forum, or other appropriate mechanism to receive input from home health stake- holders and interested parties on Medicare home health payment rate development, including the items described in paragraphs (1) and (2) of subsection (a) with respect to the home health prospective pay- ment system rate for calendar year 2023. ‘‘(2) REQUIREMENT.—At least 30 days before the forum, meeting, or other mechanism referred to in paragraph (1), the Secretary shall make available through the internet website of the Centers for Medi- care & Medicaid Services the items described in para- graphs (1) and (2) of subsection (a) with respect to the home health prospective payment system rate for calendar year 2023 as finalized in the final rule enti- tled ‘Medicare Program; Calendar Year [(CY)] 2023 Home Health Prospective Payment System Rate Up- date; Home Health Quality Reporting Program Re- quirements; Home Health Value-Based Purchasing Expanded Model Requirements; and Home Infusion Therapy Services Requirements’ published in the Federal Register on November 4, 2022 (87 Fed. Reg. 66790). ‘‘(c) CONSTRUCTION.—Nothing in this section shall be construed to require any change in the methodology used by the Secretary to implement such section 1895(b)(3)(D), to restrict the Secretary’s discretion in establishing the methodology to implement such sec- tion, or to suggest that the Secretary’s promulgation of the methodology implementing such Calendar Year 2023 home health final rule was inadequate under Chap- ter 5 of title 5, United States Code (commonly known as the ‘Administrative Procedures Act’ [probably Page 3990 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff should be ‘‘Administrative Procedure Act’’]) or any other provision of law.’’ STUDY AND REPORT ON THE DEVELOPMENT OF HOME HEALTH PAYMENT REVISIONS IN ORDER TO ENSURE ACCESS TO CARE AND PAYMENT FOR SEVERITY OF ILLNESS Pub. L. 111–148, title III, § 3131(d), title X, § 10315(b), Mar. 23, 2010, 124 Stat. 429, 944, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services (in this section referred to as the ‘Sec- retary’) shall conduct a study on home health agency costs involved with providing ongoing access to care to low-income Medicare beneficiaries or beneficiaries in medically underserved areas, and in treating bene- ficiaries with varying levels of severity of illness. In conducting the study, the Secretary may analyze items such as the following: ‘‘(A) Methods to potentially revise the home health prospective payment system under section 1895 of the Social Security Act (42 U.S.C. 1395fff) to account for costs related to patient severity of illness or to im- proving beneficiary access to care, such as— ‘‘(i) payment adjustments for services that may involve additional or fewer resources; ‘‘(ii) changes to reflect resources involved with providing home health services to low-income Medicare beneficiaries or Medicare beneficiaries re- siding in medically underserved areas; ‘‘(iii) ways outlier payments might be revised to reflect costs of treating Medicare beneficiaries with high levels of severity of illness; and ‘‘(iv) other issues determined appropriate by the Secretary. ‘‘(B) Operational issues involved with potential im- plementation of potential revisions to the home health payment system, including impacts for both home health agencies and administrative and sys- tems issues for the Centers for Medicare & Medicaid Services, and any possible payment vulnerabilities associated with implementing potential revisions. ‘‘(C) Whether additional research might be needed. ‘‘(D) Other items determined appropriate by the Secretary. ‘‘(2) CONSIDERATIONS.—In conducting the study under paragraph (1), the Secretary may consider whether pa- tient severity of illness and access to care could be measured by factors, such as— ‘‘(A) population density and relative patient access to care; ‘‘(B) variations in service costs for providing care to individuals who are dually eligible under the Medi- care and Medicaid programs; ‘‘(C) the presence of severe or chronic diseases, which might be measured by multiple, discontinuous home health episodes; ‘‘(D) poverty status, such as evidenced by the re- ceipt of Supplemental Security Income under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.]; and ‘‘(E) other factors determined appropriate by the Secretary. ‘‘(3) REPORT.—Not later than March 1, 2014, the Sec- retary shall submit to Congress a report on the study conducted under paragraph (1), together with rec- ommendations for such legislation and administrative action as the Secretary determines appropriate. ‘‘(4) CONSULTATIONS.—In conducting the study under paragraph (1), the Secretary shall consult with appro- priate stakeholders, such as groups representing home health agencies and groups representing Medicare bene- ficiaries. ‘‘(5) MEDICARE DEMONSTRATION PROJECT BASED ON THE RESULTS OF THE STUDY.— ‘‘(A) IN GENERAL.—Subject to subparagraph (D), taking into account the results of the study con- ducted under paragraph (1), the Secretary may, as de- termined appropriate, provide for a demonstration project to test whether making payment adjustments for home health services under the Medicare program would substantially improve access to care for pa- tients with high severity levels of illness or for low- income or underserved Medicare beneficiaries. ‘‘(B) WAIVING BUDGET NEUTRALITY.—The Secretary shall not reduce the standard prospective payment amount (or amounts) under section 1895 of the Social Security Act (42 U.S.C. 1395fff) applicable to home health services furnished during a period to offset any increase in payments during such period result- ing from the application of the payment adjustments under subparagraph (A). ‘‘(C) NO EFFECT ON SUBSEQUENT PERIODS.—A pay- ment adjustment resulting from the application of subparagraph (A) for a period— ‘‘(i) shall not apply to payments for home health services under title XVIII [42 U.S.C. 1395 et seq.] after such period; and ‘‘(ii) shall not be taken into account in calcu- lating the payment amounts applicable for such services after such period. ‘‘(D) DURATION.—If the Secretary determines it ap- propriate to conduct the demonstration project under this subsection, the Secretary shall conduct the project for a four year period beginning not later than January 1, 2015. ‘‘(E) FUNDING.—The Secretary shall provide for the transfer from the Federal Hospital Insurance Trust Fund under section 1817 of the Social Security Act (42 U.S.C. 1395i) and the Federal Supplementary Medical Insurance Trust Fund established under section 1841 of such Act (42 U.S.C. 1395t), in such proportion as the Secretary determines appropriate, of $500,000,000 for the period of fiscal years 2015 through 2018. Such funds shall be made available for the study described in paragraph (1) and the design, implementation and evaluation of the demonstration described in this paragraph. Amounts available under this subpara- graph shall be available until expended. ‘‘(F) EVALUATION AND REPORT.—If the Secretary de- termines it appropriate to conduct the demonstration project under this subsection, the Secretary shall— ‘‘(i) provide for an evaluation of the project; and ‘‘(ii) submit to Congress, by a date specified by the Secretary, a report on the project. ‘‘(G) ADMINISTRATION.—Chapter 35 of title 44, United States Code, shall not apply with respect to this sub- section.’’ TEMPORARY INCREASE FOR HOME HEALTH SERVICES FURNISHED IN A RURAL AREA Pub. L. 108–173, title IV, § 421, Dec. 8, 2003, 117 Stat. 2283, as amended by Pub. L. 109–171, title V, § 5201(b), Feb. 8, 2006, 120 Stat. 46; Pub. L. 111–148, title III, § 3131(c), Mar. 23, 2010, 124 Stat. 428; Pub. L. 114–10, title II, § 210, Apr. 16, 2015, 129 Stat. 151; Pub. L. 115–123, div. E, title II, § 50208(a)(1), Feb. 9, 2018, 132 Stat. 188; Pub. L. 117–328, div. FF, title IV, § 4137, Dec. 29, 2022, 136 Stat. 5925, provided that: ‘‘(a) IN GENERAL.—With respect to episodes and visits ending on or after April 1, 2004, and before April 1, 2005, episodes and visits beginning on or after January 1, 2006, and before January 1, 2007, and episodes and visits ending on or after April 1, 2010, and before January 1, 2019, in the case of home health services furnished in a rural area (as defined in section 1886(d)(2)(D) of the So- cial Security Act (42 U.S.C. 1395ww(d)(2)(D))), the Sec- retary [of Health and Human Services] shall increase the payment amount otherwise made under section 1895 of such Act (42 U.S.C. 1395fff) for such services by 5 per- cent (or, in the case of episodes and visits ending on or after April 1, 2010, and before January 1, 2019, 3 per- cent). ‘‘(b) SUBSEQUENT TEMPORARY INCREASE.— ‘‘(1) IN GENERAL.—The Secretary shall increase the payment amount otherwise made under such section 1895 for home health services furnished in a county (or equivalent area) in a rural area (as defined in such section 1886(d)(2)(D)) that, as determined by the Sec- retary— ‘‘(A) is in the highest quartile of all counties (or equivalent areas) based on the number of Medicare Page 3991 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff home health episodes furnished per 100 individuals who are entitled to, or enrolled for, benefits under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] or enrolled for benefits under part B of such title [42 U.S.C. 1395j et seq.] (but not enrolled in a plan under part C of such title [42 U.S.C. 1395w–21 et seq.])— ‘‘(i) in the case of episodes and visits ending during 2019, by 1.5 percent; and ‘‘(ii) in the case of episodes and visits ending during 2020, by 0.5 percent; ‘‘(B) has a population density of 6 individuals or fewer per square mile of land area and is not de- scribed in subparagraph (A)— ‘‘(i) in the case of episodes and visits ending during 2019, by 4 percent; ‘‘(ii) in the case of episodes and visits ending during 2020, by 3 percent; ‘‘(iii) in the case of episodes and visits ending during 2021, by 2 percent; ‘‘(iv) in the case of episodes and visits ending during 2022, by 1 percent; and ‘‘(v) in the case of episodes and visits ending during 2023, by 1 percent; and ‘‘(C) is not described in either subparagraph (A) or (B)— ‘‘(i) in the case of episodes and visits ending during 2019, by 3 percent; ‘‘(ii) in the case of episodes and visits ending during 2020, by 2 percent; and ‘‘(iii) in the case of episodes and visits ending during 2021, by 1 percent. ‘‘(2) RULES FOR DETERMINATIONS.— ‘‘(A) NO SWITCHING.—For purposes of this sub- section, the determination by the Secretary as to which subparagraph of paragraph (1) applies to a county (or equivalent area) shall be made a single time and shall apply for the duration of the period to which this subsection applies. ‘‘(B) UTILIZATION.—In determining which counties (or equivalent areas) are in the highest quartile under paragraph (1)(A), the following rules shall apply: ‘‘(i) The Secretary shall use data from 2015. ‘‘(ii) The Secretary shall exclude data from the territories (and the territories shall not be de- scribed in such paragraph). ‘‘(iii) The Secretary may exclude data from counties (or equivalent areas) in rural areas with a low volume of home health episodes (and if data is so excluded with respect to a county (or equiva- lent area), such county (or equivalent area) shall not be described in such paragraph). ‘‘(C) POPULATION DENSITY.—In determining popu- lation density under paragraph (1)(B), the Secretary shall use data from the 2010 decennial Census. ‘‘(3) LIMITATIONS ON REVIEW.—There shall be no ad- ministrative or judicial review under section 1869 [probably means section 1869 of the Social Security Act, 42 U.S.C. 1395ff], section 1878 [probably means section 1878 of the Social Security Act, 42 U.S.C.1395oo], or otherwise of determinations under paragraph (1). ‘‘(c) WAIVING BUDGET NEUTRALITY.—The Secretary shall not reduce the standard prospective payment amount (or amounts) under section 1895 of the Social Security Act (42 U.S.C. 1395fff) applicable to home health services furnished during a period to offset the increase in payments resulting from the application of subsection (a) or (b). ‘‘(d) NO EFFECT ON SUBSEQUENT PERIODS.—The pay- ment increase provided under subsection (a) or (b) for a period under such subsection— ‘‘(1) shall not apply to episodes and visits ending after such period; and ‘‘(2) shall not be taken into account in calculating the payment amounts applicable for episodes and vis- its occurring after such period.’’ DEMONSTRATION PROJECT FOR MEDICAL ADULT DAY- CARE SERVICES Pub. L. 108–173, title VII, § 703, Dec. 8, 2003, 117 Stat. 2336, provided that: ‘‘(a) ESTABLISHMENT.—Subject to the succeeding pro- visions of this section, the Secretary [of Health and Human Services] shall establish a demonstration project (in this section referred to as the ‘demonstra- tion project’) under which the Secretary shall, as part of a plan of an episode of care for home health services established for a medicare beneficiary, permit a home health agency, directly or under arrangements with a medical adult day-care facility, to provide medical adult day-care services as a substitute for a portion of home health services that would otherwise be provided in the beneficiary’s home. ‘‘(b) PAYMENT.— ‘‘(1) IN GENERAL.—Subject to paragraph (2), the amount of payment for an episode of care for home health services, a portion of which consists of sub- stitute medical adult day-care services, under the demonstration project shall be made at a rate equal to 95 percent of the amount that would otherwise apply for such home health services under section 1895 of the Social Security Act (42 U.S.C. 1395fff). In no case may a home health agency, or a medical adult day-care facility under arrangements with a home health agency, separately charge a beneficiary for medical adult day-care services furnished under the plan of care. ‘‘(2) ADJUSTMENT IN CASE OF OVERUTILIZATION OF SUBSTITUTE ADULT DAY-CARE SERVICES TO ENSURE BUDGET NEUTRALITY.—The Secretary shall monitor the expenditures under the demonstration project and under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] for home health services. If the Secretary estimates that the total expenditures under the demonstration project and under such title XVIII for home health services for a period deter- mined by the Secretary exceed expenditures that would have been made under such title XVIII for home health services for such period if the dem- onstration project had not been conducted, the Sec- retary shall adjust the rate of payment to medical adult day-care facilities under paragraph (1) in order to eliminate such excess. ‘‘(c) DEMONSTRATION PROJECT SITES.—The demonstra- tion project established under this section shall be con- ducted in not more than 5 sites in States selected by the Secretary that license or certify providers of serv- ices that furnish medical adult day-care services. ‘‘(d) DURATION.—The Secretary shall conduct the demonstration project for a period of 3 years. ‘‘(e) VOLUNTARY PARTICIPATION.—Participation of medicare beneficiaries in the demonstration project shall be voluntary. The total number of such bene- ficiaries that may participate in the project at any given time may not exceed 15,000. ‘‘(f) PREFERENCE IN SELECTING AGENCIES.—In select- ing home health agencies to participate under the dem- onstration project, the Secretary shall give preference to those agencies that are currently licensed or cer- tified through common ownership and control to fur- nish medical adult day-care services. ‘‘(g) WAIVER AUTHORITY.—The Secretary may waive such requirements of title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] as may be necessary for the purposes of carrying out the demonstration project, other than waiving the requirement that an individual be homebound in order to be eligible for benefits for home health services. ‘‘(h) EVALUATION AND REPORT.—The Secretary shall conduct an evaluation of the clinical and cost-effective- ness of the demonstration project. Not later than 6 months after the completion of the project, the Sec- retary shall submit to Congress a report on the evalua- tion, and shall include in the report the following: ‘‘(1) An analysis of the patient outcomes and costs of furnishing care to the medicare beneficiaries par- ticipating in the project as compared to such out- comes and costs to beneficiaries receiving only home health services for the same health conditions. ‘‘(2) Such recommendations regarding the exten- sion, expansion, or termination of the project as the Secretary determines appropriate. Page 3992 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff ‘‘(i) DEFINITIONS.—In this section: ‘‘(1) HOME HEALTH AGENCY.—The term ‘home health agency’ has the meaning given such term in section 1861(o) of the Social Security Act (42 U.S.C. 1395x(o)). ‘‘(2) MEDICAL ADULT DAY-CARE FACILITY.—The term ‘medical adult day-care facility’ means a facility that— ‘‘(A) has been licensed or certified by a State to furnish medical adult day-care services in the State for a continuous 2-year period; ‘‘(B) is engaged in providing skilled nursing serv- ices and other therapeutic services directly or under arrangement with a home health agency; ‘‘(C) is licensed and certified by the State in which it operates or meets such standards estab- lished by the Secretary to assure quality of care and such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the facil- ity; and ‘‘(D) provides medical adult day-care services. ‘‘(3) MEDICAL ADULT DAY-CARE SERVICES.—The term ‘medical adult day-care services’ means— ‘‘(A) home health service items and services de- scribed in paragraphs (1) through (7) of section 1861(m) [probably means section 1861(m) of the So- cial Security Act, 42 U.S.C. 1395x(m)] furnished in a medical adult day-care facility; ‘‘(B) a program of supervised activities furnished in a group setting in the facility that— ‘‘(i) meet such criteria as the Secretary deter- mines appropriate; and ‘‘(ii) is designed to promote physical and mental health of the individuals; and ‘‘(C) such other services as the Secretary may specify. ‘‘(4) MEDICARE BENEFICIARY.—The term ‘medicare beneficiary’ means an individual entitled to benefits under part A of this title [probably means part A of title XVIII of the Social Security Act, 42 U.S.C. 1395c et seq.], enrolled under part B of this title [probably means part B of title XVIII of the Social Security Act, 42 U.S.C. 1395j et seq.], or both.’’ TEMPORARY SUSPENSION OF OASIS REQUIREMENT FOR COLLECTION OF DATA ON NON-MEDICARE AND NON- MEDICAID PATIENTS Pub. L. 108–173, title VII, § 704, Dec. 8, 2003, 117 Stat. 2338, provided that: ‘‘(a) IN GENERAL.—During the period described in sub- section (b), the Secretary [of Health and Human Serv- ices] may not require, under section 4602(e) of the Bal- anced Budget Act of 1997 (Public Law 105–33; 111 Stat. 467) [set out as a note under this section] or otherwise under OASIS, a home health agency to gather or sub- mit information that relates to an individual who is not eligible for benefits under either title XVIII or title XIX of the Social Security Act [42 U.S.C. 1395 et seq., 1396 et seq.] (such information in this section referred to as ‘non-medicare/medicaid OASIS information’). ‘‘(b) PERIOD OF SUSPENSION.—The period described in this subsection— ‘‘(1) begins on the date of the enactment of this Act [Dec. 8, 2003]; and ‘‘(2) ends on the last day of the second month begin- ning after the date as of which the Secretary has pub- lished final regulations regarding the collection and use by the Centers for Medicare & Medicaid Services of non-medicare/medicaid OASIS information fol- lowing the submission of the report required under subsection (c). ‘‘(c) REPORT.— ‘‘(1) STUDY.—The Secretary shall conduct a study on how non-medicare/medicaid OASIS information is and can be used by large home health agencies. Such study shall examine— ‘‘(A) whether there are unique benefits from the analysis of such information that cannot be derived from other information available to, or collected by, such agencies; and ‘‘(B) the value of collecting such information by small home health agencies compared to the ad- ministrative burden related to such collection. In conducting the study the Secretary shall obtain recommendations from quality assessment experts in the use of such information and the necessity of small, as well as large, home health agencies col- lecting such information. ‘‘(2) REPORT.—The Secretary shall submit to Con- gress a report on the study conducted under para- graph (1) by not later than 18 months after the date of the enactment of this Act [Dec. 8, 2003]. ‘‘(d) CONSTRUCTION.—Nothing in this section shall be construed as preventing home health agencies from col- lecting non-medicare/medicaid OASIS information for their own use.’’ MEDPAC STUDY ON MEDICARE MARGINS OF HOME HEALTH AGENCIES Pub. L. 108–173, title VII, § 705, Dec. 8, 2003, 117 Stat. 2339, provided that: ‘‘(a) STUDY.—The Medicare Payment Advisory Com- mission shall conduct a study of payment margins of home health agencies under the home health prospec- tive payment system under section 1895 of the Social Security Act (42 U.S.C. 1395fff). Such study shall exam- ine whether systematic differences in payment margins are related to differences in case mix (as measured by home health resource groups (HHRGs)) among such agencies. The study shall use the partial or full-year cost reports filed by home health agencies. ‘‘(b) REPORT.—Not later than 2 years after the date of the enactment of this Act [Dec. 8, 2003], the Commis- sion shall submit to Congress a report on the study under subsection (a).’’ SPECIAL RULE FOR PAYMENT FOR FISCAL YEAR 2001 BASED ON ADJUSTED PROSPECTIVE PAYMENT AMOUNTS Pub. L. 106–554, § 1(a)(6) [title V, § 502(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–530, provided that: ‘‘(1) IN GENERAL.—Notwithstanding the amendments made by subsection (a) [amending section 1395x of this title], for purposes of making payments under section 1895(b) of the Social Security Act (42 U.S.C. 1395fff(b)) for home health services furnished during fiscal year 2001, the Secretary of Health and Human Services shall— ‘‘(A) with respect to episodes and visits ending on or after October 1, 2000, and before April 1, 2001, use the final standardized and budget neutral prospective payment amounts for 60-day episodes and standard- ized average per visit amounts for fiscal year 2001 as published by the Secretary in the Federal Register on July 3, 2000 (65 Fed. Reg. 41128–41214); and ‘‘(B) with respect to episodes and visits ending on or after April 1, 2001, and before October 1, 2001, use such amounts increased by 2.2 percent. ‘‘(2) NO EFFECT ON OTHER PAYMENTS OR DETERMINA- TIONS.—The Secretary shall not take the provisions of paragraph (1) into account for purposes of payments, determinations, or budget neutrality adjustments under section 1895 of the Social Security Act.’’ TEMPORARY TWO-MONTH PERIODIC INTERIM PAYMENT Pub. L. 106–554, § 1(a)(6) [title V, § 503], Dec. 21, 2000, 114 Stat. 2763, 2763A–530, provided that: ‘‘(a) IN GENERAL.—Notwithstanding the amendments made by section 4603(b) of BBA [Pub. L. 105–33, amend- ing section 1395g of this title] (42 U.S.C. 1395fff note), in the case of a home health agency that was receiving periodic interim payments under section 1815(e)(2) of the Social Security Act (42 U.S.C. 1395g(e)(2)) as of Sep- tember 30, 2000, and that is not described in subsection (b), the Secretary of Health and Human Services shall, as soon as practicable, make a single periodic interim payment to such agency in an amount equal to four times the last full fortnightly periodic interim pay- ment made to such agency under the payment system in effect prior to the implementation of the prospective Page 3993 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395fff payment system under section 1895(b) of such Act (42 U.S.C. 1395fff(b)). Such amount of such periodic interim payment shall be included in the tentative settlement of the last cost report for the home health agency under the payment system in effect prior to the imple- mentation of such prospective payment system, regard- less of the ending date of such cost report. ‘‘(b) EXCEPTIONS.—The Secretary shall not make an additional periodic interim payment under subsection (a) in the case of a home health agency (determined as of the day that such payment would otherwise be made) that— ‘‘(1) notifies the Secretary that such agency does not want to receive such payment; ‘‘(2) is not receiving payments pursuant to section 405.371 of title 42, Code of Federal Regulations; ‘‘(3) is excluded from the medicare program under title XI of the Social Security Act [42 U.S.C. 1301 et seq.]; ‘‘(4) no longer has a provider agreement under sec- tion 1866 of such Act (42 U.S.C. 1395cc); ‘‘(5) is no longer in business; or ‘‘(6) is subject to a court order providing for the withholding of medicare payments under title XVIII of such Act [42 U.S.C. 1395 et seq.].’’ TEMPORARY INCREASE FOR HOME HEALTH SERVICES FURNISHED IN A RURAL AREA Pub. L. 106–554, § 1(a)(6) [title V, § 508], Dec. 21, 2000, 114 Stat. 2763, 2763A–533, provided that: ‘‘(a) 24-MONTH INCREASE BEGINNING APRIL 1, 2001.—In the case of home health services furnished in a rural area (as defined in section 1886(d)(2)(D) of the Social Se- curity Act (42 U.S.C. 1395ww(d)(2)(D))) on or after April 1, 2001, and before April 1, 2003, the Secretary of Health and Human Services shall increase the payment amount otherwise made under section 1895 of such Act (42 U.S.C. 1395fff) for such services by 10 percent. ‘‘(b) WAIVING BUDGET NEUTRALITY.—The Secretary shall not reduce the standard prospective payment amount (or amounts) under section 1895 of the Social Security Act (42 U.S.C. 1395fff) applicable to home health services furnished during a period to offset the increase in payments resulting from the application of subsection (a).’’ CLARIFICATION OF APPLICATION OF TEMPORARY PAYMENT INCREASES FOR 2001 Pub. L. 106–554, § 1(a)(6) [title V, § 547(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A–553, provided that: ‘‘(1) TRANSITIONAL ALLOWANCE FOR FULL MARKETBASKET [SIC] INCREASE.—The payment increase provided under section 502(b)(1)(B) [set out as a note above] shall not apply to episodes and visits ending after fiscal year 2001 and shall not be taken into ac- count in calculating the payment amounts applicable for subsequent episodes and visits. ‘‘(2) TEMPORARY INCREASE FOR RURAL HOME HEALTH SERVICES.—The payment increase provided under sec- tion 508(a) [set out as a note above] for the period be- ginning on April 1, 2001, and ending on September 30, 2002, shall not apply to episodes and visits ending after such period, and shall not be taken into account in cal- culating the payment amounts applicable for episodes and visits occurring after such period.’’ ADJUSTMENT TO REFLECT ADMINISTRATIVE COSTS NOT INCLUDED IN THE INTERIM PAYMENT SYSTEM; GAO REPORT ON COSTS OF COMPLIANCE WITH OASIS DATA COLLECTION REQUIREMENTS Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 301], Nov. 29, 1999, 113 Stat. 1536, 1501A–358, provided that: ‘‘(a) ADJUSTMENT TO REFLECT ADMINISTRATIVE COSTS ‘‘(1) IN GENERAL.—In the case of a home health agency that furnishes home health services to a medicare beneficiary, for each such beneficiary to whom the agency furnished such services during the agency’s cost reporting period beginning in fiscal year 2000, the Secretary of Health and Human Serv- ices shall pay the agency, in addition to any amount of payment made under section 1861(v)(1)(L) of the Social Security Act (42 U.S.C. 1395x(v)(1)(L)) for the beneficiary and only for such cost reporting period, an aggregate amount of $10 to defray costs incurred by the agency attributable to data collection and re- porting requirements under the Outcome and Assess- ment Information Set (OASIS) required by reason of section 4602(e) of BBA [the Balanced Budget Act of 1997, Pub. L. 105–33] (42 U.S.C. 1395fff note). ‘‘(2) PAYMENT SCHEDULE ‘‘(A) MIDYEAR PAYMENT.—Not later than April 1, 2000, the Secretary shall pay to a home health agen- cy an amount that the Secretary estimates to be 50 percent of the aggregate amount payable to the agency by reason of this subsection. ‘‘(B) UPON SETTLED COST REPORT.—The Secretary shall pay the balance of amounts payable to an agency under this subsection on the date that the cost report submitted by the agency for the cost re- porting period beginning in fiscal year 2000 is set- tled. ‘‘(3) PAYMENT FROM TRUST FUNDS.—Payments under this subsection shall be made, in appropriate part as specified by the Secretary, from the Federal Hospital Insurance Trust Fund and from the Federal Supple- mentary Medical Insurance Trust Fund. ‘‘(4) DEFINITIONS.—In this subsection: ‘‘(A) HOME HEALTH AGENCY.—The term ‘home health agency’ has the meaning given that term under section 1861(o) of the Social Security Act (42 U.S.C. 1395x(o)). ‘‘(B) HOME HEALTH SERVICES.—The term ‘home health services’ has the meaning given that term under section 1861(m) of such Act (42 U.S.C. 1395x(m)). ‘‘(C) MEDICARE BENEFICIARY.—The term ‘medicare beneficiary’ means a beneficiary described in sec- tion 1861(v)(1)(L)(vi)(II) of the Social Security Act (42 U.S.C. 1395x(v)(1)(L)(vi)(II)). ‘‘(b) GAO REPORT ON COSTS OF COMPLIANCE WITH OASIS DATA COLLECTION REQUIREMENTS.— ‘‘(1) REPORT TO CONGRESS.— ‘‘(A) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act [Nov. 29, 1999], the Comptroller General of the United States shall submit to Congress a report on the matters de- scribed in subparagraph (B) with respect to the data collection requirement of patients of such agencies under the Outcome and Assessment Information Set (OASIS) standard as part of the comprehensive assessment of patients. ‘‘(B) MATTERS STUDIED.—For purposes of subpara- graph (A), the matters described in this subpara- graph include the following: ‘‘(i) An assessment of the costs incurred by medicare home health agencies in complying with such data collection requirement. ‘‘(ii) An analysis of the effect of such data col- lection requirement on the privacy interests of patients from whom data is collected. ‘‘(C) AUDIT.—The Comptroller General shall con- duct an independent audit of the costs described in subparagraph (B)(i). Not later than 180 days after receipt of the report under subparagraph (A), the Comptroller General shall submit to Congress a re- port describing the Comptroller General’s findings with respect to such audit, and shall include com- ments on the report submitted to Congress by the Secretary of Health and Human Services under sub- paragraph (A). ‘‘(2) DEFINITIONS.—In this subsection: ‘‘(A) COMPREHENSIVE ASSESSMENT OF PATIENTS.— The term ‘comprehensive assessment of patients’ means the rule published by the Health Care Fi- nancing Administration that requires, as a condi- tion of participation in the medicare program, a home health agency to provide a patient-specific comprehensive assessment that accurately reflects the patient’s current status and that incorporates Page 3994 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ggg the Outcome and Assessment Information Set (OASIS). ‘‘(B) OUTCOME AND ASSESSMENT INFORMATION SET.—The term ‘Outcome and Assessment Informa- tion Set’ means the standard provided under the rule relating to data items that must be used in conducting a comprehensive assessment of pa- tients.’’ REPORT TO CONGRESS ON NEED FOR REDUCTIONS Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 302(c)], Nov. 29, 1999, 113 Stat. 1536, 1501A–360, as amended by Pub. L. 106–554, § 1(a)(6) [title V, § 501(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–529, provided that: ‘‘Not later than April 1, 2002, the Comptroller General of the United States shall submit to Congress a report analyzing the need for the 15 percent reduction under subsection (b)(3)(A)(ii) of such section [42 U.S.C. 1395fff(b)(3)(A)(ii)], or for any reduction, in the com- putation of the base payment amounts under the pro- spective payment system for home health services es- tablished under such section.’’ STUDY AND REPORT TO CONGRESS REGARDING EXEMP- TION OF RURAL AGENCIES AND POPULATIONS FROM INCLUSION IN HOME HEALTH PROSPECTIVE PAYMENT SYSTEM Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 307], Nov. 29, 1999, 113 Stat. 1536, 1501A–362, provided that: ‘‘(a) STUDY.—The Medicare Payment Advisory Com- mission (referred to in this section as ‘MedPAC’) shall conduct a study to determine the feasibility and advis- ability of exempting home health services provided by a home health agency (or by others under arrange- ments with such agency) located in a rural area, or to an individual residing in a rural area, from payment under the prospective payment system for such services established by the Secretary of Health and Human Services in accordance with section 1895 of the Social Security Act (42 U.S.C. 1395fff). ‘‘(b) REPORT.—Not later than 2 years after the date of the enactment of this Act [Nov. 29, 1999], MedPAC shall submit a report to Congress on the study conducted under subsection (a), together with any recommenda- tions for legislation that MedPAC determines to be ap- propriate as a result of such study.’’ CASE MIX SYSTEM DEVELOPMENT Pub. L. 105–33, title IV, § 4602(d), Aug. 5, 1997, 111 Stat. 467, provided that: ‘‘The Secretary of Health and Human Services shall expand research on a prospective payment system for home health agencies under the medicare program that ties prospective payments to a unit of service, including an intensive effort to develop a reliable case mix adjuster that explains a significant amount of the variances in costs.’’ CASE MIX SYSTEM; SUBMISSION OF DATA Pub. L. 105–33, title IV, § 4602(e), Aug. 5, 1997, 111 Stat. 467, provided that: ‘‘Effective for cost reporting periods beginning on or after October 1, 1997, the Secretary of Health and Human Services may require all home health agencies to submit additional information that the Secretary considers necessary for the development of a reliable case mix system.’’ PROSPECTIVE PAYMENT SYSTEM CONTINGENCY Pub. L. 105–33, title IV, § 4603(e), Aug. 5, 1997, 111 Stat. 471, as amended by Pub. L. 105–277, div. J, title V, § 5101(c)(3), Oct. 21, 1998, 112 Stat. 2681–914, provided that if the Secretary of Health and Human Services did not establish and implement the prospective payment sys- tem for home health services described in subsec. (b) of this section for portions of cost reporting periods de- scribed in section 4603(d) of Pub. L. 105–33 (set out as a note above), for such portions the Secretary was to pro- vide for a reduction by 15 percent in the cost limits and per beneficiary limits described in section 1395x(v)(1)(L) of this title, as those limits would otherwise have been in effect on Sept. 30, 2000, prior to repeal by Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 302(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–359. REPORTS TO CONGRESS REGARDING HOME HEALTH COST CONTAINMENT Pub. L. 105–33, title IV, § 4616, Aug. 5, 1997, 111 Stat. 475, provided that: ‘‘(a) ESTIMATE.—Not later than October 1, 1997, the Secretary of Health and Human Services shall submit to the Committees on Commerce and Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report that includes an esti- mate of the outlays that will be made under parts A and B of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq., 1395j et seq.] for the provision of home health services during each of fiscal years 1998 through 2002. ‘‘(b) ANNUAL REPORT.—Not later than the end of each of years 1999 through 2002, the Secretary shall submit to such Committees a report that compares the actual outlays under such parts for such services during the fiscal year ending in the year, to the outlays estimated under subsection (a) for such fiscal year. If the Sec- retary finds that such actual outlays were greater than such estimated outlays for the fiscal year, the Sec- retary shall include in the report recommendations re- garding beneficiary copayments for home health serv- ices provided under the medicare program or such other methods as will reduce the growth in outlays for home health services under the medicare program.’’ § 1395ggg. Omitted Editorial Notes CODIFICATION Section, act Aug. 14, 1935, ch. 531, title XVIII, § 1896, as added Pub. L. 105–33, title IV, § 4015(a), Aug. 5, 1997, 111 Stat. 337; amended Pub. L. 106–398, § 1 [[div. A], title VII, § 712(a)(2), (b)–(e)], Oct. 30, 2000, 114 Stat. 1654, 1654A–177, 1654A–178; Pub. L. 107–314, div. A, title VII, § 713, Dec. 2, 2002, 116 Stat. 2589; Pub. L. 108–173, title VII, § 736(c)(8), Dec. 8, 2003, 117 Stat. 2356, authorized the Secretary of Health and Human Services and the Sec- retary of Defense, acting jointly, to establish a dem- onstration project for providing medicare health care services to certain medicare-eligible military retirees or dependents in a military treatment facility or by a designated provider, to be conducted during the 4-year period beginning on January 1, 1998. § 1395hhh. Health care infrastructure improve- ment program (a) Establishment The Secretary shall establish a loan program that provides loans to qualifying hospitals for payment of the capital costs of projects de- scribed in subsection (d). (b) Application No loan may be provided under this section to a qualifying hospital except pursuant to an ap- plication that is submitted and approved in a time, manner, and form specified by the Sec- retary. A loan under this section shall be on such terms and conditions and meet such re- quirements as the Secretary determines appro- priate. (c) Selection criteria (1) In general The Secretary shall establish criteria for se- lecting among qualifying hospitals that apply for a loan under this section. Such criteria shall consider the extent to which the project