42 U.S.C. § 1395ff — Determinations; appeals

Page 3672 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff (ii) MedPAC submission of comments During the comment period for the pro- posed rule described in clause (i), the Medi- care Payment Advisory Commission may submit comments to the Secretary on the proposed criteria under such clause. (iii) Updating The Secretary may update the criteria established under this subparagraph through rulemaking. (B) Stakeholder submission of physician-fo- cused payment models On an ongoing basis, individuals and stakeholder entities may submit to the Committee proposals for physician-focused payment models that such individuals and entities believe meet the criteria described in subparagraph (A). (C) Committee review of models submitted The Committee, on a periodic basis— (i) shall review models submitted under subparagraph (B); (ii) may provide individuals and stake- holder entities who submitted such models with— (I) initial feedback on such models re- garding the extent to which such models meet the criteria described in subpara- graph (A); and (II) an explanation of the basis for the feedback provided under subclause (I); and (iii) shall prepare comments and rec- ommendations regarding whether such models meet the criteria described in sub- paragraph (A) and submit such comments and recommendations to the Secretary. (D) Secretary review and response The Secretary shall review the comments and recommendations submitted by the Committee under subparagraph (C) and post a detailed response to such comments and recommendations on the Internet website of the Centers for Medicare & Medicaid Serv- ices. (3) Rule of construction Nothing in this subsection shall be con- strued to impact the development or testing of models under this subchapter or subchapters XI, XIX, or XXI. (Aug. 14, 1935, ch. 531, title XVIII, § 1868, as added Pub. L. 101–508, title IV, § 4112, Nov. 5, 1990, 104 Stat. 1388–64; amended Pub. L. 108–173, title IX, § 942(a), Dec. 8, 2003, 117 Stat. 2420; Pub. L. 111–148, title III, § 3134(b)(2), Mar. 23, 2010, 124 Stat. 435; Pub. L. 114–10, title I, § 101(e)(1), Apr. 16, 2015, 129 Stat. 115; Pub. L. 115–123, div. E, title X, § 51003(b), Feb. 9, 2018, 132 Stat. 295; Pub. L. 117–286, § 4(a)(255), (c)(42), Dec. 27, 2022, 136 Stat. 4334, 4359.) Editorial Notes PRIOR PROVISIONS A prior section 1395ee, act Aug. 14, 1935, ch. 531, title XVIII, § 1868, as added July 30, 1965, Pub. L. 89–97, title I, § 102(a), 79 Stat. 329, provided for creation of a Na- tional Medical Review Committee, functions of such Committee, including submission of annual reports to the Secretary and Congress, employment of technical assistance, and for availability of assistance and data, prior to repeal by Pub. L. 90–248, title I, § 164(c), Jan. 2, 1968, 81 Stat. 874. AMENDMENTS 2022—Subsec. (c)(1)(B)(iv). Pub. L. 117–286, § 4(c)(42), substituted ‘‘subchapter I of chapter 131 of title 5.’’ for ‘‘title I of the Ethics in Government Act of 1978 (Public Law 95–521).’’ Subsec. (c)(1)(G). Pub. L. 117–286, § 4(a)(255), sub- stituted ‘‘Section 1013 of title 5’’ for ‘‘Section 14 of the Federal Advisory Committee Act (5 U.S.C. App.)’’. 2018—Subsec. (c)(2)(C). Pub. L. 115–123 amended sub- par. (C) generally. Prior to amendment, text read as follows: ‘‘The Committee shall, on a periodic basis, re- view models submitted under subparagraph (B), prepare comments and recommendations regarding whether such models meet the criteria described in subpara- graph (A), and submit such comments and rec- ommendations to the Secretary.’’ 2015—Subsec. (c). Pub. L. 114–10 added subsec. (c). 2010—Subsec. (a). Pub. L. 111–148 struck out subsec. (a) which related to the Practicing Physicians Advisory Council. 2003—Pub. L. 108–173, § 942(a)(1), inserted ‘‘; Council for Technology and Innovation’’ in section catchline. Subsec. (a). Pub. L. 108–173, § 942(a)(2)–(4), inserted subsec. heading, redesignated existing provisions as par. (1), substituted ‘‘in this subsection’’ for ‘‘in this section’’, and redesignated former subsecs. (b) and (c) as pars. (2) and (3), respectively. Subsec. (b). Pub. L. 108–173, § 942(a)(5), added subsec. (b). Former subsec. (b) redesignated par. (2) of subsec. (a). Subsec. (c). Pub. L. 108–173, § 942(a)(4), redesignated subsec. (c) as par. (3) of subsec. (a). Statutory Notes and Related Subsidiaries TERMINATION OF ADVISORY COUNCILS Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the Presi- dent or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by Congress, its duration is other- wise provided by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees. § 1395ff. Determinations; appeals (a) Initial determinations (1) Promulgations of regulations The Secretary shall promulgate regulations and make initial determinations with respect to benefits under part A or part B in accord- ance with those regulations for the following: (A) The initial determination of whether an individual is entitled to benefits under such parts. (B) The initial determination of the amount of benefits available to the indi- vidual under such parts. (C) Any other initial determination with respect to a claim for benefits under such parts, including an initial determination by the Secretary that payment may not be made, or may no longer be made, for an item or service under such parts, an initial deter- mination made by a quality improvement organization under section 1320c–3(a)(2) of Page 3673 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff this title, and an initial determination made by an entity pursuant to a contract (other than a contract under section 1395w–22 of this title) with the Secretary to administer provisions of this subchapter or subchapter XI. (2) Deadlines for making initial determinations (A) In general Subject to subparagraph (B), in promul- gating regulations under paragraph (1), ini- tial determinations shall be concluded by not later than the 45-day period beginning on the date the fiscal intermediary or the carrier, as the case may be, receives a claim for benefits from an individual as described in paragraph (1). Notice of such determina- tion shall be mailed to the individual filing the claim before the conclusion of such 45- day period. (B) Clean claims Subparagraph (A) shall not apply with re- spect to any claim that is subject to the re- quirements of section 1395h(c)(2) or 1395u(c)(2) of this title. (3) Redeterminations (A) In general In promulgating regulations under para- graph (1) with respect to initial determina- tions, such regulations shall provide for a fiscal intermediary or a carrier to make a redetermination with respect to a claim for benefits that is denied in whole or in part. (B) Limitations (i) Appeal rights No initial determination may be recon- sidered or appealed under subsection (b) unless the fiscal intermediary or carrier has made a redetermination of that initial determination under this paragraph. (ii) Decisionmaker No redetermination may be made by any individual involved in the initial deter- mination. (C) Deadlines (i) Filing for redetermination A redetermination under subparagraph (A) shall be available only if notice is filed with the Secretary to request the redeter- mination by not later than the end of the 120-day period beginning on the date the individual receives notice of the initial de- termination under paragraph (2). (ii) Concluding redeterminations Redeterminations shall be concluded by not later than the 60-day period beginning on the date the fiscal intermediary or the carrier, as the case may be, receives a re- quest for a redetermination. Notice of such determination shall be mailed to the indi- vidual filing the claim before the conclu- sion of such 60-day period. (D) Construction For purposes of the succeeding provisions of this section a redetermination under this paragraph shall be considered to be part of the initial determination. (4) Requirements of notice of determinations With respect to an initial determination in- sofar as it results in a denial of a claim for benefits— (A) the written notice on the determina- tion shall include— (i) the reasons for the determination, in- cluding whether a local medical review policy or a local coverage determination was used; (ii) the procedures for obtaining addi- tional information concerning the deter- mination, including the information de- scribed in subparagraph (B); and (iii) notification of the right to seek a redetermination or otherwise appeal the determination and instructions on how to initiate such a redetermination under this section; (B) such written notice shall be provided in printed form and written in a manner cal- culated to be understood by the individual entitled to benefits under part A or enrolled under part B, or both; and (C) the individual provided such written notice may obtain, upon request, informa- tion on the specific provision of the policy, manual, or regulation used in making the redetermination. (5) Requirements of notice of redeterminations With respect to a redetermination insofar as it results in a denial of a claim for benefits— (A) the written notice on the redetermina- tion shall include— (i) the specific reasons for the redeter- mination; (ii) as appropriate, a summary of the clinical or scientific evidence used in mak- ing the redetermination; (iii) a description of the procedures for obtaining additional information con- cerning the redetermination; and (iv) notification of the right to appeal the redetermination and instructions on how to initiate such an appeal under this section; (B) such written notice shall be provided in printed form and written in a manner cal- culated to be understood by the individual entitled to benefits under part A or enrolled under part B, or both; and (C) the individual provided such written notice may obtain, upon request, informa- tion on the specific provision of the policy, manual, or regulation used in making the redetermination. (b) Appeal rights (1) In general (A) Reconsideration of initial determination Subject to subparagraph (D), any indi- vidual dissatisfied with any initial deter- mination under subsection (a)(1) shall be en- titled to reconsideration of the determina- tion, and, subject to subparagraphs (D) and (E), a hearing thereon by the Secretary to Page 3674 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff the same extent as is provided in section 405(b) of this title and, subject to paragraph (2), to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title. For purposes of the preceding sentence, any reference to the ‘‘Commissioner of Social Security’’ or the ‘‘Social Security Administration’’ in sub- section (g) or (l) of section 405 of this title shall be considered a reference to the ‘‘Sec- retary’’ or the ‘‘Department of Health and Human Services’’, respectively. (B) Representation by provider or supplier (i) In general Sections 406(a), 1302, and 1395hh of this title shall not be construed as authorizing the Secretary to prohibit an individual from being represented under this section by a person that furnishes or supplies the individual, directly or indirectly, with services or items, solely on the basis that the person furnishes or supplies the indi- vidual with such a service or item. (ii) Mandatory waiver of right to payment from beneficiary Any person that furnishes services or items to an individual may not represent an individual under this section with re- spect to the issue described in section 1395pp(a)(2) of this title unless the person has waived any rights for payment from the beneficiary with respect to the serv- ices or items involved in the appeal. (iii) Prohibition on payment for represen- tation If a person furnishes services or items to an individual and represents the individual under this section, the person may not im- pose any financial liability on such indi- vidual in connection with such representa- tion. (iv) Requirements for representatives of a beneficiary The provisions of section 405(j) of this title and of section 406 of this title (other than subsection (a)(4) of such section) re- garding representation of claimants shall apply to representation of an individual with respect to appeals under this section in the same manner as they apply to rep- resentation of an individual under those sections. (C) Succession of rights in cases of assign- ment The right of an individual to an appeal under this section with respect to an item or service may be assigned to the provider of services or supplier of the item or service upon the written consent of such individual using a standard form established by the Secretary for such an assignment. (D) Time limits for filing appeals (i) Reconsiderations Reconsideration under subparagraph (A) shall be available only if the individual de- scribed in subparagraph (A) files notice with the Secretary to request reconsider- ation by not later than the end of the 180- day period beginning on the date the indi- vidual receives notice of the redetermina- tion under subsection (a)(3), or within such additional time as the Secretary may allow. (ii) Hearings conducted by the Secretary The Secretary shall establish in regula- tions time limits for the filing of a request for a hearing by the Secretary in accord- ance with provisions in sections 405 and 406 of this title. (E) Amounts in controversy (i) In general A hearing (by the Secretary) shall not be available to an individual under this sec- tion if the amount in controversy is less than $100, and judicial review shall not be available to the individual if the amount in controversy is less than $1,000. (ii) Aggregation of claims In determining the amount in con- troversy, the Secretary, under regulations, shall allow two or more appeals to be ag- gregated if the appeals involve— (I) the delivery of similar or related services to the same individual by one or more providers of services or suppliers, or (II) common issues of law and fact aris- ing from services furnished to two or more individuals by one or more pro- viders of services or suppliers. (iii) Adjustment of dollar amounts For requests for hearings or judicial re- view made in a year after 2004, the dollar amounts specified in clause (i) shall be equal to such dollar amounts increased by the percentage increase in the medical care component of the consumer price index for all urban consumers (U.S. city average) for July 2003 to the July pre- ceding the year involved. Any amount de- termined under the previous sentence that is not a multiple of $10 shall be rounded to the nearest multiple of $10. (F) Expedited proceedings (i) Expedited determination In the case of an individual who has re- ceived notice from a provider of services that such provider plans— (I) to terminate services provided to an individual and a physician certifies that failure to continue the provision of such services is likely to place the individ- ual’s health at significant risk, or (II) to discharge the individual from the provider of services, the individual may request, in writing or orally, an expedited determination or an expedited reconsideration of an initial de- termination made under subsection (a)(1), as the case may be, and the Secretary shall provide such expedited determination or expedited reconsideration. Page 3675 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff (ii) Reference to expedited access to judi- cial review For the provision relating to expedited access to judicial review, see paragraph (2). (G) Reopening and revision of determina- tions The Secretary may reopen or revise any initial determination or reconsidered deter- mination described in this subsection under guidelines established by the Secretary in regulations. (2) Expedited access to judicial review (A) In general The Secretary shall establish a process under which a provider of services or sup- plier that furnishes an item or service or an individual entitled to benefits under part A or enrolled under part B, or both, who has filed an appeal under paragraph (1) (other than an appeal filed under paragraph (1)(F)(i)) may obtain access to judicial re- view when a review entity (described in sub- paragraph (D)), on its own motion or at the request of the appellant, determines that the Departmental Appeals Board does not have the authority to decide the question of law or regulation relevant to the matters in con- troversy and that there is no material issue of fact in dispute. The appellant may make such request only once with respect to a question of law or regulation for a specific matter in dispute in a case of an appeal. (B) Prompt determinations If, after or coincident with appropriately filing a request for an administrative hear- ing, the appellant requests a determination by the appropriate review entity that the Departmental Appeals Board does not have the authority to decide the question of law or regulations relevant to the matters in controversy and that there is no material issue of fact in dispute, and if such request is accompanied by the documents and mate- rials as the appropriate review entity shall require for purposes of making such deter- mination, such review entity shall make a determination on the request in writing within 60 days after the date such review en- tity receives the request and such accom- panying documents and materials. Such a determination by such review entity shall be considered a final decision and not subject to review by the Secretary. (C) Access to judicial review (i) In general If the appropriate review entity— (I) determines that there are no mate- rial issues of fact in dispute and that the only issues to be adjudicated are ones of law or regulation that the Departmental Appeals Board does not have authority to decide; or (II) fails to make such determination within the period provided under sub- paragraph (B), then the appellant may bring a civil action as described in this subparagraph. (ii) Deadline for filing Such action shall be filed, in the case de- scribed in— (I) clause (i)(I), within 60 days of the date of the determination described in such clause; or (II) clause (i)(II), within 60 days of the end of the period provided under sub- paragraph (B) for the determination. (iii) Venue Such action shall be brought in the dis- trict court of the United States for the ju- dicial district in which the appellant is lo- cated (or, in the case of an action brought jointly by more than one applicant, the ju- dicial district in which the greatest num- ber of applicants are located) or in the Dis- trict Court for the District of Columbia. (iv) Interest on any amounts in controversy Where a provider of services or supplier is granted judicial review pursuant to this paragraph, the amount in controversy (if any) shall be subject to annual interest be- ginning on the first day of the first month beginning after the 60-day period as deter- mined pursuant to clause (ii) and equal to the rate of interest on obligations issued for purchase by the Federal Supple- mentary Medical Insurance Trust Fund for the month in which the civil action au- thorized under this paragraph is com- menced, to be awarded by the reviewing court in favor of the prevailing party. No interest awarded pursuant to the preceding sentence shall be deemed income or cost for the purposes of determining reimburse- ment due providers of services or suppliers under this subchapter. (D) Review entity defined For purposes of this subsection, the term ‘‘review entity’’ means an entity of up to three reviewers who are administrative law judges or members of the Departmental Ap- peals Board selected for purposes of making determinations under this paragraph. (3) Requiring full and early presentation of evi- dence by providers A provider of services or supplier may not introduce evidence in any appeal under this section that was not presented at the recon- sideration conducted by the qualified inde- pendent contractor under subsection (c), un- less there is good cause which precluded the introduction of such evidence at or before that reconsideration. (c) Conduct of reconsiderations by independent contractors (1) In general The Secretary shall enter into contracts with qualified independent contractors to con- duct reconsiderations of initial determina- tions made under subparagraphs (B) and (C) of subsection (a)(1). Contracts shall be for an ini- tial term of three years and shall be renewable on a triennial basis thereafter. (2) Qualified independent contractor For purposes of this subsection, the term ‘‘qualified independent contractor’’ means an Page 3676 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff entity or organization that is independent of any organization under contract with the Sec- retary that makes initial determinations under subsection (a)(1), and that meets the re- quirements established by the Secretary con- sistent with paragraph (3). (3) Requirements Any qualified independent contractor enter- ing into a contract with the Secretary under this subsection shall meet all of the following requirements: (A) In general The qualified independent contractor shall perform such duties and functions and as- sume such responsibilities as may be re- quired by the Secretary to carry out the pro- visions of this subsection, and shall have suf- ficient medical, legal, and other expertise (including knowledge of the program under this subchapter) and sufficient staffing to make reconsiderations under this sub- section. (B) Reconsiderations (i) In general The qualified independent contractor shall review initial determinations. Where an initial determination is made with re- spect to whether an item or service is rea- sonable and necessary for the diagnosis or treatment of illness or injury (under sec- tion 1395y(a)(1)(A) of this title), such re- view shall include consideration of the facts and circumstances of the initial de- termination by a panel of physicians or other appropriate health care professionals and any decisions with respect to the re- consideration shall be based on applicable information, including clinical experience (including the medical records of the indi- vidual involved) and medical, technical, and scientific evidence. (ii) Effect of national and local coverage determinations (I) National coverage determinations If the Secretary has made a national coverage determination pursuant to the requirements established under the third sentence of section 1395y(a) of this title, such determination shall be binding on the qualified independent contractor in making a decision with respect to a re- consideration under this section. (II) Local coverage determinations If the Secretary has made a local cov- erage determination, such determination shall not be binding on the qualified independent contractor in making a de- cision with respect to a reconsideration under this section. Notwithstanding the previous sentence, the qualified inde- pendent contractor shall consider the local coverage determination in making such decision. (III) Absence of national or local cov- erage determination In the absence of such a national cov- erage determination or local coverage determination, the qualified independent contractor shall make a decision with respect to the reconsideration based on applicable information, including clin- ical experience and medical, technical, and scientific evidence. (C) Deadlines for decisions (i) Reconsiderations Except as provided in clauses (iii) and (iv), the qualified independent contractor shall conduct and conclude a reconsider- ation under subparagraph (B), and mail the notice of the decision with respect to the reconsideration by not later than the end of the 60-day period beginning on the date a request for reconsideration has been timely filed. (ii) Consequences of failure to meet dead- line In the case of a failure by the qualified independent contractor to mail the notice of the decision by the end of the period de- scribed in clause (i) or to provide notice by the end of the period described in clause (iii), as the case may be, the party request- ing the reconsideration or appeal may re- quest a hearing before the Secretary, not- withstanding any requirements for a re- considered determination for purposes of the party’s right to such hearing. (iii) Expedited reconsiderations The qualified independent contractor shall perform an expedited reconsideration under subsection (b)(1)(F) as follows: (I) Deadline for decision Notwithstanding section 416(j) of this title and subject to clause (iv), not later than the end of the 72-hour period begin- ning on the date the qualified inde- pendent contractor has received a re- quest for such reconsideration and has received such medical or other records needed for such reconsideration, the qualified independent contractor shall provide notice (by telephone and in writ- ing) to the individual and the provider of services and attending physician of the individual of the results of the reconsid- eration. Such reconsideration shall be conducted regardless of whether the pro- vider of services or supplier will charge the individual for continued services or whether the individual will be liable for payment for such continued services. (II) Consultation with beneficiary In such reconsideration, the qualified independent contractor shall solicit the views of the individual involved. (III) Special rule for hospital discharges A reconsideration of a discharge from a hospital shall be conducted under this clause in accordance with the provisions of paragraphs (2), (3), and (4) of section 1320c–3(e) of this title as in effect on the date that precedes December 21, 2000. (iv) Extension An individual requesting a reconsider- ation under this subparagraph may be Page 3677 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff 1 So in original. 2 So in original. The word ‘‘and’’ probably should not appear. 3 So in original. A comma probably should appear. granted such additional time as the indi- vidual specifies (not to exceed 14 days) for the qualified independent contractor to conclude the reconsideration. The indi- vidual may request such additional time orally or in writing. (D) Qualifications for reviewers The requirements of subsection (g) shall be met (relating to qualifications of reviewing professionals). (E) Explanation of decision Any decision with respect to a reconsider- ation of a qualified independent contractor shall be in writing, be written in a manner calculated to be understood by the indi- vidual entitled to benefits under part A or enrolled under part B, or both, and shall in- clude (to the extent appropriate) and shall include 1 a detailed explanation of the deci- sion as well as a discussion of the pertinent facts and applicable regulations applied in making such decision, and 2 a notification of the right to appeal such determination and instructions on how to initiate such appeal under this section 3 and 3 in the case of a de- termination of whether an item or service is reasonable and necessary for the diagnosis or treatment of illness or injury (under sec- tion 1395y(a)(1)(A) of this title) 3 an expla- nation of the medical and scientific ration- ale for the decision. (F) Notice requirements Whenever a qualified independent con- tractor makes a decision with respect to a reconsideration under this subsection, the qualified independent contractor shall promptly notify the entity responsible for the payment of claims under part A or part B of such decision. (G) Dissemination of decisions on reconsider- ations Each qualified independent contractor shall make available all decisions with re- spect to reconsiderations of such qualified independent contractors to fiscal inter- mediaries (under section 1395h of this title), carriers (under section 1395u of this title), quality improvement organizations (under part B of subchapter XI), Medicare+Choice organizations offering Medicare+Choice plans under part C, other entities under con- tract with the Secretary to make initial de- terminations under part A or part B or sub- chapter XI, and to the public. The Secretary shall establish a methodology under which qualified independent contractors shall carry out this subparagraph. (H) Ensuring consistency in decisions Each qualified independent contractor shall monitor its decisions with respect to reconsiderations to ensure the consistency of such decisions with respect to requests for reconsideration of similar or related mat- ters. (I) Data collection (i) In general Consistent with the requirements of clause (ii), a qualified independent con- tractor shall collect such information rel- evant to its functions, and keep and main- tain such records in such form and manner as the Secretary may require to carry out the purposes of this section and shall per- mit access to and use of any such informa- tion and records as the Secretary may re- quire for such purposes. (ii) Type of data collected Each qualified independent contractor shall keep accurate records of each deci- sion made, consistent with standards es- tablished by the Secretary for such pur- pose. Such records shall be maintained in an electronic database in a manner that provides for identification of the following: (I) Specific claims that give rise to ap- peals. (II) Situations suggesting the need for increased education for providers of serv- ices, physicians, or suppliers. (III) Situations suggesting the need for changes in national or local coverage de- termination. (IV) Situations suggesting the need for changes in local coverage determina- tions. (iii) Annual reporting Each qualified independent contractor shall submit annually to the Secretary (or otherwise as the Secretary may request) records maintained under this paragraph for the previous year. (J) Hearings by the Secretary The qualified independent contractor shall (i) submit such information as is required for an appeal of a decision of the contractor, and (ii) participate in such hearings as re- quired by the Secretary. (K) Independence requirements (i) In general Subject to clause (ii), a qualified inde- pendent contractor shall not conduct any activities in a case unless the entity— (I) is not a related party (as defined in subsection (g)(5)); (II) does not have a material familial, financial, or professional relationship with such a party in relation to such case; and (III) does not otherwise have a conflict of interest with such a party. (ii) Exception for reasonable compensation Nothing in clause (i) shall be construed to prohibit receipt by a qualified inde- pendent contractor of compensation from the Secretary for the conduct of activities under this section if the compensation is provided consistent with clause (iii). (iii) Limitations on entity compensation Compensation provided by the Secretary to a qualified independent contractor in Page 3678 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff connection with reviews under this section shall not be contingent on any decision rendered by the contractor or by any re- viewing professional. (4) Number of qualified independent contrac- tors The Secretary shall enter into contracts with a sufficient number of qualified inde- pendent contractors (but not fewer than 4 such contractors) to conduct reconsiderations con- sistent with the timeframes applicable under this subsection. (5) Limitation on qualified independent con- tractor liability No qualified independent contractor having a contract with the Secretary under this sub- section and no person who is employed by, or who has a fiduciary relationship with, any such qualified independent contractor or who furnishes professional services to such quali- fied independent contractor, shall be held by reason of the performance of any duty, func- tion, or activity required or authorized pursu- ant to this subsection or to a valid contract entered into under this subsection, to have violated any criminal law, or to be civilly lia- ble under any law of the United States or of any State (or political subdivision thereof) provided due care was exercised in the per- formance of such duty, function, or activity. (d) Deadlines for hearings by the Secretary; no- tice (1) Hearing by administrative law judge (A) In general Except as provided in subparagraph (B), an administrative law judge shall conduct and conclude a hearing on a decision of a quali- fied independent contractor under sub- section (c) and render a decision on such hearing by not later than the end of the 90- day period beginning on the date a request for hearing has been timely filed. (B) Waiver of deadline by party seeking hear- ing The 90-day period under subparagraph (A) shall not apply in the case of a motion or stipulation by the party requesting the hear- ing to waive such period. (2) Departmental Appeals Board review (A) In general The Departmental Appeals Board of the Department of Health and Human Services shall conduct and conclude a review of the decision on a hearing described in paragraph (1) and make a decision or remand the case to the administrative law judge for reconsid- eration by not later than the end of the 90- day period beginning on the date a request for review has been timely filed. (B) DAB hearing procedure In reviewing a decision on a hearing under this paragraph, the Departmental Appeals Board shall review the case de novo. (3) Consequences of failure to meet deadlines (A) Hearing by administrative law judge In the case of a failure by an administra- tive law judge to render a decision by the end of the period described in paragraph (1), the party requesting the hearing may re- quest a review by the Departmental Appeals Board of the Department of Health and Human Services, notwithstanding any re- quirements for a hearing for purposes of the party’s right to such a review. (B) Departmental Appeals Board review In the case of a failure by the Depart- mental Appeals Board to render a decision by the end of the period described in para- graph (2), the party requesting the hearing may seek judicial review, notwithstanding any requirements for a hearing for purposes of the party’s right to such judicial review. (4) Notice Notice of the decision of an administrative law judge shall be in writing in a manner cal- culated to be understood by the individual en- titled to benefits under part A or enrolled under part B, or both, and shall include— (A) the specific reasons for the determina- tion (including, to the extent appropriate, a summary of the clinical or scientific evi- dence used in making the determination); (B) the procedures for obtaining additional information concerning the decision; and (C) notification of the right to appeal the decision and instructions on how to initiate such an appeal under this section. (e) Administrative provisions (1) Limitation on review of certain regulations A regulation or instruction that relates to a method for determining the amount of pay- ment under part B and that was initially issued before January 1, 1981, shall not be sub- ject to judicial review. (2) Outreach The Secretary shall perform such outreach activities as are necessary to inform individ- uals entitled to benefits under this subchapter and providers of services and suppliers with re- spect to their rights of, and the process for, appeals made under this section. The Sec- retary shall use the toll-free telephone number maintained by the Secretary under section 1395b–2(b) of this title to provide information regarding appeal rights and respond to inquir- ies regarding the status of appeals. (3) Continuing education requirement for qualified independent contractors and ad- ministrative law judges The Secretary shall provide to each qualified independent contractor, and, in consultation with the Commissioner of Social Security, to administrative law judges that decide appeals of reconsiderations of initial determinations or other decisions or determinations under this section, such continuing education with respect to coverage of items and services under this subchapter or policies of the Sec- retary with respect to part B of subchapter XI as is necessary for such qualified independent contractors and administrative law judges to make informed decisions with respect to ap- peals. Page 3679 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff (4) Reports (A) Annual report to Congress The Secretary shall submit to Congress an annual report describing the number of ap- peals for the previous year, identifying issues that require administrative or legisla- tive actions, and including any recommenda- tions of the Secretary with respect to such actions. The Secretary shall include in such report an analysis of determinations by qualified independent contractors with re- spect to inconsistent decisions and an anal- ysis of the causes of any such inconsist- encies. (B) Survey Not less frequently than every 5 years, the Secretary shall conduct a survey of a valid sample of individuals entitled to benefits under this subchapter who have filed appeals of determinations under this section, pro- viders of services, and suppliers to determine the satisfaction of such individuals or enti- ties with the process for appeals of deter- minations provided for under this section and education and training provided by the Secretary with respect to that process. The Secretary shall submit to Congress a report describing the results of the survey, and shall include any recommendations for ad- ministrative or legislative actions that the Secretary determines appropriate. (f) Review of coverage determinations (1) National coverage determinations (A) In general Review of any national coverage deter- mination shall be subject to the following limitations: (i) Such a determination shall not be re- viewed by any administrative law judge. (ii) Such a determination shall not be held unlawful or set aside on the ground that a requirement of section 553 of title 5 or section 1395hh(b) of this title, relating to publication in the Federal Register or opportunity for public comment, was not satisfied. (iii) Upon the filing of a complaint by an aggrieved party, such a determination shall be reviewed by the Departmental Ap- peals Board of the Department of Health and Human Services. In conducting such a review, the Departmental Appeals Board— (I) shall review the record and shall permit discovery and the taking of evi- dence to evaluate the reasonableness of the determination, if the Board deter- mines that the record is incomplete or lacks adequate information to support the validity of the determination; (II) may, as appropriate, consult with appropriate scientific and clinical ex- perts; and (III) shall defer only to the reasonable findings of fact, reasonable interpreta- tions of law, and reasonable applications of fact to law by the Secretary. (iv) The Secretary shall implement a de- cision of the Departmental Appeals Board within 30 days of receipt of such decision. (v) A decision of the Departmental Ap- peals Board constitutes a final agency ac- tion and is subject to judicial review. (B) Definition of national coverage deter- mination For purposes of this section, the term ‘‘na- tional coverage determination’’ means a de- termination by the Secretary with respect to whether or not a particular item or serv- ice is covered nationally under this sub- chapter, but does not include a determina- tion of what code, if any, is assigned to a particular item or service covered under this subchapter or a determination with respect to the amount of payment made for a par- ticular item or service so covered. (2) Local coverage determination (A) In general Review of any local coverage determina- tion shall be subject to the following limita- tions: (i) Upon the filing of a complaint by an aggrieved party, such a determination shall be reviewed by an administrative law judge. The administrative law judge— (I) shall review the record and shall permit discovery and the taking of evi- dence to evaluate the reasonableness of the determination, if the administrative law judge determines that the record is incomplete or lacks adequate informa- tion to support the validity of the deter- mination; (II) may, as appropriate, consult with appropriate scientific and clinical ex- perts; and (III) shall defer only to the reasonable findings of fact, reasonable interpreta- tions of law, and reasonable applications of fact to law by the Secretary. (ii) Upon the filing of a complaint by an aggrieved party, a decision of an adminis- trative law judge under clause (i) shall be reviewed by the Departmental Appeals Board of the Department of Health and Human Services. (iii) The Secretary shall implement a de- cision of the administrative law judge or the Departmental Appeals Board within 30 days of receipt of such decision. (iv) A decision of the Departmental Ap- peals Board constitutes a final agency ac- tion and is subject to judicial review. (B) Definition of local coverage determina- tion For purposes of this section, the term ‘‘local coverage determination’’ means a de- termination by a fiscal intermediary or a carrier under part A or part B, as applicable, respecting whether or not a particular item or service is covered on an intermediary- or carrier-wide basis under such parts, in ac- cordance with section 1395y(a)(1)(A) of this title. (C) Local coverage determinations for clin- ical diagnostic laboratory tests For provisions relating to local coverage determinations for clinical diagnostic lab- Page 3680 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff 4 So in original. Probably should not be capitalized. oratory tests, see section 1395m–1(g) of this title. (3) No material issues of fact in dispute In the case of a determination that may oth- erwise be subject to review under paragraph (1)(A)(iii) or paragraph (2)(A)(i), where the moving party alleges that— (A) there are no material issues of fact in dispute, and (B) the only issue of law is the constitu- tionality of a provision of this subchapter, or that a regulation, determination, or rul- ing by the Secretary is invalid, the moving party may seek review by a court of competent jurisdiction without filing a complaint under such paragraph and without otherwise exhausting other administrative remedies. (4) Pending national coverage determinations (A) In general In the event the Secretary has not issued a national coverage or noncoverage deter- mination with respect to a particular type or class of items or services, an aggrieved person (as described in paragraph (5)) may submit to the Secretary a request to make such a determination with respect to such items or services. By not later than the end of the 90-day period beginning on the date the Secretary receives such a request (not- withstanding the receipt by the Secretary of new evidence (if any) during such 90-day pe- riod), the Secretary shall take one of the fol- lowing actions: (i) Issue a national coverage determina- tion, with or without limitations. (ii) Issue a national noncoverage deter- mination. (iii) Issue a determination that no na- tional coverage or noncoverage determina- tion is appropriate as of the end of such 90- day period with respect to national cov- erage of such items or services. (iv) Issue a notice that states that the Secretary has not completed a review of the request for a national coverage deter- mination and that includes an identifica- tion of the remaining steps in the Sec- retary’s review process and a deadline by which the Secretary will complete the re- view and take an action described in clause (i), (ii), or (iii). (B) Deemed action by the Secretary In the case of an action described in sub- paragraph (A)(iv), if the Secretary fails to take an action referred to in such clause by the deadline specified by the Secretary under such clause, then the Secretary is deemed to have taken an action described in subparagraph (A)(iii) as of the deadline. (C) Explanation of determination When issuing a determination under sub- paragraph (A), the Secretary shall include an explanation of the basis for the deter- mination. An action taken under subpara- graph (A) (other than clause (iv)) is deemed to be a national coverage determination for purposes of review under paragraph (1)(A). (5) Standing An action under this subsection seeking re- view of a national coverage determination or local coverage determination may be initiated only by individuals entitled to benefits under part A, or enrolled under part B, or both, who are in need of the items or services that are the subject of the coverage determination. (6) Publication on the Internet of decisions of hearings of the Secretary Each decision of a hearing by the Secretary with respect to a national coverage determina- tion shall be made public, and the Secretary shall publish each decision on the Medicare 4 Internet site of the Department of Health and Human Services. The Secretary shall remove from such decision any information that would identify any individual, provider of services, or supplier. (7) Annual report on national coverage deter- minations (A) In general Not later than December 1 of each year, beginning in 2001, the Secretary shall submit to Congress a report that sets forth a de- tailed compilation of the actual time periods that were necessary to complete and fully implement national coverage determina- tions that were made in the previous fiscal year for items, services, or medical devices not previously covered as a benefit under this subchapter, including, with respect to each new item, service, or medical device, a statement of the time taken by the Sec- retary to make and implement the necessary coverage, coding, and payment determina- tions, including the time taken to complete each significant step in the process of mak- ing and implementing such determinations. (B) Publication of reports on the Internet The Secretary shall publish each report submitted under clause (i) on the medicare Internet site of the Department of Health and Human Services. (8) Construction Nothing in this subsection shall be con- strued as permitting administrative or judi- cial review pursuant to this section insofar as such review is explicitly prohibited or re- stricted under another provision of law. (g) Qualifications of reviewers (1) In general In reviewing determinations under this sec- tion, a qualified independent contractor shall assure that— (A) each individual conducting a review shall meet the qualifications of paragraph (2); (B) compensation provided by the con- tractor to each such reviewer is consistent with paragraph (3); and (C) in the case of a review by a panel de- scribed in subsection (c)(3)(B) composed of physicians or other health care professionals (each in this subsection referred to as a ‘‘re- Page 3681 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff viewing professional’’), a reviewing profes- sional meets the qualifications described in paragraph (4) and, where a claim is regard- ing the furnishing of treatment by a physi- cian (allopathic or osteopathic) or the provi- sion of items or services by a physician (allopathic or osteopathic), a reviewing pro- fessional shall be a physician (allopathic or osteopathic). (2) Independence (A) In general Subject to subparagraph (B), each indi- vidual conducting a review in a case shall— (i) not be a related party (as defined in paragraph (5)); (ii) not have a material familial, finan- cial, or professional relationship with such a party in the case under review; and (iii) not otherwise have a conflict of in- terest with such a party. (B) Exception Nothing in subparagraph (A) shall be con- strued to— (i) prohibit an individual, solely on the basis of a participation agreement with a fiscal intermediary, carrier, or other con- tractor, from serving as a reviewing pro- fessional if— (I) the individual is not involved in the provision of items or services in the case under review; (II) the fact of such an agreement is disclosed to the Secretary and the indi- vidual entitled to benefits under part A or enrolled under part B, or both, or such individual’s authorized representative, and neither party objects; and (III) the individual is not an employee of the intermediary, carrier, or con- tractor and does not provide services ex- clusively or primarily to or on behalf of such intermediary, carrier, or con- tractor; (ii) prohibit an individual who has staff privileges at the institution where the treatment involved takes place from serv- ing as a reviewer merely on the basis of having such staff privileges if the exist- ence of such privileges is disclosed to the Secretary and such individual (or author- ized representative), and neither party ob- jects; or (iii) prohibit receipt of compensation by a reviewing professional from a contractor if the compensation is provided consistent with paragraph (3). For purposes of this paragraph, the term ‘‘participation agreement’’ means an agree- ment relating to the provision of health care services by the individual and does not in- clude the provision of services as a reviewer under this subsection. (3) Limitations on reviewer compensation Compensation provided by a qualified inde- pendent contractor to a reviewer in connec- tion with a review under this section shall not be contingent on the decision rendered by the reviewer. (4) Licensure and expertise Each reviewing professional shall be— (A) a physician (allopathic or osteopathic) who is appropriately credentialed or licensed in one or more States to deliver health care services and has medical expertise in the field of practice that is appropriate for the items or services at issue; or (B) a health care professional who is le- gally authorized in one or more States (in accordance with State law or the State regu- latory mechanism provided by State law) to furnish the health care items or services at issue and has medical expertise in the field of practice that is appropriate for such items or services. (5) Related party defined For purposes of this section, the term ‘‘re- lated party’’ means, with respect to a case under this subchapter involving a specific in- dividual entitled to benefits under part A or enrolled under part B, or both, any of the fol- lowing: (A) The Secretary, the medicare adminis- trative contractor involved, or any fidu- ciary, officer, director, or employee of the Department of Health and Human Services, or of such contractor. (B) The individual (or authorized rep- resentative). (C) The health care professional that pro- vides the items or services involved in the case. (D) The institution at which the items or services (or treatment) involved in the case are provided. (E) The manufacturer of any drug or other item that is included in the items or services involved in the case. (F) Any other party determined under any regulations to have a substantial interest in the case involved. (h) Prior determination process for certain items and services (1) Establishment of process (A) In general With respect to a medicare administrative contractor that has a contract under section 1395kk–1 of this title that provides for mak- ing payments under this subchapter with re- spect to physicians’ services (as defined in section 1395w–4(j)(3) of this title), the Sec- retary shall establish a prior determination process that meets the requirements of this subsection and that shall be applied by such contractor in the case of eligible requesters. (B) Eligible requester For purposes of this subsection, each of the following shall be an eligible requester: (i) A participating physician, but only with respect to physicians’ services to be furnished to an individual who is entitled to benefits under this subchapter and who has consented to the physician making the request under this subsection for those physicians’ services. (ii) An individual entitled to benefits under this subchapter, but only with re- Page 3682 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff spect to a physicians’ service for which the individual receives, from a physician, an advance beneficiary notice under section 1395pp(a) of this title. (2) Secretarial flexibility The Secretary shall establish by regulation reasonable limits on the physicians’ services for which a prior determination of coverage may be requested under this subsection. In es- tablishing such limits, the Secretary may con- sider the dollar amount involved with respect to the physicians’ service, administrative costs and burdens, and other relevant factors. (3) Request for prior determination (A) In general Subject to paragraph (2), under the process established under this subsection an eligible requester may submit to the contractor a re- quest for a determination, before the fur- nishing of a physicians’ service, as to wheth- er the physicians’ service is covered under this subchapter consistent with the applica- ble requirements of section 1395y(a)(1)(A) of this title (relating to medical necessity). (B) Accompanying documentation The Secretary may require that the re- quest be accompanied by a description of the physicians’ service, supporting documenta- tion relating to the medical necessity for the physicians’ service, and any other appro- priate documentation. In the case of a re- quest submitted by an eligible requester who is described in paragraph (1)(B)(ii), the Sec- retary may require that the request also be accompanied by a copy of the advance bene- ficiary notice involved. (4) Response to request (A) In general Under such process, the contractor shall provide the eligible requester with written notice of a determination as to whether— (i) the physicians’ service is so covered; (ii) the physicians’ service is not so cov- ered; or (iii) the contractor lacks sufficient infor- mation to make a coverage determination with respect to the physicians’ service. (B) Contents of notice for certain determina- tions (i) Noncoverage If the contractor makes the determina- tion described in subparagraph (A)(ii), the contractor shall include in the notice a brief explanation of the basis for the deter- mination, including on what national or local coverage or noncoverage determina- tion (if any) the determination is based, and a description of any applicable rights under subsection (a). (ii) Insufficient information If the contractor makes the determina- tion described in subparagraph (A)(iii), the contractor shall include in the notice a de- scription of the additional information re- quired to make the coverage determina- tion. (C) Deadline to respond Such notice shall be provided within the same time period as the time period applica- ble to the contractor providing notice of ini- tial determinations on a claim for benefits under subsection (a)(2)(A). (D) Informing beneficiary in case of physi- cian request In the case of a request by a participating physician under paragraph (1)(B)(i), the process shall provide that the individual to whom the physicians’ service is proposed to be furnished shall be informed of any deter- mination described in subparagraph (A)(ii) (relating to a determination of non-cov- erage) and the right (referred to in para- graph (6)(B)) to obtain the physicians’ serv- ice and have a claim submitted for the phy- sicians’ service. (5) Binding nature of positive determination If the contractor makes the determination described in paragraph (4)(A)(i), such deter- mination shall be binding on the contractor in the absence of fraud or evidence of misrepre- sentation of facts presented to the contractor. (6) Limitation on further review (A) In general Contractor determinations described in paragraph (4)(A)(ii) or (4)(A)(iii) (relating to pre-service claims) are not subject to further administrative appeal or judicial review under this section or otherwise. (B) Decision not to seek prior determination or negative determination does not im- pact right to obtain services, seek reim- bursement, or appeal rights Nothing in this subsection shall be con- strued as affecting the right of an individual who— (i) decides not to seek a prior determina- tion under this subsection with respect to physicians’ services; or (ii) seeks such a determination and has received a determination described in paragraph (4)(A)(ii), from receiving (and submitting a claim for) such physicians’ services and from obtaining administrative or judicial review respecting such claim under the other applicable provi- sions of this section. Failure to seek a prior determination under this subsection with re- spect to physicians’ service shall not be taken into account in such administrative or judicial review. (C) No prior determination after receipt of services Once an individual is provided physicians’ services, there shall be no prior determina- tion under this subsection with respect to such physicians’ services. (i) Mediation process for local coverage deter- minations (1) Establishment of process The Secretary shall establish a mediation process under this subsection through the use of a physician trained in mediation and em- Page 3683 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff ployed by the Centers for Medicare & Medicaid Services. (2) Responsibility of mediator Under the process established in paragraph (1), such a mediator shall mediate in disputes between groups representing providers of serv- ices, suppliers (as defined in section 1395x(d) of this title), and the medical director for a medicare administrative contractor whenever the regional administrator (as defined by the Secretary) involved determines that there was a systematic pattern and a large volume of complaints from such groups regarding deci- sions of such director or there is a complaint from the co-chair of the advisory committee for that contractor to such regional adminis- trator regarding such dispute. (Aug. 14, 1935, ch. 531, title XVIII, § 1869, as added Pub. L. 89–97, title I, § 102(a), July 30, 1965, 79 Stat. 330; amended Pub. L. 92–603, title II, § 299O(a), Oct. 30, 1972, 86 Stat. 1464; Pub. L. 98–369, div. B, title III, § 2354(b)(35), July 18, 1984, 98 Stat. 1102; Pub. L. 99–509, title IX, §§ 9313(a)(1), (b)(1), 9341(a)(1), Oct. 21, 1986, 100 Stat. 2002, 2037; Pub. L. 100–93, § 8(e), Aug. 18, 1987, 101 Stat. 694; Pub. L. 100–203, title IV, §§ 4082(a), (b), 4085(i)(18), (19), Dec. 22, 1987, 101 Stat. 1330–128, 1330–133; Pub. L. 103–296, title I, § 108(c)(5), Aug. 15, 1994, 108 Stat. 1485; Pub. L. 105–33, title IV, § 4611(c), Aug. 5, 1997, 111 Stat. 473; Pub. L. 106–554, § 1(a)(6) [title V, §§ 521(a), 522(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–534, 2763A–543; Pub. L. 108–173, title IX, §§ 931(d), 932(a), 933(a)(1), (b)–(d)(3), 938(a), 940(a), (b)(1), 940A(a), 948(b)(1), (c), Dec. 8, 2003, 117 Stat. 2399, 2402–2406, 2413, 2416, 2417, 2426; Pub. L. 112–40, title II, § 261(a)(3)(A), (F), Oct. 21, 2011, 125 Stat. 423; Pub. L. 113–93, title II, § 216(b)(2), Apr. 1, 2014, 128 Stat. 1060.) Editorial Notes AMENDMENTS 2014—Subsec. (f)(2)(C). Pub. L. 113–93 added subpar. (C). 2011—Subsec. (a)(1)(C). Pub. L. 112–40, § 261(a)(3)(A), substituted ‘‘quality improvement’’ for ‘‘utilization and quality control peer review’’. Subsec. (c)(3)(G). Pub. L. 112–40, § 261(a)(3)(F), sub- stituted ‘‘quality improvement organizations’’ for ‘‘peer review organizations’’. 2003—Subsec. (a)(3)(C)(ii). Pub. L. 108–173, § 940(a)(1), substituted ‘‘60-day period’’ for ‘‘30-day period’’ in two places. Subsec. (a)(4), (5). Pub. L. 108–173, § 933(c)(1), added pars. (4) and (5). Subsec. (b)(1)(A). Pub. L. 108–173, § 932(a)(1)(A), in- serted ‘‘, subject to paragraph (2),’’ before ‘‘to judicial review of the Secretary’s final decision’’. Subsec. (b)(1)(E)(iii). Pub. L. 108–173, § 940(b)(1), added cl. (iii). Subsec. (b)(1)(F)(ii). Pub. L. 108–173, § 932(a)(2), amend- ed heading and text of cl. (ii) generally. Prior to amendment, text read as follows: ‘‘In a hearing by the Secretary under this section, in which the moving party alleges that no material issues of fact are in dis- pute, the Secretary shall make an expedited determina- tion as to whether any such facts are in dispute and, if not, shall render a decision expeditiously.’’ Subsec. (b)(2). Pub. L. 108–173, § 932(a)(1)(B), added par. (2). Subsec. (b)(3). Pub. L. 108–173, § 933(a)(1), added par. (3). Subsec. (c)(3)(A). Pub. L. 108–173, § 933(d)(1)(A), sub- stituted ‘‘sufficient medical, legal, and other expertise (including knowledge of the program under this sub- chapter) and sufficient staffing’’ for ‘‘sufficient train- ing and expertise in medical science and legal mat- ters’’. Subsec. (c)(3)(B)(i). Pub. L. 108–173, § 933(b), inserted ‘‘(including the medical records of the individual in- volved)’’ after ‘‘clinical experience’’. Subsec. (c)(3)(C)(i). Pub. L. 108–173, § 940(a)(2), sub- stituted ‘‘60-day period’’ for ‘‘30-day period’’. Subsec. (c)(3)(D). Pub. L. 108–173, § 933(d)(2)(A), amend- ed heading and text of subpar. (D) generally, sub- stituting provisions directing that subsec. (g) require- ments be met for provisions prohibiting a physician or health care professional from reviewing a determina- tion where such physician or health care professional had been directly responsible for furnishing services or had had a significant financial interest in the institu- tion, organization, or agency which provided the serv- ices. Subsec. (c)(3)(E). Pub. L. 108–173, § 933(c)(2), inserted ‘‘be written in a manner calculated to be understood by the individual entitled to benefits under part A or en- rolled under part B, or both, and shall include (to the extent appropriate)’’ after ‘‘in writing,’’ and ‘‘and a no- tification of the right to appeal such determination and instructions on how to initiate such appeal under this section’’ after ‘‘such decision,’’. Subsec. (c)(3)(I)(ii)(III). Pub. L. 108–173, § 948(b)(1)(A), substituted ‘‘determination’’ for ‘‘policy’’. Subsec. (c)(3)(I)(ii)(IV). Pub. L. 108–173, § 948(b)(1)(B), substituted ‘‘coverage determinations’’ for ‘‘medical re- view policies’’. Subsec. (c)(3)(J)(i). Pub. L. 108–173, § 933(c)(4), sub- stituted ‘‘submit’’ for ‘‘prepare’’ and struck out ‘‘with respect to a reconsideration to the Secretary for a hearing, including as necessary, explanations of issues involved in the decision and relevant policies’’ after ‘‘decision of the contractor’’. Subsec. (c)(3)(K). Pub. L. 108–173, § 933(d)(1)(B), added subpar. (K). Subsec. (c)(4). Pub. L. 108–173, § 933(d)(3), substituted ‘‘a sufficient number of qualified independent contrac- tors (but not fewer than 4 such contractors) to conduct reconsiderations consistent with the timeframes appli- cable under this subsection’’ for ‘‘not fewer than 12 qualified independent contractors under this sub- section’’. Subsec. (d). Pub. L. 108–173, § 933(c)(3)(A), inserted ‘‘; notice’’ after ‘‘Secretary’’ in heading. Subsec. (d)(4). Pub. L. 108–173, § 933(c)(3)(B), added par. (4). Subsec. (f)(2)(A)(i). Pub. L. 108–173, § 931(d), struck out ‘‘of the Social Security Administration’’ after ‘‘an ad- ministrative law judge’’ in introductory provisions. Subsec. (f)(4)(A)(iv). Pub. L. 108–173, § 948(c)(1), sub- stituted ‘‘clause (i), (ii), or (iii)’’ for ‘‘subclause (I), (II), or (III)’’. Subsec. (f)(4)(B). Pub. L. 108–173, § 948(c)(2), sub- stituted ‘‘subparagraph (A)(iv)’’ for ‘‘clause (i)(IV)’’ and ‘‘subparagraph (A)(iii)’’ for ‘‘clause (i)(III)’’. Subsec. (f)(4)(C). Pub. L. 108–173, § 948(c)(3), sub- stituted ‘‘subparagraph (A)’’ for ‘‘clause (i)’’ in two places, ‘‘clause (iv)’’ for ‘‘subclause (IV)’’, and ‘‘para- graph (1)(A)’’ for ‘‘subparagraph (A)’’. Subsec. (g). Pub. L. 108–173, § 933(d)(2)(B), added sub- sec. (g). Subsec. (h). Pub. L. 108–173, § 938(a), added subsec. (h). Subsec. (i). Pub. L. 108–173, § 940A(a), added subsec. (i). 2000—Pub. L. 106–554, § 1(a)(6) [title V, § 521(a)], amend- ed section generally, completely revising and expand- ing provisions relating to determinations with respect to benefits under part A or part B of this subchapter, changing the structure of the section from two subsecs. lettered (a) and (b) to five subsecs. lettered (a) to (e). Subsec. (f). Pub. L. 106–554, § 1(a)(6) [title V, § 522(a)], added subsec. (f). 1997—Subsec. (b)(2)(B). Pub. L. 105–33 inserted ‘‘(or $100 in the case of home health services)’’ after ‘‘$500’’. 1994—Subsec. (b)(1). Pub. L. 103–296 inserted ‘‘, except that, in so applying such sections and in applying sec- Page 3684 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff tion 405(l) of this title thereto, any reference therein to the Commissioner of Social Security or the Social Se- curity Administration shall be considered a reference to the Secretary or the Department of Health and Human Services, respectively’’ after ‘‘section 405(g) of this title’’ in closing provisions. 1987—Subsec. (a). Pub. L. 100–203, § 4085(i)(18), inserted ‘‘or a claim for benefits with respect to home health services under part B of this subchapter’’ before ‘‘shall’’. Subsec. (b)(2). Pub. L. 100–203, § 4085(i)(19), inserted ‘‘and (1)(D)’’ after ‘‘paragraph (1)(C)’’ in two places. Subsec. (b)(3)(B). Pub. L. 100–203, § 4082(a), substituted ‘‘section 553’’ for ‘‘chapter 5’’. Subsec. (b)(5). Pub. L. 100–203, § 4082(b), added par. (5). Subsec. (c). Pub. L. 100–93 struck out subsec. (c) which read as follows: ‘‘Any institution or agency dis- satisfied with any determination by the Secretary that it is not a provider of services, or with any determina- tion described in section 1395cc(b)(2) of this title, shall be entitled to a hearing thereon by the Secretary (after reasonable notice and opportunity for hearing) to the same extent as is provided in section 405(b) of this title, and to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.’’ 1986—Subsec. (a). Pub. L. 99–509, § 9341(a)(1)(A), in- serted ‘‘or part B’’ after ‘‘amount of benefits under part A’’. Pub. L. 99–509, § 9313(b)(1)(A), inserted ‘‘and any other determination with respect to a claim for benefits under part A of this subchapter’’ before ‘‘shall’’. Subsec. (b)(1). Pub. L. 99–509, § 9313(a)(1), in con- cluding provisions, inserted at end ‘‘Sections 406(a), 1302, and 1395hh of this title shall not be construed as authorizing the Secretary to prohibit an individual from being represented under this subsection by a per- son that furnishes or supplies the individual, directly or indirectly, with services or items solely on the basis that the person furnishes or supplies the individual with such a service or item. Any person that furnishes services or items to an individual may not represent an individual under this subsection with respect to the issue described in section 1395pp(a)(2) of this title un- less the person has waived any rights for payment from the beneficiary with respect to the services or items in- volved in the appeal. If a person furnishes services or items to an individual and represents the individual under this subsection, the person may not impose any financial liability on such individual in connection with such representation.’’ Subsec. (b)(1)(C). Pub. L. 99–509, § 9341(a)(1)(B), in- serted ‘‘or part B’’. Subsec. (b)(1)(D). Pub. L. 99–509, § 9313(b)(1)(B), added subpar. (D). Subsec. (b)(2). Pub. L. 99–509, § 9341(a)(1)(C), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘Notwithstanding the provisions of subpara- graph (C) of paragraph (1) of this subsection, a hearing shall not be available to an individual by reason of such subparagraph (C) if the amount in controversy is less than $100; nor shall judicial review be available to an individual by reason of such subparagraph (C) if the amount in controversy is less than $1,000.’’ Subsec. (b)(3), (4). Pub. L. 99–509, § 9341(a)(1)(D), added pars. (3) and (4). 1984—Subsec. (b)(1)(B). Pub. L. 98–369 struck out the comma before ‘‘or section 1395i–2’’ and struck out ‘‘, or section 1819’’ after ‘‘section 1395i–2 of this title’’. 1972—Subsec. (b). Pub. L. 92–603 redesignated existing provisions as par. (1), generally amended conditions under which a dissatisfied individual shall be entitled to a hearing by Secretary and to judicial review of final decision of Secretary after such hearing, and added par. (2). Statutory Notes and Related Subsidiaries CHANGE OF NAME References to Medicare+Choice deemed to refer to Medicare Advantage or MA, subject to an appropriate transition provided by the Secretary of Health and Human Services in the use of those terms, see section 201 of Pub. L. 108–173, set out as a note under section 1395w–21 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Amendment by Pub. L. 112–40 applicable to contracts entered into or renewed on or after Jan. 1, 2012, see sec- tion 261(e) of Pub. L. 112–40, set out as a note under sec- tion 1320c of this title. EFFECTIVE DATE OF 2003 AMENDMENT Amendment by section 932(a) of Pub. L. 108–173 appli- cable to appeals filed on or after Oct. 1, 2004, see section 932(d) of Pub. L. 108–173, set out as a note under section 1395i–3 of this title. Pub. L. 108–173, title IX, § 933(a)(2), Dec. 8, 2003, 117 Stat. 2402, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect on October 1, 2004.’’ Pub. L. 108–173, title IX, § 933(d)(4), Dec. 8, 2003, 117 Stat. 2406, provided that: ‘‘The amendments made by paragraphs (1) and (2) [amending this section] shall be effective as if included in the enactment of the respec- tive provisions of subtitle C of title V of BIPA [the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, H.R. 5661, as enacted by sec- tion 1(a)(6) of Public Law 106–554] (114 Stat. 2763A–534).’’ Pub. L. 108–173, title IX, § 938(b), Dec. 8, 2003, 117 Stat. 2415, provided that: ‘‘(1) EFFECTIVE DATE.—The Secretary [of Health and Human Services] shall establish the prior determina- tion process under the amendment made by subsection (a) [amending this section] in such a manner as to pro- vide for the acceptance of requests for determinations under such process filed not later than 18 months after the date of the enactment of this Act [Dec. 8, 2003]. ‘‘(2) SUNSET.—Such prior determination process shall not apply to requests filed after the end of the 5-year period beginning on the first date on which requests for determinations under such process are accepted. ‘‘(3) TRANSITION.—During the period in which the amendment made by subsection (a) [amending this sec- tion] has become effective but contracts are not pro- vided under section 1874A of the Social Security Act [42 U.S.C. 1395kk–1] with medicare administrative contrac- tors, any reference in section 1869(g) [probably should be 1869(h)] of such Act [42 U.S.C. 1395ff(h)] (as added by such amendment) to such a contractor is deemed a ref- erence to a fiscal intermediary or carrier with an agreement under section 1816, or contract under section 1842, respectively, of such Act [42 U.S.C. 1395h, 1395u]. ‘‘(4) LIMITATION ON APPLICATION TO SGR.—For purposes of applying section 1848(f)(2)(D) of the Social Security Act (42 U.S.C. 1395w–4(f)(2)(D)), the amendment made by subsection (a) [amending this section] shall not be con- sidered to be a change in law or regulation.’’ Amendment by section 948(b)(1), (c) of Pub. L. 108–173 effective, except as otherwise provided, as if included in the enactment of BIPA [the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, H.R. 5661, as enacted by section 1(a)(6) of Public Law 106–554], see section 948(e) of Pub. L. 108–173, set out as a note under section 1314 of this title. EFFECTIVE DATE OF 2000 AMENDMENT Amendment by section § 1(a)(6) [title V, § 521(a)] of Pub. L. 106–554 applicable with respect to initial deter- minations made on or after Oct. 1, 2002, see section 1(a)(6) [title V, § 521(d)] of Pub. L. 106–554, set out as a note under section 1320c–3 of this title. Amendment by section 1(a)(6) [title V, § 522(a)] of Pub. L. 106–554 applicable with respect to a review of any na- tional or local coverage determination filed, a request to make such a determination made, and a national coverage determination made, on or after Oct. 1, 2001, see section 1(a)(6) [title V, § 522(d)] of Pub. L. 106–554, set out as a note under section 1314 of this title. Page 3685 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ff EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–33 applicable to services furnished on or after Jan. 1, 1998, and for purposes of applying such amendment, any home health spell of ill- ness that began, but did not end, before such date, to be considered to have begun as of such date, see section 4611(f) of Pub. L. 105–33, set out as a note under section 1395d of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Pub. L. 103–296, set out as a note under section 401 of this title. EFFECTIVE DATE OF 1987 AMENDMENT Pub. L. 100–203, title IV, § 4082(e)(1), (2), Dec. 22, 1987, 101 Stat. 1330–128, provided that: ‘‘(1) The amendment made by subsection (a) [amend- ing this section] shall take effect on the date of the en- actment of this Act [Dec. 22, 1987]. ‘‘(2) The amendment made by subsection (b) [amend- ing this section] shall apply to requests for hearings filed after the end of the 60-day period beginning on the date of the enactment of this Act.’’ Amendment by Pub. L. 100–93 effective at end of four- teen-day period beginning Aug. 18, 1987, and inappli- cable to administrative proceedings commenced before end of such period, see section 15(a) of Pub. L. 100–93, set out as a note under section 1320a–7 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–509, title IX, § 9313(b)(2), Oct. 21, 1986, 100 Stat. 2003, provided that: ‘‘The amendments made by this subsection [amending this section] take effect on the date of the enactment of this Act [Oct. 21, 1986].’’ Pub. L. 99–509, title IX, § 9341(b), Oct. 21, 1986, 100 Stat. 2038, provided that: ‘‘The amendments made by sub- section (a) [amending this section and sections 1395u and 1395pp of this title] shall apply to items and serv- ices furnished on or after January 1, 1987.’’ EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–369 effective July 18, 1984, but not to be construed as changing or affecting any right, liability, status, or interpretation which existed (under the provisions of law involved) before that date, see section 2354(e)(1) of Pub. L. 98–369, set out as a note under section 1320a–1 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Pub. L. 92–603, title II, § 299O(b), Oct. 30, 1972, 86 Stat. 1465, provided that: ‘‘(1) The provisions of subparagraphs (A) and (B) of section 1869(b)(1) of the Social Security Act [42 U.S.C. 1395ff(b)(1)(A), (B)], as amended by subsection (a) of this section, shall be effective on the date of enactment of this Act [Oct. 30, 1972]. ‘‘(2) The provisions of paragraph (2) and subparagraph (C) of paragraph (1) of section 1869(b) of the Social Se- curity Act [42 U.S.C. 1395ff(b)(2), (b)(1)(C)], as amended by subsection (a) of this section, shall be effective with respect to any claims under part A of title XVIII of such Act [42 U.S.C. 1395c et seq.], filed— ‘‘(A) in or after the month in which this Act is en- acted [Oct. 1972], or ‘‘(B) before the month in which this Act is enacted [Oct. 1972], but only if a civil action with respect to a final decision of the Secretary of Health, Edu- cation, and Welfare on such claim has not been com- menced under such section 1869(b) [42 U.S.C. 1395ff(b)] before such month.’’ TRANSFER OF RESPONSIBILITY FOR MEDICARE APPEALS Pub. L. 108–173, title IX, § 931(a)–(c), Dec. 8, 2003, 117 Stat. 2396–2398, provided that: ‘‘(a) TRANSITION PLAN.— ‘‘(1) IN GENERAL.—Not later than April 1, 2004, the Commissioner of Social Security and the Secretary [of Health and Human Services] shall develop and transmit to Congress and the Comptroller General of the United States a plan under which the functions of administrative law judges responsible for hearing cases under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] (and related provisions in title XI of such Act [42 U.S.C. 1301 et seq.]) are transferred from the responsibility of the Commissioner and the Social Security Administration to the Secretary and the Department of Health and Human Services. ‘‘(2) CONTENTS.—The plan shall include information on the following: ‘‘(A) WORKLOAD.—The number of such administra- tive law judges and support staff required now and in the future to hear and decide such cases in a timely manner, taking into account the current and anticipated claims volume, appeals, number of beneficiaries, and statutory changes. ‘‘(B) COST PROJECTIONS AND FINANCING.—Funding levels required for fiscal year 2005 and subsequent fiscal years to carry out the functions transferred under the plan. ‘‘(C) TRANSITION TIMETABLE.—A timetable for the transition. ‘‘(D) REGULATIONS.—The establishment of specific regulations to govern the appeals process. ‘‘(E) CASE TRACKING.—The development of a uni- fied case tracking system that will facilitate the maintenance and transfer of case specific data across both the fee-for-service and managed care components of the medicare program. ‘‘(F) FEASIBILITY OF PRECEDENTIAL AUTHORITY.— The feasibility of developing a process to give deci- sions of the Departmental Appeals Board in the De- partment of Health and Human Services addressing broad legal issues binding, precedential authority. ‘‘(G) ACCESS TO ADMINISTRATIVE LAW JUDGES.—The feasibility of— ‘‘(i) filing appeals with administrative law judges electronically; and ‘‘(ii) conducting hearings using tele- or video- conference technologies. ‘‘(H) INDEPENDENCE OF ADMINISTRATIVE LAW JUDGES.—The steps that should be taken to ensure the independence of administrative law judges con- sistent with the requirements of subsection (b)(2). ‘‘(I) GEOGRAPHIC DISTRIBUTION.—The steps that should be taken to provide for an appropriate geo- graphic distribution of administrative law judges throughout the United States to carry out sub- section (b)(3). ‘‘(J) HIRING.—The steps that should be taken to hire administrative law judges (and support staff) to carry out subsection (b)(4). ‘‘(K) PERFORMANCE STANDARDS.—The appropriate- ness of establishing performance standards for ad- ministrative law judges with respect to timelines for decisions in cases under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] taking into ac- count requirements under subsection (b)(2) for the independence of such judges and consistent with the applicable provisions of title 5, United States Code[,] relating to impartiality. ‘‘(L) SHARED RESOURCES.—The steps that should be taken to carry out subsection (b)(6) (relating to the arrangements with the Commissioner of Social Security to share office space, support staff, and other resources, with appropriate reimbursement). ‘‘(M) TRAINING.—The training that should be pro- vided to administrative law judges with respect to laws and regulations under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. ‘‘(3) ADDITIONAL INFORMATION.—The plan may also include recommendations for further congressional action, including modifications to the requirements and deadlines established under section 1869 of the Social Security Act (42 U.S.C. 1395ff) (as amended by this Act). ‘‘(4) GAO EVALUATION.—The Comptroller General of the United States shall evaluate the plan and, not Page 3686 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395gg later than the date that is 6 months after the date on which the plan is received by the Comptroller Gen- eral, shall submit to Congress a report on such eval- uation. ‘‘(b) TRANSFER OF ADJUDICATION AUTHORITY.— ‘‘(1) IN GENERAL.—Not earlier than July 1, 2005, and not later than October 1, 2005, the Commissioner of Social Security and the Secretary shall implement the transition plan under subsection (a) and transfer the administrative law judge functions described in such subsection from the Social Security Administra- tion to the Secretary. ‘‘(2) ASSURING INDEPENDENCE OF JUDGES.—The Sec- retary shall assure the independence of administra- tive law judges performing the administrative law judge functions transferred under paragraph (1) from the Centers for Medicare & Medicaid Services and its contractors. In order to assure such independence, the Secretary shall place such judges in an adminis- trative office that is organizationally and function- ally separate from such Centers. Such judges shall re- port to, and be under the general supervision of, the Secretary, but shall not report to, or be subject to su- pervision by, another officer of the Department of Health and Human Services. ‘‘(3) GEOGRAPHIC DISTRIBUTION.—The Secretary shall provide for an appropriate geographic distribution of administrative law judges performing the administra- tive law judge functions transferred under paragraph (1) throughout the United States to ensure timely ac- cess to such judges. ‘‘(4) HIRING AUTHORITY.—Subject to the amounts provided in advance in appropriations Acts, the Sec- retary shall have authority to hire administrative law judges to hear such cases, taking into consider- ation those judges with expertise in handling medi- care appeals and in a manner consistent with para- graph (3), and to hire support staff for such judges. ‘‘(5) FINANCING.—Amounts payable under law to the Commissioner for administrative law judges per- forming the administrative law judge functions transferred under paragraph (1) from the Federal Hos- pital Insurance Trust Fund and the Federal Supple- mentary Medical Insurance Trust Fund shall become payable to the Secretary for the functions so trans- ferred. ‘‘(6) SHARED RESOURCES.—The Secretary shall enter into such arrangements with the Commissioner as may be appropriate with respect to transferred func- tions of administrative law judges to share office space, support staff, and other resources, with appro- priate reimbursement from the Trust Funds described in paragraph (5). ‘‘(c) INCREASED FINANCIAL SUPPORT.—In addition to any amounts otherwise appropriated, to ensure timely action on appeals before administrative law judges and the Departmental Appeals Board consistent with sec- tion 1869 of the Social Security Act (42 U.S.C. 1395ff) (as amended by this Act), there are authorized to be appro- priated (in appropriate part from the Federal Hospital Insurance Trust Fund, established under section 1817 of the Social Security Act (42 U.S.C. 1395i), and the Fed- eral Supplementary Medical Insurance Trust Fund, es- tablished under section 1841 of such Act (42 U.S.C. 1395t)) to the Secretary such sums as are necessary for fiscal year 2005 and each subsequent fiscal year to— ‘‘(1) increase the number of administrative law judges (and their staffs) under subsection (b)(4); ‘‘(2) improve education and training opportunities for administrative law judges (and their staffs); and ‘‘(3) increase the staff of the Departmental Appeals Board.’’ TRANSITION Pub. L. 108–173, title IX, § 933(d)(5), Dec. 8, 2003, 117 Stat. 2406, provided that: ‘‘In applying section 1869(g) of the Social Security Act [42 U.S.C. 1395ff(g)] (as added by paragraph (2)), any reference to a medicare administra- tive contractor shall be deemed to include a reference to a fiscal intermediary under section 1816 of the Social Security Act (42 U.S.C. 1395h) and a carrier under sec- tion 1842 of such Act (42 U.S.C. 1395u).’’ PROCESS FOR CORRECTION OF MINOR ERRORS AND OMISSIONS WITHOUT PURSUING APPEALS PROCESS Pub. L. 108–173, title IX, § 937, Dec. 8, 2003, 117 Stat. 2412, provided that: ‘‘(a) CLAIMS.—The Secretary [of Health and Human Services] shall develop, in consultation with appro- priate medicare contractors (as defined in section 1889(g) of the Social Security Act [42 U.S.C. 1395zz(g)], as inserted by section 301(a)(1) [probably should be 921(f)(1)]) and representatives of providers of services and suppliers, a process whereby, in the case of minor errors or omissions (as defined by the Secretary) that are detected in the submission of claims under the pro- grams under title XVIII of such Act [42 U.S.C. 1395 et seq.], a provider of services or supplier is given an op- portunity to correct such an error or omission without the need to initiate an appeal. Such process shall in- clude the ability to resubmit corrected claims. ‘‘(b) DEADLINE.—Not later than 1 year after the date of the enactment of this Act [Dec. 8, 2003], the Sec- retary shall first develop the process under subsection (a).’’ STUDY OF AGGREGATION RULE FOR CLAIMS FOR SIMILAR PHYSICIANS’ SERVICES Pub. L. 101–508, title IV, § 4113, Nov. 5, 1990, 104 Stat. 1388–64, directed Secretary of Health and Human Serv- ices to carry out a study of the effects of permitting the aggregation of claims that involve common issues of law and fact furnished in the same carrier area to two or more individuals by two or more physicians within the same 12-month period for purposes of ap- peals provided for under subsec. (b)(2) of this section, and to report on the results of such study and any rec- ommendations to Congress by Dec. 31, 1992. MEDICARE HEARINGS AND APPEALS Pub. L. 100–203, title IV, § 4037, Dec. 22, 1987, 101 Stat. 1330–80, provided that: ‘‘(a) MAINTAINING CURRENT SYSTEM FOR HEARINGS AND APPEALS.—Any hearing conducted under section 1869(b)(1) of the Social Security Act [42 U.S.C. 1395ff(b)(1)] prior to the earliest of the date on which the Secretary of Health and Human Services submits the report required to be submitted by the Secretary under subsection (b)(1) or September 1 shall be con- ducted by Administrative Law Judges of the Office of Hearings and Appeals of the Social Security Adminis- tration in the same manner as are hearings conducted under section 205(b)(1) of such Act [42 U.S.C. 405(b)(1)]. ‘‘(b) STUDY AND REPORT ON USE OF TELEPHONE HEAR- INGS.— ‘‘(1) The Secretary of Health and Human Services and the Comptroller General of the United States shall each conduct a study on holding hearings under section 1869(b)(1) of the Social Security Act [42 U.S.C. 1395ff(b)(1)] by telephone and shall each report the re- sults of the study not later than 6 months after the date of enactment of this Act [Dec. 22, 1987]. ‘‘(2) The studies under paragraph (1) shall focus on whether telephone hearings allow for a full and fair evidentiary hearing, in general, or with respect to any particular category of claims and shall examine the possible improvements to the hearing process (such as cost-effectiveness, convenience to the claim- ant, and reduction in time under the process) result- ing from the use of such hearings as compared to the adoption of other changes to the process (such as ex- pansions in staff and resources).’’ § 1395gg. Overpayment on behalf of individuals and settlement of claims for benefits on be- half of deceased individuals (a) Payments to providers of services or other person regarded as payment to individuals Any payment under this subchapter to any provider of services or other person with respect