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 123STA T .480PUBLIC LA W 111 –5—FE B.1 7, 200 9‘ ‘ (i ii )REPORTING ON M E ASU RES USING E H R .—Sub-ject t os ub par a g rap h ( B )(ii) a nd using such certi f ied EH R techno l og y, the eligible hospital sub m its informa- tion for such period, in a form and manner specified by the Secretary, on such clinical q uality measures and such other measures as selected by the Secretary under subparagraph (B)(i). T he Secretary shall see k to impro v e the use of electronic health records and health care quality over time by requiring more stringent measures of meaningful use selected under this paragraph. ‘‘(B) REPORTING ON MEASURES.— ‘‘(i) SE L E C TION.—The Secretary shall select meas- ures for purposes of subparagraph ( A )(iii) but only consistent w ith the following ‘‘( I ) The Secretary shall provide preference to clinical quality measures that have been selected for purposes of applying subsection (b)( 3 )(B)(viii) or that have been endorsed by the entity with a contract with the Secretary under section 1890 (a). ‘‘(II) P rior to any measure (other than a clin- ical quality measure that has been selected for purposes of applying subsection (b)(3)(B)(viii)) being selected under this subparagraph, the Sec- retary shall publish in the F ederal Register such measure and provide for a period of public com- ment on such measure. ‘‘(ii) L IMITATIONS.—The Secretary may not require the electronic reporting of information on clinical quality measures under subparagraph (A)(iii) unless the Secretary has the capacity to accept the informa- tion electronically, which may be on a pilot basis. ‘‘(iii) C OOR D INATION O F REPORTING OF INFORMA- TION.—In selecting such measures, and in establishing the form and manner for reporting measures under subparagraph (A)(iii), the Secretary shall seek to avoid redundant or duplicative reporting with reporting otherwise required, including reporting under sub- section (b)(3)(B)(viii). ‘‘(C) D EMONSTRATION OF MEANINGFUL USE OF CERTIFIED EHR TECHNOLOG Y AND INFORMATION E X CHANGE.— ‘‘(i) IN GENERAL.—An eligible hospital may satisfy the demonstration requirement of clauses (i) and (ii) of subparagraph (A) through means specified by the Secretary, which may include— ‘‘(I) an attestation ‘‘(II) the submission of claims with appropriate coding (such as a code indicating that inpatient care was documented using certified EHR tech- nology); ‘‘(III) a survey response; ‘‘(I V ) reporting under subparagraph (A)(iii); and ‘‘(V) other means specified by the Secretary. Fed e ralR e gist er ,pub li c ati on.


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 123STA T .48 1 PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9‘ ‘ (i i )USEOFPARTD DATA .—Notw it hs t and in g s ec- tions 1860D– 1 5 (d)( 2 )( B ) and 1860D–15( f )(2) , the S ec- r etar ym ay u se data regarding drug c l aims su b mitted for p urposes of section 1860D–15 that are necessary for purposes of subparagraph ( A ). ‘‘( 4 ) APP LIC ATIO N .— ‘‘(A) L I M ITATIONS ON RE V IE W .— T here shall be no administrati v eor j udicial review under section 186 9, sec- tion 18 7 8, or otherwise, of— ‘‘(i) the methodology and standards for determining payment amounts under this subsection and payment adjustments under subsection (b)( 3 )(B)(i x ), including selection of periods under paragraph (2) for deter- mining, and ma k ing estimates or using proxies of, discharges under paragraph (2)( C ) and inpatient-bed- days, hospital charges, charity charges, and M edicare share under paragraph (2)(D) ‘‘(ii) the methodology and standards for deter- mining a meaningful EHR user under paragraph (3), including selection of measures under paragraph (3)(B), specification of the means of demonstrating meaningful EHR use under paragraph (3)(C), and the hardship exception under subsection (b)(3)(B)(ix)( I I); and ‘‘(iii) the specification of EHR reporting periods under paragraph (6)(B) and the selection of the form of payment under paragraph (2)( F ). ‘‘(B) P OSTIN G ON WE B SITE.—The Secretary shall post on the Internet website of the Centers for Medicare & Medicaid Services, in an easily understandable format, a list of the names of the eligible hospitals that are meaning- ful EHR users under this subsection or subsection (b)(3)(B)(ix) (and a list of the names of critical access hos- pitals to which paragraph (3) or (4) of section 1814(l) applies), and other relevant data as determined appropriate by the Secretary. The Secretary shall ensure that an eligible hospital (or critical access hospital) has the oppor- tunity to review the other relevant data that are to be made public with respect to the hospital (or critical access hospital) prior to such data being made public. ‘‘(5) CERTIFIED E H R TECHNOLOG Y DEFINED.—The term ‘cer- tified EHR technology ’ has the meaning given such term in section 1848(o)(4). ‘‘(6) DEFINITIONS.—For purposes of this subsection ‘‘(A) EHR REPORTING PERIOD.—The term ‘EHR reporting period’ means, with respect to a payment year, any period (or periods) as specified by the Secretary. ‘‘(B) ELIGIBLE HOSPITAL.—The term ‘eligible hospital’ means a subsection (d) hospital.’’. (2) CRITICAL ACCESS HOSPITALS.—Section 1814(l) of the Social Security Act (42 U.S.C. 1395f(l)) is amended— (A) in paragraph (1), by striking ‘‘paragraph (2)’’ and inserting ‘‘the subse q uent paragraphs of this subsection’’; and (B) by adding at the end the following new paragraph: ‘‘(3)(A) The following rules shall apply in determining payment and reasonable costs under paragraph (1) for costs described in subparagraph (C) for a critical access hospital that would be a Regulations.Ap pli c a b ilit y .

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 123STA T .48 2 PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9meani n gfulEHR u s e r( as wo ul db ede t ermined under p aragrap h ( 3) of se c tion 18 8 6 (n)) for an EHR reporting period for a cost reporting period beginning during a pa y ment year if such critical access hospital was treated as an eligible hospital under such section

‘(i) T he S ecretary shall compute reasonable costs by e x pensing such costs in a single payment year and not depre - ciating such costs o v er a period of years (and shall include as costs with respect to cost reporting periods beginning during a payment year costs from previous cost reporting periods to the extent they have not been fully depreciated as of the period involved) . ‘‘(ii) There shall be substituted for the M edicare share that would otherwise be applied under paragraph (1) a percent (not to exceed 1 0 0 percent) e q ual to the sum of — ‘‘( I ) the Medicare share (as would be specified under paragraph ( 2 )( D ) of section 1886(n)) for such critical access hospital if such critical access hospital was treated as an eligible hospital under such section and ‘‘(II) 20 percentage points. ‘‘( B ) The payment under this paragraph with respect to a crit- ical access hospital shall be paid through a prompt interim payment (sub j ect to reconciliation) after submission and review of such information (as specified by the Secretary) necessary to ma k e such payment , including information necessary to apply this paragraph. In no case may payment under this paragraph be made with respect to a cost reporting period beginning during a payment year after 201 5 and in no case may a critical access hospital receive payment under this paragraph with respect to more than 4 consecutive payment years. ‘‘( C ) The costs described in this subparagraph are costs for the purchase of certified EHR technology to which purchase depre- ciation (excluding interest) would apply if payment was made under paragraph (1) and not under this paragraph. ‘‘(D) F or purposes of this paragraph, paragraph (4), and para- graph (5), the terms ‘certified EHR technology ’, ‘eligible hospital’, ‘EHR reporting period’, and ‘payment year’ have the meanings given such terms in sections 1886(n).’’. (b) I NCE N TIV EM ARK ET BA S KET ADJU ST M ENT.— (1) IN G ENERA L .—Section 1886(b)(3)(B) of the Social Secu- rity Act (42 U .S.C. 13 9 5ww(b)(3)(B)) is amended— (A) in clause (viii)(I), by inserting ‘‘(or, beginning with fiscal year 2015, by one-quarter)’’ after ‘‘2.0 percentage points’’; and (B) by adding at the end the following new clause: ‘‘(ix)(I) For purposes of clause (i) for fiscal year 2015 and each subsequent fiscal year, in the case of an eligible hospital (as defined in subsection (n)(6)(A)) that is not a meaningful EHR user (as defined in subsection (n)(3)) for an EHR reporting period for such fiscal year, three-quarters of the applicable percentage increase otherwise applicable under clause (i) for such fiscal year shall be reduced by 33 1⁄3 percent for fiscal year 2015, 66 2 ⁄3 percent for fiscal year 2016, and 100 percent for fiscal year 201 7 and each subsequent fiscal year. Such reduction shall apply only with respect to the fiscal year involved and the Secretary shall not take into account such reduction in computing the applicable percentage increase under clause (i) for a subsequent fiscal year. Ap p licab ili ty.


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 123STA T .48 3 PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9‘ ‘ (I I )TheS e cr e ta r ym ay ,on aca s e -b y-case bas i s,e x em p ta s u bsection ( d ) hospita lf rom the application of subclause (I) w ith respect to a fiscal year if the Secretary determines, sub j ect to annual renewal, that re q uirin g such hospital to be a meaningful EHR user during such fiscal year would result in a significant hardship, such as in the case of a hospital in a rural area without sufficient Internet access . In no case may a hospital be granted an exemption under this subclause for more than 5 years. ‘‘(III) F or fiscal year 201 5 and each subsequent fiscal year, a State in which hospitals are paid for ser v ices under section 1 8 1 4 (b)( 3 ) shall adjust the payments to each subsection (d) hospital in the State that is not a meaningful EHR user (as defined in subsection (n)(3)) in a manner that is designed to result in an aggregate reduction in payments to hospitals in the State that is equivalent to the aggregate reduction that would have occurred if payments had been reduced to each subsection (d) hospital in the State in a manner comparable to the reduction under the previous provisions of this clause. The State shall report to the Secretary the methodology it will use to ma k e the payment adjust- ment under the previous sentence. ‘‘(I V ) For purposes of this clause, the term ‘EHR reporting period ’ means, with respect to a fiscal year, any period (or periods) as specified by the Secretary.’’. (2) CRIT I CAL ACC ES S HO S P ITALS. — Section 1814(l) of the Social Security A ct (42 U .S.C. 13 9 5f(l)), as amended by sub- section (a)(2), is further amended by adding at the end the following new paragraphs ‘‘(4)(A) Subject to subparagraph (C), for cost reporting periods beginning in fiscal year 2015 or a subsequent fiscal year, in the case of a critical access hospital that is not a meaningful EHR user (as would be determined under paragraph (3) of section 188 6 (n) if such critical access hospital was treated as an eligible hospital under such section) for an EHR reporting period with respect to such fiscal year, paragraph (1) shall be applied by substituting the applicable percent under subparagraph ( B ) for the percent described in such paragraph (1). ‘‘(B) The percent described in this subparagraph is— ‘‘(i) for fiscal year 2015, 100.66 percent ‘‘(ii) for fiscal year 2016, 100.33 percent; and ‘‘(iii) for fiscal year 201 7 and each subsequent fiscal year, 100 percent. ‘‘(C) The provisions of subclause (II) of section 1886(b)(3)(B)(ix) shall apply with respect to subparagraph (A) for a critical access hospital with respect to a cost reporting period beginning in a fiscal year in the same manner as such subclause applies with respect to subclause (I) of such section for a subsection (d) hospital with respect to such fiscal year. ‘‘(5) There shall be no administrative or judicial review under section 1869, section 1878, or otherwise, of— ‘‘(A) the methodology and standards for determining the amount of payment and reasonable cost under paragraph (3) and payment adjustments under paragraph (4), including selec- tion of periods under section 1886(n)(2) for determining, and making estimates or using proxies of, inpatient-bed-days, hos- pital charges, charity charges, and M edicare share under subparagraph ( D ) of section 1886(n)(2); Ap p licab ili ty. Applicability. Re p or t s .


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 123STA T .48 4 PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9‘ ‘ (B)them eth od o l o gyan d s tanda r ds f or determ i ning a meaningf u l EHR user under se c tion 18 8 6 (n)( 3 )as w ould a p ply if the hospital was treated as an eligi b le hospital under section 1886(n) , and the hardship e x ception under paragraph ( 4 )( C ) ‘‘(C) the specification of EHR reporting periods under sec - tion 1886(n)(6)(B) as applied under paragraphs (3) and (4); and ‘‘( D ) the identification of costs for purposes of paragraph (3)(C) .’ ’. (c) AP P LICAT I ON TOC ER TAIN M A-A F FILIATE D ELI G I B LE HO S - PITALS. —S ection 18 5 3 of the Social Security Act (4 2U .S.C. 13 9 5w – 23), as amended by section 41 0 1(c), is further amended by adding at the end the following new subsection ‘‘(m) APPLICATION OF ELIGIBLE HOSPITAL I NCENTI V ES FOR CER- TAIN MA O RGANI Z ATIONS FOR ADOPTION AND MEANINGF U L USE OF CERTIFIED EHR T EC H NOLOG Y .— ‘‘(1) APPLICATION.—Sub j ect to paragraphs (3) and (4), in the case of a q ualifying MA organi z ation, the pro v isions of sections 1886(n) and 1886(b)(3)(B)(ix) shall apply with respect to eligible hospitals described in paragraph (2) of the organiza- tion which the organization attests under subsection (l)(6) to be meaningful EHR users in a similar manner as they apply to eligible hospitals under such sections. Incentive payments under paragraph (3) shall be made to and payment adjustments under paragraph (4) shall apply to such qualifying organiza- tions. ‘‘(2) ELIGIBLE HOSPITAL DESCRIBED.— W ith respect to a qualifying MA organization, an eligible hospital described in this paragraph is an eligible hospital (as defined in section 1886(n)(6)(A)) that is under common corporate governance with such organization and serves individuals enrolled under an MA plan offered by such organization. ‘‘(3) ELIGIBLE HOSPITAL INCENTIVE PAY M ENTS.— ‘‘(A) IN GENERAL.—In applying section 1886(n)(2) under paragraph (1), instead of the additional payment amount under section 1886(n)(2), there shall be substituted an amount determined by the Secretary to be similar to the estimated amount in the aggregate that would be payable if payment for services furnished by such hospitals was payable under part A instead of this part. In implementing the previous sentence, the Secretary— ‘‘(i) shall, insofar as data to determine the dis- charge related amount under section 1886(n)(2)(C) for an eligible hospital are not available to the Secretary, use such alternative data and methodology to estimate such discharge related amount as the Secretary deter- mines appropriate; and ‘‘(ii) shall, insofar as data to determine the medi- care share described in section 1886(n)(2)(D) for an eligible hospital are not available to the Secretary, use such alternative data and methodology to estimate such share, which data and methodology may include use of the inpatient-bed-days (or discharges) with respect to an eligible hospital during the appropriate period which are attributable to both individuals for


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 123STA T .485PUBLIC LA W 111 – 5 —FE B.1 7, 2 0 0 9whompay m ent may b ema d e u nde r part A or i ndi v id - ua ls enrolled in an M A plan under a Medi c are Advan- ta g e organi z ation under this part as a proportion o f the estimated total number of patient-bed-days ( or dis- charges ) with respect to such hospital during such period .‘ ‘( B )A VOID I NG D UPL I CAT ION O F PA YME NT S . — ‘‘(i) I N GENE R AL.—In the case of a hospital that for a payment year is an eligible hospital described in paragraph ( 2 ) and for which at least one-third of their discharges (or bed-days) of Medicare patients for the year are covered under part A , payment for the payment year shall be made only under section 18 8 6 (n) and not under this subsection. ‘‘(ii) MET H ODS.—In the case of a hospital that is an eligible hospital described in paragraph (2) and also is eligible for an incentive payment under section 1886(n) but is not described in clause (i) for the same payment period, the S ecretary shall develop a process— ‘‘(I) to ensure that duplicate payments are not made with respect to an eligible hospital both under this subsection and under section 1886(n) and ‘‘(II) to collect data from Medicare Advantage organizations to ensure against such duplicate pay- ments. ‘‘( 4 ) P AYMENT AD J USTMENT.— ‘‘(A) Sub j ect to paragraph ( 3 ),inthecaseofa q ualifying MA organization (as defined in section 18 5 3(l)(5)), if, according to the attestation of the organization submitted under subsection (l)(6) for an applicable period, one or more eligible hospitals (as defined in section 1886(n)(6)(A)) that are under common corporate governance with such organization and that serve individuals enrolled under a plan offered by such organization are not meaningful EHR users (as defined in section 1886(n)(3)) with respect to a period, the payment amount payable under this section for such organization for such period shall be the percent specified in subparagraph (B) for such period of the pay- ment amount otherwise provided under this section for such period. ‘‘(B) SPECIFIED PERCENT.— T he percent specified under this subparagraph for a year is 1 0 0 percent minus a number of percentage points equal to the product of— ‘‘(i) the number of the percentage point reduction effected under section 1886(b)(3)(B)(i x )(I) for the period; and ‘‘(ii) the Medicare hospital expenditure proportion specified in subparagraph ( C ) for the year. ‘‘(C) MEDICARE HOSPITAL E X PENDITURE PROPORTION.— The Medicare hospital expenditure proportion under this subparagraph for a year is the Secretary ’ s estimate of the proportion, of the expenditures under parts A and B that are not attributable to this part, that are attrib- utable to expenditures for inpatient hospital services.


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 123STA T .486PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9‘ ‘ (D)AP P LICAT I ON O F PA YME NTA DJUS TMENT .—Inthecas ethata qu a lify in gM A or gani z ation attests that not all eligi b le hos p itals are m eaningful EHR users w ith respect to an applicable perio d, the S ecretary shall apply the payment ad j ustment under this paragraph based on a methodology specified by the Secretary, ta k ing into account the proportion of such eligible hospitals, or dis - charges from such hospitals, that are not meaningful EHR users for such period. ‘‘( 5 ) P OSTIN G ON W E B SITE.— T he Secretary shall post on the Internet website of the C enters for Medicare & Medicaid Ser v ices, in an easily understandable format— ‘‘(A) a list of the names, business addresses, and busi- ness phone numbers of each qualifying MA organization receiving an incentive payment under this subsection for eligible hospitals described in paragraph ( 2 ) and ‘‘( B ) a list of the names of the eligible hospitals for which such incentive payment is based. ‘‘( 6 ) L IMITATIONS ON R E V IEW.—There shall be no adminis- trative or judicial review under section 18 6 9, section 18 7 8, or otherwise, of— ‘‘(A) the methodology and standards for determining payment amounts and payment adjustments under this subsection, including avoiding duplication of payments under paragraph ( 3 )(B); ‘‘(B) the methodology and standards for determining eligible hospitals under paragraph (2); and ‘‘(C) the methodology and standards for determining a meaningful EHR user under section 1886(n)(3), including specification of the means of demonstrating meaningful EHR use under subparagraph (C) of such section and selec- tion of measures under subparagraph (B) of such section. ’ ’. (d) CONFORMING AMENDMENTS.— (1) Section 181 4 (b) of the Social Security Act (42 U .S.C. 1395f(b)) is amended— (A) in paragraph (3), in the matter preceding subpara- graph (A), by inserting ‘‘, subject to section 1886(d)(3)(B)(i x )(III),’’ after ‘‘then’’; and (B) by adding at the end the following ‘‘ F or purposes of applying paragraph (3), there shall be taken into account incentive payments, and payment adjustments under sub- section (b)(3)(B)(ix) or (n) of section 1886.’’. (2) Section 1851(i)(1) of the Social Security Act (42 U.S.C. 1395w – 21(i)(1)) is amended by striking ‘‘and 1886(h)(3)(D)’’ and inserting ‘‘1886(h)(3)(D), and 1853(m)’’. (3) Section 1853 of the Social Security Act (42 U.S.C. 1395w–23), as amended by section 41 0 1(d), is amended— (A) in subsection (c)— (i) in paragraph (1)(D)(i), by striking ‘‘1848(o)’’ and inserting ‘‘, 1848(o), and 1886(n)’’; and (ii) in paragraph (6)(A), by inserting ‘‘and sub- sections (b)(3)(B)(ix) and (n) of section 1886’’ after ‘‘sec- tion 1848’’; and (B) in subsection (f), by inserting ‘‘and subsection (m)’’ after ‘‘under subsection (l)’’.


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 123STA T .487PUBLIC LA W 111 –5—FE B. 17 , 2 0 0 9SEC.4103 . TR E A T M E N T OFP A Y MENTS AN D SA VI N G S IMP L EMENTA - TION F U NDING. (a)PREMIU M HOLD H A RMLE S S .— ( 1 ) ING ENERAL.— Section 1 839 (a)(1) o f t h e Socia l Sec ur it yA ct( 42U .S. C . 139 5 r(a)(1)) i s a m en d ed b y addin g at the end the follo w ing

‘In a p plying this paragraph there shall not be ta k en into account additional payments under section 1848(o) and section 1853(l)(3) and the G o v ernment contribution under section 1844(a)(3). ’ ’. (2) PA Y MEN T .—Section 1844(a) of such Act (42 U.S.C. 1395w(a)) is amended— (A) in paragraph (2) , by striking the period at the end and inserting ‘‘ plus’’; and ( B ) by adding at the end the following new paragraph: ‘‘(3) a Government contribution e q ual to the amount of payment incentives payable under sections 1848(o) and 1853(l)(3).’’. (b) M EDI C ARE IM P RO V EMENT F UND.—Section 1898 of the Social Security Act (42 U.S.C. 1395iii), as added by section 70 02(a) of the Supplemental Appropriations Act, 2008 (Public L aw 110 – 252) and as amended by section 188(a)(2) of the Medicare Improvements for Patients and Providers Act of 2008 (Public Law 110–275; 122 Stat. 2589) and by section 6 of the Q I Program Supplemental Funding Act of 2008, is amended— (1) in subsection (a)— (A) by inserting ‘‘medicare’’ before ‘‘fee - for-service’’; and (B) by inserting before the period at the end the fol- lowing: ‘‘including, but not limited to, an increase in the conversion factor under section 1848(d) to address, in whole or in part, any pro j ected shortfall in the conversion factor for 2014 relative to the conversion factor for 2008 and adjustments to payments for items and services furnished by providers of services and suppliers under such original medicare fee-for-service program’’; and (2) in subsection (b)— (A) in paragraph (1), by striking ‘‘during fiscal year 2014,’’ and all that follows and inserting the following: ‘‘during— ‘‘(A) fiscal year 2014, $ 22,290,000,000; and ‘‘(B) fiscal year 2020 and each subsequent fiscal year, the Secretary’s estimate, as of J uly 1 of the fiscal year, of the aggregate reduction in e x penditures under this title during the preceding fiscal year directly resulting from the reduction in payment amounts under sections 1848(a)(7), 1853(l)(4), 1853(m)(4), and 1886(b)(3)(B)(ix).’’; and (B) by adding at the end the following new paragraph: ‘‘(4) N OE F FECT ON PAYMENTS IN SU B SE Q UENT YEARS.— In the case that expenditures from the Fund are applied to, or otherwise affect, a payment rate for an item or service under this title for a year, the payment rate for such item or service shall be computed for a subsequent year as if such application or effect had never occurred.’’. (c) IMPLEMENTATION FUNDING.—In addition to funds otherwise available, out of any funds in the T reasury not otherwise appro- priated, there are appropriated to the Secretary of Health and Human Services for the Center for Medicare & Medicaid Services


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 123STA T .48 8 PUBLIC LA W 111 –5—FE B.1 7, 2 0 0 9Prog r amM a n ag e men tAc co u nt ,$10 0,000,000 f or eac h off is ca ly ears 2 00 9 through 201 5 an d $ 4 5,000,000 for fiscal year 201 6, w hich shall b ea v ailable for p urposes of carrying out the provisions of ( and amendments made by ) this subtitle . Amounts appropriated under this subsection for a fiscal year shall be available until e x pended. SEC.410 4.S TUDI ES AN D R E PO RTS ON H EA L TH IN F OR M ATION TECH - NOLO GY . (a) STUDYAN D REPOR TONAPP LIC ATION O FEH R PAY M ENT I NCENTI V E S FOR PROVIDERS N OT RECEIVIN GO T H ER INCENTIVE PAY - MENTS. — (1) STUDY.— (A) IN GENERAL.— T he Secretary of Health and Human Services shall conduct a study to determine the extent to which and manner in which payment incentives (such as under title XV III or XIX of the Social Security Act) and other funding for purposes of implementing and using certified EHR technology (as defined in section 1 8 48(o)(4) of the Social Security Act, as added by section 4101(a)) should be made available to health care providers who are receiving minimal or no payment incentives or other funding under this Act, under title XIII of division A, under title XVIII or XIX of such Act, or otherwise, for such purposes. ( B ) D ETAILS OF STUDY.—Such study shall include an examination of— (i) the adoption rates of certified EHR technology by such health care providers (ii) the clinical utility of such technology by such health care providers; (iii) whether the services furnished by such health care providers are appropriate for or would benefit from the use of such technology; (iv) the extent to which such health care providers wor k in settings that might otherwise receive an incen- tive payment or other funding under this Act, under title XIII of division A, under title XVIII or XIX of the Social Security Act, or otherwise; (v) the potential costs and the potential benefits of making payment incentives and other funding avail- able to such health care providers; and (vi) any other issues the Secretary deems to be appropriate. (2) REPORT.—Not later than J une 3 0, 2010, the Secretary shall submit to C ongress a report on the findings and conclu- sions of the study conducted under paragraph (1). (b) STUDY AND REPORT ON AVAILA B ILITY OF OPEN SOURCE HEALTH INFORMATION TECHNOLOGY SYSTEMS.— (1) STUDY.— (A) IN GENERAL.—The Secretary of Health and Human Services shall, in consultation with the U nder Secretary for Health of the Veterans Health Administration, the Director of the Indian Health Service, the Secretary of Defense, the Director of the Agency for Healthcare Research and Q uality, the Administrator of the Health Resources and Services Administration, and the Chairman


text: Dictionary of National Biography, 1885-1900/Montgomerie, Alexander (1588-1661)


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Page:United States Statutes at Large Volume 123.djvu/509

 123STA T .489PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 oftheF e d e ralC o m m unic ation s Commission , conduct a stud y on —( i ) the current a v aila b ility of o p en source health information technolo g y systems to Federal safety net providers (including small, rural providers) (ii) the total cost of o w nership of such systems in comparison to the cost of proprietary commercial products available; (iii) the ability of such systems to respond to the needs of, and be applied to, various populations (including children and disabled individuals); and (iv) the capacity of such systems to facilitate inter - operability . ( B )C ONSIDERAT IONS.— I n conducting the study under subparagraph ( A ), the S ecretary of H ealth and Human Services shall ta k e into account the circumstances of smaller health care providers, health care providers located in rural or other medically underserved areas, and safety net providers that deliver a significant level of health care to uninsured individuals, M edicaid beneficiaries, SCHI P beneficiaries, and other vulnerable individuals. ( 2 ) R E P ORT.— N ot later than O ctober 1 ,2 0 10, the Secretary of Health and Human Services shall submit to Congress a report on the findings and the conclusions of the study con- ducted under paragraph (1), together with recommendations for such legislation and administrative action as the Secretary determines appropriate. Subti t leB—M e d i ca id In centi v e sSEC.4201 . M E DI C A ID PROV IDER H I T ADOPTIO N AND OPERATION PA Y- MENTS IMP L EMENTATION FU NDIN G . (a) IN G ENERA L .—Section 1 9 0 3 of the Social Security Act ( 4 2 U .S.C. 139 6 b) is amended— (1) in subsection (a)(3)— (A) by striking ‘ ‘and ’ ’ at the end of subparagraph ( D ); (B) by striking ‘‘plus’’ at the end of subparagraph ( E ) and inserting ‘‘and’’; and (C) by adding at the end the following new subpara- graph ‘‘(F)(i) 100 percent of so much of the sums e x pended during such q uarter as are attributable to payments to Medicaid providers described in subsection (t)(1) to encour- age the adoption and use of certified EHR technology; and ‘‘(ii) 90 percent of so much of the sums expended during such quarter as are attributable to payments for reasonable administrative expenses related to the administration of payments described in clause (i) if the State meets the condition described in subsection (t)(9); plus’’; and (2) by inserting after subsection (s) the following new sub- section: ‘‘(t)(1) For purposes of subsection (a)(3)(F), the payments described in this paragraph to encourage the adoption and use of certified EHR technology are payments made by the State in accordance with this subsection —


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 123STA T .490PUBLIC LA W 111 –5—FE B.1 7, 2009 ‘ ‘ (A)toMedica id pr o v ider s descri b edi n para g rap h ( 2 )(A) notine x cess o f85 percent of net average a l lo w able costs (as defined in paragraph ( 3 )( E )) for certified E HR technolog y (and s u pport services including m aintenance and training that is for, or is necessary for the adoption and operation of, such technology) with respect to such providers and ‘‘( B ) to Medicaid providers described in paragraph (2)(B) not in excess of the maximum amount permitted under para - graph (5) for the provider involved . ‘‘(2) I n this subsection and subsection (a)(3)( F ), the term ‘Med- icaid provider ’ means — ‘‘(A) an eligible professional (as defined in paragraph (3)(B))— ‘‘(i) who is not hospital-based and has at least 3 0 percent of the professional’s patient volume (as estimated in accordance with a methodology established by the S ec- retary) attributable to individuals who are receiving med- ical assistance under this title; ‘‘(ii) who is not described in clause (i), who is a pediatri- cian, who is not hospital-based, and who has at least 20 percent of the professional’s patient volume (as estimated in accordance with a methodology established by the Sec- retary) attributable to individuals who are receiving med- ical assistance under this title; and ‘‘(iii) who practices predominantly in a Federally q uali- fied health center or rural health clinic and has at least 30 percent of the professional’s patient volume (as esti- mated in accordance with a methodology established by the Secretary) attributable to needy individuals (as defined in paragraph (3)(F)); and ‘‘(B)(i) a children’s hospital, or ‘‘(ii) an acute-care hospital that is not described in clause (i) and that has at least 1 0 percent of the hospital’s patient volume (as estimated in accordance with a methodology estab- lished by the Secretary) attributable to individuals who are receiving medical assistance under this title. An eligible professional shall not qualify as a Medicaid provider under this subsection unless any right to payment under sections 18 4 8(o) and 1853(l) with respect to the eligible professional has been waived in a manner specified by the Secretary. For purposes of calculating patient volume under subparagraph (A)(iii), insofar as it is related to uncompensated care, the Secretary may require the ad j ustment of such uncompensated care data so that it would be an appropriate proxy for charity care, including a downward adjustment to eliminate bad debt data from uncompensated care. In applying subparagraphs (A) and (B)(ii), the methodology estab- lished by the Secretary for patient volume shall include individuals enrolled in a Medicaid managed care plan (under section 1 9 03(m) or section 1932). ‘‘(3) In this subsection and subsection (a)(3)(F) ‘‘(A) T he term ‘certified EHR technology’ means a qualified electronic health record (as defined in 3000(13) of the P ublic Health Service Act) that is certified pursuant to section 3001(c)(5) of such Act as meeting standards adopted under section 3004 of such Act that are applicable to the type of record involved (as determined by the Secretary, such as an Defin i t i o n s.Ap p l i cab ilit y . Definition.


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 123STA T .49 1 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 ambul a torye le c tro ni c h ealth recor df or office - ba s ed p hysicians or an inpatient hospital electronic health record for hospitals ).‘ ‘ (B ) T he term ‘eli g ible professional ’ means a — ‘‘(i) physician ‘‘(ii) dentist; ‘‘(iii) certified nurse mid- w ife; ‘‘(i v ) nurse practitioner; and ‘‘(v) physician assistant insofar as the assistant is prac- ticing in a rural health clinic that is led by a physician assistant or is practicing in a F ederally q ualified health center that is so led. ‘‘( C ) The term ‘average allowable costs’ means, with respect to certified EHR technology of M edicaid providers described in paragraph ( 2 )( A ) for— ‘‘(i) the first year of payment with respect to such a provider, the average costs for the purchase and initial implementation or upgrade of such technology (and support services including training that is for, or is necessary for the adoption and initial operation of, such technology) for such providers, as determined by the S ecretary based upon studies conducted under paragraph ( 4 )(C); and ‘‘(ii) a subsequent year of payment with respect to such a provider, the average costs not described in clause (i) relating to the operation, maintenance, and use of such technology for such providers, as determined by the Sec- retary based upon studies conducted under paragraph (4)(C). ‘‘( D ) The term ‘hospital-based’ means, with respect to an eligible professional, a professional (such as a pathologist, anesthesiologist, or emergency physician) who furnishes substantially all of the individual’s professional services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital. The determination of whether an eligible professional is a hospital-based eligible professional shall be made on the basis of the site of service (as defined by the Secretary) and without regard to any employ- ment or billing arrangement between the eligible professional and any other provider. ‘‘(E) The term ‘net average allowable costs’ means, with respect to a Medicaid provider described in paragraph (2)(A), average allowable costs reduced by any payment that is made to such Medicaid provider from any other source (other than under this subsection or by a State or local government) that is directly attributable to payment for certified EHR technology or support services described in subparagraph (C). ‘‘(F) The term ‘needy individual’ means, with respect to a Medicaid provider, an individual— ‘‘(i) who is receiving assistance under this title; ‘‘(ii) who is receiving assistance under title X X I ‘‘(iii) who is furnished uncompensated care by the pro- vider; or ‘‘(iv) for whom charges are reduced by the provider on a sliding scale basis based on an individual’s ability to pay. ‘‘(4)(A) W ith respect to a Medicaid provider described in para- graph (2)(A), sub j ect to subparagraph (B), in no case shall—


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 123STA T .49 2 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 ‘ ‘ (i)then et av e r a g ea l l ow a b le c o s ts u n d er this sub - section f or the first y ear of p ay m ent (which may not be later than 2016 ) , which is intended to cover the costs described in paragraph ( 3 )( C )(i), e x ceed $ 2 5 ,000 (or such lesser amount as the S ecretary determines based on studies conducted under subparagraph (C)) ‘‘(ii) the net average allowable costs under this sub- section for a subse q uent year of payment, which is intended to cover costs described in paragraph (3)(C)(ii), exceed $10,000; and ‘‘(iii) payments be made for costs described in clause (ii) after 2021 or over a period of longer than 5 years . ‘‘( B ) I n the case of M edicaid provider described in paragraph (2)( A )(ii), the dollar amounts specified in subparagraph (A) shall be 2⁄3 of the dollar amounts otherwise specified. ‘‘(C) F or the purposes of determining average allowable costs under this subsection, the Secretary shall study the average costs to Medicaid providers described in paragraph (2)(A) of purchase and initial implementation and upgrade of certified EHR technology described in paragraph (3)(C)(i) and the average costs to such providers of operations, maintenance, and use of such technology described in paragraph (3)(C)(ii). In determining such costs for such providers, the Secretary may utili z e studies of such amounts submitted by States. ‘‘(5)(A) In no case shall the payments described in paragraph (1)(B) with respect to a Medicaid provider described in paragraph (2)(B) exceed — ‘‘(i) in the aggregate the product of— ‘‘(I) the overall hospital EHR amount for the pro- vider computed under subparagraph (B); and ‘‘(II) the Medicaid share for such provider com- puted under subparagraph (C); ‘‘(ii) in any year 50 percent of the product described in clause (i); and ‘‘(iii) in any 2-year period 9 0 percent of such product. ‘‘(B) For purposes of this paragraph, the overall hospital EHR amount, with respect to a Medicaid provider, is the sum of the applicable amounts specified in section 1 8 86(n)(2)(A) for such pro- vider for the first 4 payment years (as estimated by the Secretary) determined as if the Medicare share specified in clause (ii) of such section were 1. T he Secretary shall establish, in consultation with the State, the overall hospital EHR amount for each such Medicaid provider eligible for payments under paragraph (1)(B). For purposes of this subparagraph in computing the amounts under section 1886(n)(2)(C) for payment years after the first payment year, the Secretary shall assume that in subsequent payment years discharges increase at the average annual rate of growth of the most recent 3 years for which discharge data are available per year. ‘‘(C) The Medicaid share computed under this subparagraph, for a Medicaid provider for a period specified by the Secretary, shall be calculated in the same manner as the Medicare share under section 1886(n)(2)( D ) for such a hospital and period, except that there shall be substituted for the numerator under clause (i) of such section the amount that is equal to the number of inpatient-bed-days (as established by the Secretary) which are attributable to individuals who are receiving medical assistance Study.


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 123STA T .49 3 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 underthis tit l e a nd w h o are not des c ri b ed in section 18 8 6( n ) ( 2 )( D )(i) .I nco mp utin g inpatient - bed-da y s under the pre v ious sentence , the S ecretary shall ta k e into account inpatient-bed-days attributable to inpatient-bed-days that are paid f or individuals enrolled in a M edicaid managed care plan (under section 1 903 (m) or section 1932). ‘ ‘(D) In no case may the payments described in paragraph (1)( B ) with respect to a Medicaid provider described in paragraph (2)(B) be paid — ‘‘(i) for any year beginning after 2016 unless the provider has been provided payment under paragraph (1)(B) for the previous year and ‘‘(ii) over a period of more than 6 years of payment. ‘‘(6) P ayments described in paragraph (1) are not in accordance with this subsection unless the following re q uirements are met ‘‘( A )(i) T he State provides assurances satisfactory to the Secretary that amounts received under subsection (a)(3)( F ) with respect to payments to a Medicaid provider are paid, sub j ect to clause (ii), directly to such provider (or to an employer or facility to which such provider has assigned payments) with- out any deduction or rebate. ‘‘(ii) Amounts described in clause (i) may also be paid to an entity promoting the adoption of certified EHR technology, as designated by the State, if participation in such a payment arrangement is voluntary for the eligible professional involved and if such entity does not retain more than 5 percent of such payments for costs not related to certified EHR technology (and support services including maintenance and training) that is for, or is necessary for the operation of, such technology. ‘‘(B) A Medicaid provider described in paragraph (2)(A) is responsible for payment of the remaining 15 percent of the net average allowable cost. ‘‘( C )(i) Subject to clause (ii), with respect to payments to a Medicaid provider— ‘‘(I) for the first year of payment to the Medicaid pro- vider under this subsection, the Medicaid provider dem- onstrates that it is engaged in efforts to adopt, implement, or upgrade certified EHR technology; and ‘‘(II) for a year of payment, other than the first year of payment to the Medicaid provider under this subsection, the Medicaid provider demonstrates meaningful use of cer- tified EHR technology through a means that is approved by the State and acceptable to the Secretary, and that may be based upon the methodologies applied under section 18 4 8(o) or 1886(n). ‘‘(ii) In the case of a Medicaid provider who has completed adopting, implementing, or upgrading such technology prior to the first year of payment to the Medicaid provider under this subsection, clause (i)(I) shall not apply and clause (i)(II) shall apply to each year of payment to the Medicaid provider under this subsection, including the first year of payment. ‘‘(D) To the e x tent specified by the Secretary, the certified EHR technology is compatible with State or Federal administra- tive management systems. For purposes of subparagraph (B), a Medicaid provider described in paragraph (2)(A) may accept payments for the costs described


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 123STA T .49 4 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 insuch su bpar a g raph f r om a St at e or l ocal go v ernment .F or pur - poses of subparagraph (C), in establishing the means d escribed in such subparagraph, w hich ma y include clinical q uality reporting to the State, the State shall ensure that populations with unique needs, such as children, are appropriately addressed. ‘ ‘( 7 ) W ith respect to M edicaid providers described in paragraph ( 2 )( A ), the Secretary shall ensure coordination of payment with respect to such providers under sections 184 8(o) and 18 53 (l) and under this subsection to assure no duplication of funding. Such coordination shall include, to the e x tent practicable, a data matching process between State Medicaid agencies and the Centers for Medi- care & Medicaid Services using national provider identifiers. For such purposes, the Secretary may require the submission of such data relating to payments to such Medicaid providers as the Sec- retary may specify. ‘‘(8) I n carrying out paragraph ( 6 )(C), the State and Secretary shall see k , to the maximum extent practicable, to avoid duplicative requirements from Federal and State governments to demonstrate meaningful use of certified EHR technology under this title and title XV III. In doing so, the Secretary may deem satisfaction of requirements for such meaningful use for a payment year under title XVIII to be sufficient to qualify as meaningful use under this subsection. T he Secretary may also specify the reporting periods under this subsection in order to carry out this paragraph. ‘‘( 9 ) In order to be provided Federal financial participation under subsection (a)(3)(F)(ii), a State must demonstrate to the satis- faction of the Secretary, that the State — ‘‘(A) is using the funds provided for the purposes of admin- istering payments under this subsection, including tracking of meaningful use by Medicaid providers ‘‘( B ) is conducting adequate oversight of the program under this subsection, including routine tracking of meaningful use attestations and reporting mechanisms; and ‘‘(C) is pursuing initiatives to encourage the adoption of certified EHR technology to promote health care quality and the exchange of health care information under this title, sub j ect to applicable laws and regulations governing such exchange. ‘‘(1 0 ) The Secretary shall periodically submit reports to the Committee on Energy and Commerce of the House of Representa- tives and the Committee on Finance of the Senate on status, progress, and oversight of payments described in paragraph (1), including steps taken to carry out paragraph (7). Such reports shall also describe the extent of adoption of certified EHR technology among Medicaid providers resulting from the provisions of this subsection and any improvements in health outcomes, clinical quality, or efficiency resulting from such adoption. ’ ’. (b) I MPLE ME NTA T IO NF U N D IN G .—In addition to funds otherwise available, out of any funds in the Treasury not otherwise appro- priated, there are appropriated to the Secretary of Health and Human Services for the Centers for Medicare & Medicaid Services P rogram Management Account, $ 40,000,000 for each of fiscal years 2009 through 2015 and $20,000,000 for fiscal year 2016, which shall be available for purposes of carrying out the provisions of (and the amendments made by) this section. Amounts appropriated under this subsection for a fiscal year shall be available until expended. Reports.


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 123STA T .495PUBLIC LA W 111 – 5 —FE B.1 7, 2 0 09 Subti t leC—M i sc ell an e o us Me d ica r e P ro v isions SEC.4301 . MORAT OR I AO N CERTAIN ME D ICARE RE GUL ATIONS. (a)DELAYINPH A S E OUTOFM E D I C A R E H OS P ICE B UD G ET N EU - TRALITY A D J UST M ENT F ACTOR DURING FISCAL Y EAR 20 0 9.— N otwi t h - s ta nd in g an y oth erp ro v ision o fl aw , in c l u ding the final rule pu b - lished on August 8, 2008, 73 Federal R egister 46 464 et se q ., relating to Medicare Progra m; Hospice W age I nde x for Fiscal Year 2009, the S ecretary of Health and Human Services shall not phase out or eliminate the budget neutrality ad j ustment factor in the Medicare hospice wage index before October 1, 2009, and the Secretary shall recompute and apply the final Medicare hospice wage index for fiscal year 2009 as if there had been no reduction in the budget neutrality adjustment factor. (b) NON-APPLICATION OF PHASED-OUT INDIRECT MEDICAL E DU- CATION (IME) ADJUSTMENT FACTOR FOR FISCAL YEAR 2009.— (1) IN GENERAL.—Section 412.322 of title 42, C ode of Fed- eral Regulations, shall be applied without regard to paragraph (c) of such section, and the Secretary of Health and Human Services shall recompute payments for discharges occurring on or after October 1, 2008, as if such paragraph had never been in effect. (2) NO EFFECT ON SU B SE Q UENT YEARS.—Nothing in para- graph (1) shall be construed as having any effect on the applica- tion of paragraph (d) of section 412.322 of title 42, Code of Federal Regulations. (c) FUNDING FOR IMPLEMENTATION.—In addition to funds other- wise available, for purposes of implementing the provisions of sub- sections (a) and (b), including costs incurred in reprocessing claims in carrying out such provisions, the Secretary of Health and Human Services shall provide for the transfer from the Federal Hospital Insurance T rust Fund established under section 1817 of the Social Security Act (42 U .S.C. 139 5 i) to the Centers for Medicare & Med- icaid Services Program Management Account of $ 2,000,000 for fiscal year 2009. SEC. 430 2 . LONG - TERM CARE H OS P ITAL TECHNICAL CORRECTIONS. (a) PAYMENT.—Subsection (c) of section 114 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public L aw 110 – 173) is amended— (1) in paragraph (1)— (A) by amending the heading to read as follows

‘DELAY IN APPLICATION OF 25 PERCENT PATIENT THRESHOLD PAY- MENT ADJUSTMENT ’ ’; (B) by stri k ing ‘‘the date of the enactment of this Act’’ and inserting ‘‘ J uly 1, 2007,’’; and (C) in subparagraph (A), by inserting ‘‘or to a long- term care hospital, or satellite facility, that as of December 29, 2007, was co-located with an entity that is a provider- based, off-campus location of a subsection (d) hospital which did not provide services payable under section 1886(d) of the Social Security Act at the off-campus location’’ after ‘‘freestanding long-term care hospitals’’; and (2) in paragraph (2)— 42USC1395w w note.Ap p licab ilit y .


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 123STA T .496PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 (A)insubpar a g rap h ( B )(ii) , b y ins e r t ing ‘ ‘ o r that is d es c ribed in section 412. 22(h)( 3 )(i) o f such tit l e ’ ’ before the period and (B) in subparagraph ( C ), by stri k ing ‘‘the date of the enact m ent of this Act’’ and inserting ‘‘ O ctober 1, 2 0 0 7 (or J uly 1, 2007, in the case of a satellite facility described in section 412.22(h)(3)(i) of title 42, Code of F ederal R egula - tions)’’. (b) MORAT OR IUM . —S ubsection (d)(3)(A) of such section is amended by striking ‘‘if the hospital or facility’’ and inserting ‘‘if the hospital or facility obtained a certificate of need for an increase in beds that is in a State for w hich such certificate of need is re q uired and that was issued on or after April 1, 200 5, and before D ecember 2 9, 2007, or if the hospital or facility’’. (c) EF F EC TI V E DATE.— T he amendments made by this section shall be effecti v e and apply as if included in the enactment of the Medicare, Medicaid, and SC HIP E x tension Act of 2007 (Public L aw 110 – 173). TI T LEV—S T A TE F IS C AL R ELIEF SEC.50 00. PUR P O SES EO F CO N TENTS. (a) PUR P O S ES.—The purposes of this title are as follows (1) To provide fiscal relief to States in a period of economic downturn. (2) To protect and maintain State Medicaid programs during a period of economic downturn, including by helping to avert cuts to provider payment rates and benefits or services, and to prevent constrictions of income eligibility requirements for such programs, but not to promote increases in such require- ments. (b) TA BL EOFCO N TENTS.—The table of contents for this title is as follows: TI T LEV—S T A TE F IS C AL R ELIEF S ec.50 00. Purpos es eo f co n tents. Sec. 500 1 . Te m porar yi ncrease of M e d icaid FMAP. Sec. 500 2 . Temporary increase in D S H allotments durin g recession. Sec. 500 3 . E x tension of moratoria on certain Medicaid final regulations. Sec. 500 4 . Extension of transitional medical assistance ( TMA ) . Sec. 5005. Extension of t h e q ualifying indi v idual ( Q I) program. Sec. 500 6 . Protections for Indians under Medicaid and CHIP. Sec. 500 7 . Funding for oversight and implementation. Sec. 500 8 . G A O study and report regarding State needs during periods of national economic do w nturn. SEC. 500 1 .TE M PORAR YI NCREASE OF ME D ICAID FMAP. (a) PERMITTIN G MAINTENANCE OF FMAP.—Sub j ect to subsections (e), (f), and (g), if the FMAP determined without regard to this section for a State for— (1) fiscal year 2009 is less than the FMAP as so determined for fiscal year 200 8, the FMAP for the State for fiscal year 2008 shall be substituted for the State’s FMAP for fiscal year 2009, before the application of this section; (2) fiscal year 2010 is less than the FMAP as so determined for fiscal year 2008 or fiscal year 2009 (after the application of paragraph (1)), the greater of such FMAP for the State for fiscal year 2008 or fiscal year 2009 shall be substituted 42USC1396dnote. 42 USC 1396 a note. 42 USC 139 5w w note.
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 123STA T .497PUBLIC LA W 111 –5—FE B. 17 , 2 0 09 fortheS t a te ’sFMAP for f i s c a ly ear 201 0 ,b efore the a p plicatio n of this section an d(3) fiscal year 2011 is less than the FMAP as so deter m ined for fiscal year 200 8, fiscal year 200 9 (after the application of para g raph (1)), or fiscal year 2010 (after the application of paragraph (2)), the greatest of s u ch FMAP for the State for fiscal year 2008, fiscal year 2009, or fiscal year 2010 shall be substituted for the State’s FMAP for fiscal year 2011, before the application of this section, but only for the first calendar q uarter in fiscal year 2011 . (b) GEN E RAL6 .2 PER C EN T A G EP OI NT I NCREA S E. — (1) IN GENERAL.—Sub j ect to subsections (e), (f), and (g) and paragraph (2), for each State for calendar quarters during the recession adjustment period (as defined in subsection (h)(3)), the FMAP (after the application of subsection (a)) shall be increased ( w ithout regard to any limitation otherwise specified in section 190 5 (b) of the Social Security Act ( 4 2 U .S. C. 1396d(b))) by 6.2 percentage points. (2) S P ECIAL ELECTION F OR TERRITORIES.—In the case of a State that is not one of the 50 States or the D istrict of Columbia, paragraph (1) shall only apply if the State ma k es a one - time election, in a form and manner specified by the Secretary and for the entire recession adjustment period, to apply the increase in FMAP under paragraph (1) and a 15 percent increase under subsection (d) instead of applying a 30 percent increase under subsection (d). (c) A D DITIONAL R ELIEF B ASED ON INCREASE IN UNE M PLO Y - MENT.— (1) IN GENERAL.—Subject to subsections (e), (f), and (g), if a State is a qualifying State under paragraph (2) for a calendar quarter occurring during the recession adjustment period, the FMAP for the State shall be further increased by the number of percentage points equal to the product of— (A) the State percentage applicable for the State under section 1905(b) of the Social Security Act (42 U.S.C. 1396d(b)) after the application of subsection (a) and after the application of 1⁄2 of the increase under subsection (b); and (B) the applicable percent determined in paragraph (3) for the calendar quarter (or, if greater, for a pre v ious such calendar quarter). (2) QU ALIFYING CRITERIA.— (A) IN GENERAL.—For purposes of paragraph (1), a State qualifies for additional relief under this subsection for a calendar quarter occurring during the recession adjustment period if the State is 1 of the 50 States or the District of Columbia and the State satisfies any of the following criteria for the quarter (i) T he State unemployment increase percentage (as defined in paragraph (4)) for the quarter is at least 1.5 percentage points but less than 2.5 percentage points. (ii) The State unemployment increase percentage for the quarter is at least 2.5 percentage points but less than 3.5 percentage points. (iii) The State unemployment increase percentage for the quarter is at least 3.5 percentage points. Ap p licab ili ty.


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 123STA T .498PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 (B)MAINTE NAN C E OFS TAT U S .—IfaSt at equ a li fie s f or a d ditio n al relief under t h is su b se c tion for a calendar quarter , it shall be dee m edtoha v e qualified for such relief for each subsequent calendar quarter endin g before J ul y1 , 20 10. ( 3 ) AP P L ICA B LE PE R CENT.— (A) IN G ENERAL.— F or p urposes of paragraph (1), sub -j ect to subparagraph (B), the applicable percent is— (i) 5 .5 percent, if the State satisfies the criteria described in paragraph (2)(A)(i) for the calendar quarter (ii) 8 .5 percent if the State satisfies the criteria described in paragraph (2)(A)(ii) for the calendar quarter; and (iii) 11.5 percent if the State satisfies the criteria described in paragraph (2)(A)(iii) for the calendar quarter. (B) MAINTENANCE OF H IGHER APPLICABLE PERCENT.— (i) H OL D HAR M LESS PERIOD.—If the percent applied to a State under subparagraph (A) for any calendar quarter in the recession adjustment period beginning on or after January 1, 200 9, and ending before July 1, 2010, (determined w ithout regard to this subpara- graph) is less than the percent applied for the pre- ceding quarter (as so determined), the higher applicable percent shall continue in effect for each subsequent calendar quarter ending before July 1, 2010. (ii) N OTICE OF LO W ER APPLICABLE PERCENT.— T he Secretary shall notify a State at least 6 0 days prior to applying any lower applicable percent to the State under this paragraph. ( 4 ) C OMPUTATION OF STATE UNEMPLO Y MENT INCREASE PERCENTAGE.— (A) IN GENERAL.—In this subsection, the ‘ ‘State unemployment increase percentage ’ ’ foraStateforacal- endar quarter is equal to the number of percentage points (if any) by which— (i) the average monthly unemployment rate for the State for months in the most recent previous 3- consecutive-month period for which data are available, subject to subparagraph (C); e x ceeds (ii) the lowest average monthly unemployment rate for the State for any 3-consecutive-month period pre- ceding the period described in clause (i) and beginning on or after January 1, 2006. (B) A V ERAGE MONTHLY UNEMPLOYMENT RATE DEFINED.—In this paragraph, the term ‘‘average monthly unemployment rate’’ means the average of the monthly number unemployed, divided by the average of the monthly civilian labor force, seasonally adjusted, as determined based on the most recent monthly publications of the Bureau of L abor Statistics of the D epartment of Labor. (C) SPECIAL RULE.— W ith respect to— (i) the first 2 calendar quarters of the recession adjustment period, the most recent previous 3-consecu- tive-month period described in subparagraph (A)(i) Deadlin e .


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 123STA T .49 9 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 shal l bet he 3-con sec u t iv e- m onth p e r io d be g inning w ith O ctober 20 0 8; and ( ii ) the last 2 calendar q uarters o f the recession ad j ustment period , the most recent previous 3-consecu- tive-month period described in such subparagraph shall be the 3-consecutive-month period beginning with D ecember 200 9, or, if it results in a higher applicable percent under paragraph (3), the 3-consecutive-month period beginning with J anuar y 20 1 0 . (d) INCREAS E I N C A PO N M E D ICAID P A YM EN T STO T ERRITORIES. —S ubject to subsections (f) and (g), with respect to entire fiscal years occurring during the recession adjustment period and with respect to fiscal years only a portion of which occurs during such period (and in proportion to the portion of the fiscal year that occurs during such period), the amounts otherwise determined for Puerto R ico, the V irgin Islands, G uam, the N orthern Mariana Islands, and A merican Samoa under subsections (f) and (g) of sec- tion 1108 of the Social Security Act ( 4 2 6U .S.C. 1308) shall each be increased by 30 percent (or, in the case of an election under subsection (b)(2), 1 5 percent). In the case of such an election by a territory, subsection (a)(1) of such section shall be applied without regard to any increase in payment made to the territory under part E of title IV of such Act that is attributable to the increase in F MAP effected under subsection (b) for the territory. (e) SCOPE O F APP L ICATION.—The increases in the FMAP for a State under this section shall apply for purposes of title X IX of the Social Security Act and shall not apply with respect to— (1) disproportionate share hospital payments described in section 1923 of such Act (42 U.S.C. 1396r – 4); (2) payments under title IV of such Act (42 U.S.C. 601 et seq.) (e x cept that the increases under subsections (a) and (b) shall apply to payments under part E of title IV of such Act (42 U.S.C. 6 7 0 et seq.) and, for purposes of the application of this section to the District of Columbia, payments under such part shall be deemed to be made on the basis of the FMAP applied with respect to such District for purposes of title XIX and as increased under subsection (b)); (3) payments under title XXI of such Act (42 U.S.C. 1397aa et seq.); (4) any payments under title XIX of such Act that are based on the enhanced FMAP described in section 2105(b) of such Act (42 U.S.C. 1397ee(b)); or (5) any payments under title XIX of such Act that are attributable to expenditures for medical assistance provided to individuals made eligible under a State plan under title XIX of the Social Security Act (including under any waiver under such title or under section 1115 of such Act (42 U.S.C. 1315)) because of income standards (expressed as a percentage of the poverty line) for eligibility for medical assistance that are higher than the income standards (as so expressed) for such eligibility as in effect on July 1, 2008, (including as such standards were proposed to be in effect under a State law enacted but not effective as of such date or a State plan amend- ment or waiver request under title XIX of such Act that was pending approval on such date). (f) STATE INELI G I B ILITY; L IMITATION; SPECIAL R U LES.— (1) MAINTENANCE OF ELIGIBILITY RE Q UIREMENTS.— Ap p licab ili ty.


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 123STA T .50 0 PUBLIC LA W 111 – 5 —FE B.1 7, 200 9(A)INGE NE RAL.—Subject t os ub par a g rap h s( B )a nd ( C ) , a State i snote l igible f or an increase in its FM A P under subsection (a), (b), or (c), or an increase in a cap a m ount under subsection (d), if eligibilit y standards, meth - odologies, or procedures under its State plan under title X IX of the Social Security Act (including any w ai v er under such title or under section 1 11 5 of such Act ( 42U .S.C. 1 3 15)) are more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) as in effect on J uly1,2 0 0 8 . (B) S T ATE RE I N S TATE M ENT OF ELIGI B ILIT YP ERMITTE D .— Subject to subparagraph (C), a State that has restricted eligibility standards, methodologies, or procedures under its State plan under title XIX of the Social Security Act (including any waiver under such title or under section 1115 of such Act (42 U.S.C. 1315)) after July 1, 2008, is no longer ineligible under subparagraph (A) beginning with the first calendar q uarter in which the State has reinstated eligibility standards, methodologies, or proce- dures that are no more restrictive than the eligibility stand- ards, methodologies, or procedures, respectively, under such plan (or waiver) as in effect on July 1, 2008. (C) SPE C IAL R U LES.—A State shall not be ineligible under subparagraph (A)— (i) for the calendar quarters before July 1, 200 9, on the basis of a restriction that was applied after July 1, 2008, and before the date of the enactment of this Act, if the State prior to July 1, 2009, has reinstated eligibility standards, methodologies, or procedures that are no more restrictive than the eligi- bility standards, methodologies, or procedures, respec- tively, under such plan (or waiver) as in effect on July 1, 2008 or (ii) on the basis of a restriction that was directed to be made under State law as in effect on July 1, 2008, and would have been in effect as of such date, but for a delay in the effective date of a waiver under section 1115 of such Act with respect to such restric- tion. (2) COMPLIANCE W IT H PROMPT PAY RE Q UIREMENTS.— (A) APPLICATION TO PRACTITIONERS.— (i) IN GENERAL.—Subject to the succeeding provi- sions of this subparagraph, no State shall be eligible for an increased FMAP rate as provided under this section for any claim received by a State from a practi- tioner subject to the terms of section 1902(a)(3 7 )(A) of the Social Security Act (42 U.S.C. 139 6 a(a)(37)(A)) for such days during any period in which that State has failed to pay claims in accordance with such section as applied under title XIX of such Act. (ii) R EPORTING REQUIREMENT.— E ach State shall report to the Secretary, on a quarterly basis, its compli- ance with the requirements of clause (i) as such requirements pertain to claims made for covered serv- ices during each month of the preceding quarter. (iii) W AI V ER AUTHORITY.— T he Secretary may waive the application of clause (i) to a State, or the


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 123STA T .50 1 PUBLIC LA W 111 – 5 —FE B.1 7, 200 9repo r ting re qu ire m ent impo s e d under cla use ( ii ), during an y period in wh ich there are e x igent cir - cumstances, including natural disasters, that pre v ent the timely processing o f claims or the su b mission of such a report . (iv) AP P LICAT I ON TO CLAI MS . —C lauses (i) and (ii) shall only apply to claims made for covered services after the date of enactment of this Act. ( B ) APPLICATION TO N UR SIN GF ACILITI E SAN DH OS- PITALS.— (i) I N GENERAL.— S ub j ect to clause (ii), the provi- sions of subparagraph (A) shall apply with respect to a nursing facility or hospital, insofar as it is paid under title X IX of the Social Security Act on the basis of submission of claims, in the same or similar manner (but within the same timeframe) as such provisions apply to practitioners described in such subparagraph. (ii) G RACE PERIOD.— N otwithstanding clause (i), no period of ineligibility shall be imposed against a State prior to J une 1, 20 0 9 , on the basis of the State failing to pay a claim in accordance with such clause. ( 3 ) STATE ’ S APPLICATION TO W ARD RAIN Y DAY FUND.—A State is not eligible for an increase in its FM A P under subsection (b) or (c), or an increase in a cap amount under subsection (d), if any amounts attributable (directly or indirectly) to such increase are deposited or credited into any reserve or rainy day fund of the State. ( 4 )NOWAI V ER AUTHORITY.— E xcept as provided in para- graph (2)(A)(iii), the Secretary may not waive the application of this subsection or subsection (g) under section 111 5 of the Social Security Act or otherwise. (5) L IMITATION OF FMAP TO 10 0 PERCENT.—In no case shall an increase in FMAP under this section result in an FMAP that exceeds 100 percent. ( 6 ) T REATMENT OF CERTAIN E X PENDITURES.— W ith respect to expenditures described in section 2105(a)(1)(B) of the Social Security Act (42 U .S.C. 139 7 ee(a)(1)(B)), as in effect before April 1, 2009, that are made during the period beginning on O ctober 1, 200 8, and ending on March 31, 2009, any additional Federal funds that are paid to a State as a result of this section that are attributable to such expenditures shall not be counted against any allotment under section 2104 of such Act (42 U.S.C. 1397dd). (g) R E Q UIREMENTS.— (1) STATE REPORTS.—Each State that is paid additional Federal funds as a result of this section shall, not later than September 30, 2011, submit a report to the Secretary, in such form and such manner as the Secretary shall determine, regarding how the additional Federal funds were expended. (2) ADDITIONAL REQUIREMENT FOR CERTAIN STATES.—In the case of a State that requires political subdivisions within the State to contribute toward the non-Federal share of expendi- tures under the State Medicaid plan required under section 1902(a)(2) of the Social Security Act (42 U.S.C. 1396a(a)(2)), the State is not eligible for an increase in its FMAP under subsection (b) or (c), or an increase in a cap amount under subsection (d), if it requires that such political subdivisions Timep e r i od.


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 123STA T .50 2 PUBLIC LA W 111 – 5 —FE B.1 7, 200 9payforqu ar te r sd ur ing t h ere c ession ad j ust m ent period a greater percentage of the non -F edera l share of such e x pendi- tures , or a greater percentage of the non-Federal share of payments under section 1923, than the respecti v e percentage that w ould have b een required by the S tate under such plan on September 3 0, 200 8 , prior to application of this section .( h )DEFIN I T I O N S . —I n this section, except as otherwise provided (1) F MAP .— T he term ‘ ‘FMAP ’ ’ means the Federal medical assistance percentage, as defined in section 190 5 (b) of the Social Security Act ( 4 2 U .S. C . 139 6 d(b)), as determined without regard to this section except as otherwise specified. (2) PO V E R T YL INE.—The term ‘‘poverty line’’ has the meaning given such term in section 6 7 3(2) of the Community Services B loc kG rant Act (42 U.S.C. 9902(2)), including any revision required by such section. (3) R E C ESSION ADJU ST M ENT P ERIOD.—The term ‘‘recession adjustment period’’ means the period beginning on O ctober 1, 2008, and ending on December 31, 2010. (4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of H ealth and Human Services. (5) STATE.—The term ‘‘State’’ has the meaning given such term in section 1101(a)(1) of the Social Security Act (42 U.S.C. 1301(a)(1)) for purposes of title X IX of the Social Security Act (42 U.S.C. 1396 et seq.). (i) SUNSET.—This section shall not apply to items and services furnished after the end of the recession adjustment period. (j) L IMITATION ON FMAP C H AN G E.—The increase in FMAP effected under section 614 of the Children’s Health Insurance Pro- gram Reauthori z ation Act of 2009 shall not apply in the computation of the enhanced FMAP under title XXI or XIX of the Social Security Act for any period (notwithstanding subsection (i)). SEC.50 0 2 . T E MPORA R YIN CREASE IN D S H A L LOTMENTS D U RIN G RECESSION. Section 1923(f)(3) of the Social Security Act (42 U.S.C. 1396r – 4(f)(3)) is amended— (1) in subparagraph (A), by striking ‘‘paragraph (6)’’ and inserting ‘‘paragraph (6) and subparagraph ( E )’’ and (2) by adding at the end the following new subparagraph: ‘‘(E) TEMPORARY INCREASE IN ALLOTMENTS DURING RECESSION.— ‘‘(i) IN GENERAL.—Subject to clause (ii), the DSH allotment for any State— ‘‘(I) for fiscal year 2009 is equal to 102.5 per- cent of the DSH allotment that would be deter- mined under this paragraph for the State for fiscal year 2009 without application of this subpara- graph, notwithstanding subparagraphs (B) and (C); ‘‘(II) for fiscal year 2010 is equal to 102.5 percent of the DSH allotment for the State for fiscal year 2009, as determined under subclause (I); and ‘‘(III) for each succeeding fiscal year is equal to the DSH allotment for the State under this paragraph determined without applying sub- clauses (I) and (II).


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 123STA T .50 3 PUBLIC LA W 111 – 5 —FE B.1 7, 200 9‘ ‘ (i i )AP P LICAT I ON.—Clause (i) s h all not a p pl y to a S tate f o r a year in the c ase that the D S H allot m ent for such State for such year un d er this para g raph determined w ithout applying clause (i) would grow higher than the DSH allotment specified under clause (i) for the State for such year. ’ ’. SEC.50 0 3 .E XT E N S IO NO FM O RA TORIA ON CERTAIN ME D ICAID FINA L RE GU LATIONS. (a) F INAL REGU LATION S RELATING TO O PTIONAL CASE M ANAGE -M ENT SE RV ICES AN D ALLO W A B LE P ROVIDER T A X ES.—Section 70 0 1 (a)( 3 )(A) of the Supplemental Appropriations Act ,2 00 8 (Pu b lic L aw 110 – 2 5 2) is amended by stri k ing ‘‘April 1, 200 9 ’’ and inserting ‘‘ J uly 1, 2009’’. (b) FINAL REGULATION RELATING TO SC H OOL- B ASED ADMINIS- TRATION AND SCHOOL-BASED TRANSPORTATION.—Section 20 6 of the Medicare, Medicaid, and SCH I P Ex tension Act of 2007 (Public Law 110–173), as amended by section 7001(a)(2) of the Supple- mental Appropriations Act, 2008 (Public Law 110–252), is amended by inserting ‘‘(July 1, 2009, in the case of the final regulation relating to school-based administration and school-based transpor- tation)’’ after ‘‘April 1, 2009,’’. (c) FINAL REGULATION RELATING TO OUTPATIENT HOSPITAL FACILIT Y SERVICES.— N otwithstanding any other pro v ision of law, with respect to expenditures for services furnished during the period beginning on December 8, 2008, and ending on June 30, 2009, the Secretary of Health and Human Services shall not take any action (through promulgation of regulation, issuance of regulatory guidance, use of Federal payment audit procedures, or other administrative action, policy, or practice, including a Medical Assist- ance Manual transmittal or letter to State Medicaid directors) to implement the final regulation relating to clarification of the defini- tion of outpatient hospital facility services under the Medicaid program published on November 7, 2008 (73 Federal Register 66187). (d) SENSE O F CONGRESS.—It is the sense of Congress that the Secretary of Health and Human Services should not promulgate as final regulations any of the following proposed Medicaid regula- tions (1) COST LIMITS FOR CERTAIN PROVIDERS.—The proposed regulation published on January 18, 2007, (72 Federal Register 2236) (and the purported final regulation published on May 29, 2007 (72 Federal Register 297 4 8) and determined by the U nited States District Court for the District of Columbia to have been ‘‘improperly promulgated’’, Alamed a CountyM ed ic al Cente r, et al ., v . L eavitt, et al., Civil Action No. 08-0422, Mem. at 4 (D.D.C. May 23, 2008)). (2) PAYMENTS FOR GRADUATE MEDICAL EDUCATION.—The proposed regulation published on May 23, 2007 (72 Federal Register 28930). (3) REHABILITATIVE SERVICES.—The proposed regulation published on August 13, 2007 (72 Federal Register 45201). SEC. 500 4 . EXTENSION OF TRANSITIONAL MEDICAL ASSISTANCE ( TMA ) . (a) 18-MONTH EXTENSION.— (1) IN GENERAL.—Sections 1902(e)(1)(B) and 1925(f) of the Social Security Act (42 U.S.C. 1396a(e)(1)(B), 1396r–6(f)) are Timep e r i od.


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 123STA T .504PUBLIC LA W 111 – 5 —FE B.1 7, 200 9each a m e nd ed bystrik in g‘ ‘ S e p tember 30,2 003 ’ ’ and inserting ‘‘ D ecember 3 1, 2010’’ .( 2 )EF F ECTIV E DA TE. —T he amendments made by this s u b - secti o n sha l ltakee f fect on J uly 1, 200 9 . (b) STATE OP TI ON OF I NITIA L 12- M ONT H ELI G I B ILIT Y .—Section 192 5 of the Social Security A ct( 4 2 U .S. C . 139 6 r – 6) is amended— (1) in subsection (a)(1), by inserting ‘‘but sub j ect to para- graph (5)’’ after ‘‘ N ot w ithstanding any other pro v ision of this title’’ (2) by adding at the end of subsection (a) the following ‘‘(5) OPTION OF 12 - M ONTH INITIAL ELIGIBILITY PE R IOD.—A State may elect to treat any reference in this subsection to a 6-month period (or 6 months) as a reference to a 12-month period (or 12 months). In the case of such an election, subsection (b) shall not apply.’’; and (3) in subsection (b)(1), by inserting ‘‘but subject to sub- section (a)(5)’’ after ‘‘Notwithstanding any other provision of this title’’. (c) R EMOVAL OF RE QU IREMENT FOR P REVIOU S RECEIPT OF MED- ICAL ASSISTANCE.—Section 1925(a)(1) of such Act (42 U.S.C. 1396r– 6(a)(1)), as amended by subsection (b)(1), is further amended— (1) by inserting ‘‘subparagraph ( B ) and’’ before ‘‘paragraph (5)’’; (2) by redesignating the matter after ‘‘REQUIREMENT.—’’ as a subparagraph (A) with the heading ‘‘IN GENERAL.—’’ and with the same indentation as subparagraph (B) (as added by paragraph (3)); and (3) by adding at the end the following: ‘‘(B) STATE OPTION TO W AIVE REQUIREMENT FOR 3 MONTHS BEFORE RECEIPT OF MEDICAL ASSISTANCE.—A State may, at its option, elect also to apply subparagraph (A) in the case of a family that was receiving such aid for fewer than three months or that had applied for and was eligible for such aid for fewer than 3 months during the 6 immediately preceding months described in such subpara- graph.’’. (d) CMS REPORT ON ENROLLMENT AND PARTICIPATION RATES UNDER TMA.—Section 1925 of such Act (42 U.S.C. 1396r–6), as amended by this section, is further amended by adding at the end the following new subsection: ‘‘(g) COLLECTION AND REPORTING OF PARTICIPATION INFORMA- TION.— ‘‘(1) COLLECTION OF INFORMATION FROM STATES.—Each State shall collect and submit to the Secretary (and make publicly available), in a format specified by the Secretary, information on average monthly enrollment and average monthly participation rates for adults and children under this section and of the number and percentage of children who become ineligible for medical assistance under this section whose medical assistance is continued under another eligibility category or who are enrolled under the State’s child health plan under title X XI. Such information shall be submitted at the same time and fre q uency in which other enrollment information under this title is submitted to the Secretary. ‘‘(2) ANNUAL REPORTS TO CONGRESS.—Using the information submitted under paragraph (1), the Secretary shall submit 42USC1396anote.


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 123STA T .50 5 PUBLIC LA W 111 – 5 —FE B.1 7, 200 9toC o ngres s a nn u a l re p orts c oncern i ng enroll m ent an d partici - pation rates descri b ed in suc h paragraph .’ ’. ( e )EF F ECTIV E DA TE. —T he amendments made b y subsections (b) through (d) shall ta k ee f fect on J uly 1,20 0 9 . SEC.50 05. E XT E N S IO NO F T H E QUAL IF Y IN G IN D I V IDUAL ( QI )PR O - GRA M . (a) E X TE NS I O N.— S ection 1902(a)(10)(E)(i v ) of the Social Security A ct( 4 2 U .S.C. 1 3 9 6 a(a)(10)(E)(iv)) is amended by striking ‘ ‘December 2009’’ and inserting ‘‘December 2010’’. (b) EXTEN D IN G TOTA L A M O U NT AVAILA B LE FO R ALLOCATION.— Section 1933(g) of such Act (42 U.S.C. 1396u – 3(g)) is amended— (1) in paragraph (2)— (A) by striking ‘‘and’’ at the end of subparagraph ( K ) ( B ) in subparagraph ( L ), by striking the period at the end and inserting a semicolon; and (C) by adding at the end the follo w ing new subpara- graphs ‘‘( M ) for the period that begins on January 1, 2010, and ends on September 30, 2010, the total allocation amount is $ 412, 5 00,000; and ‘‘( N ) for the period that begins on O ctober 1, 2010, and ends on December 31, 2010, the total allocation amount is $150,000,000.’’; and (2) in paragraph (3), in the matter preceding subparagraph (A), by striking ‘‘or (L)’’ and inserting ‘‘(L), or (N)’’. SEC. 500 6 . PROTECTIONS FOR INDIANS UNDER MEDICAID AND CHIP. (a) P REMIUMS AND COST S H ARING PROTECTION UNDER MED- ICAID.— (1) I N GENERAL.—Section 1916 of the Social Security Act (42 U.S.C. 1396o) is amended— (A) in subsection (a), in the matter preceding paragraph (1), by striking ‘‘and (i)’’ and inserting ‘‘, (i), and ( j )’’; and (B) by adding at the end the following new subsection: ‘‘(j) NO PREMIUMS OR COST SHARING FOR INDIANS F URNISHED ITEMS OR SERVICES DIRECTL Y BY INDIAN H EALTH PROGRAMS OR THROUGH R EFERRAL UNDER CONTRACT HEALTH SERVICES.— ‘‘(1) NO COST SHARING FOR ITEMS OR SERVICES FURNISHED TO INDIANS THROUGH INDIAN HEALTH P ROGRAMS.— ‘‘(A) IN GENERAL.—No enrollment fee, premium, or similar charge, and no deduction, copayment, cost sharing, or similar charge shall be imposed against an Indian who is furnished an item or service directly by the Indian Health Service, an Indian Tribe, Tribal Organi z ation, or Urban Indian Organization or through referral under contract health services for which payment may be made under this title. ‘‘(B) NO REDUCTION IN AMOUNT OF PAYMENT TO INDIAN HEALTH PROVIDERS.—Payment due under this title to the Indian Health Service, an Indian Tribe, Tribal Organiza- tion, or Urban Indian Organization, or a health care pro- vider through referral under contract health services for the furnishing of an item or service to an Indian who is eligible for assistance under such title, may not be reduced by the amount of any enrollment fee, premium, or similar charge, or any deduction, copayment, cost Timep e r i od. Time period. 42USC1396 r – 6 n o t e.


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 123STA T .506PUBLIC LA W 111 – 5 —FE B.1 7, 200 9sharing,o rsi m i l ar c harg et hat w o u l db e due f rom the I ndian but for the o p eration of subparagraph (A).‘ ‘( 2 ) RULEOFC O NSTR UCT I ON. —N othing in this subsection shall be construed as restricting the application of an y other limitations on the imposition of premiums or cost sharing that may apply to an indi v idual receiving medical assistance under this title who is an Indian. ’ ’. (2) C ONFOR M IN GA MEN D MENT.— S ection 19 1 6 A(b)( 3 ) of such Act ( 4 2 U .S.C. 1396o – 1(b)(3)) is amended— (A) in subparagraph (A), by adding at the end the following new clause ‘‘(vii) An Indian who is furnished an item or service directly by the Indian H ealth Service, an Indian T ribe, Tribal O rgani z ation or Urban Indian Organization or through referral under contract health services.’’ and ( B ) in subparagraph (B), by adding at the end the following new clause: ‘‘( x ) Items and services furnished to an Indian directly by the Indian Health Service, an Indian Tribe, Tribal Organization or Urban Indian Organization or through referral under contract health services.’’. (b) TREATMENT OF CERTAIN P RO P ERT YF ROM RESOURCES FOR M EDICAID AND CHIP E LIGI B ILITY.— (1) MEDICAID.—Section 19 0 2 of the Social Security Act (42 U.S.C. 1396a), as amended by sections 203(c) and 211(a)(1)(A)(ii) of the Children’s Health Insurance Program Reauthorization Act of 2009 (Public L aw 111–3), is amended by adding at the end the following new subsection: ‘‘(ff) Notwithstanding any other re q uirement of this title or any other provision of Federal or State law, a State shall disregard the following property from resources for purposes of determining the eligibility of an individual who is an Indian for medical assist - ance under this title: ‘‘(1) Property, including real property and improvements, that is held in trust, sub j ect to Federal restrictions, or otherwise under the supervision of the Secretary of the Interior, located on a reservation, including any federally recognized Indian Tribe’s reservation, pueblo, or colony, including former reserva- tions in O k lahoma, Alaska Native regions established by the Alaska Native Claims Settlement Act, and Indian allotments on or near a reservation as designated and approved by the Bureau of Indian Affairs of the D epartment of the Interior. ‘‘(2) For any federally recognized Tribe not described in paragraph (1), property located within the most recent bound- aries of a prior Federal reservation. ‘‘(3) Ownership interests in rents, leases, royalties, or usage rights related to natural resources (including extraction of nat- ural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exer- cise of federally protected rights. ‘‘(4) Ownership interests in or usage rights to items not covered by paragraphs (1) through (3) that have unique reli- gious, spiritual, traditional, or cultural significance or rights that support subsistence or a traditional lifestyle according to applicable tribal law or custom.’’. (2) APPLICATION TO C H IP.—Section 210 7 (e)(1) of such Act (42 U.S.C. 1397gg(e)(1)), as amended by sections 203(a)(2),


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 123STA T .507PUBLIC LA W 111 – 5 —FE B. 17 , 200 9203(d) (2), 2 14 ( b ), 5 01(d)(2), an d 503(a)(1) oftheC h il d r en ’sH ealth I ns u ran c e P ro g ra mR eauthori z ation A ct of 200 9 (Public L a w 111 – 3), is amended — (A) b y redesignating sub p aragraphs (C) through (I), as subparagraphs ( D ) through ( J ), respecti v ely and ( B ) by inserting after subparagraph (B), the following new subparagraph

‘(C) S ection 1902(ff) (relating to disregard of certain property for purposes of ma k ing eligibility determina - tions) . ’’. (c) C ONTI N UA TION O F CU R R E NT LA W PROTE C TION S OF CERTAIN IN D IAN PRO P ERT YF RO MM EDICAID E STATE RECO V ERY.—Section 191 7 (b)(3) of the Social Security Act (42 U .S.C. 139 6 p(b)(3)) is amended— (1) by inserting ‘‘(A)’’ after ‘‘(3)’’; and (2) by adding at the end the following new subparagraph: ‘‘(B) T he standards specified by the Secretary under subparagraph (A) shall re q uire that the procedures estab- lished by the State agency under subparagraph (A) e x empt income, resources, and property that are exempt from the application of this subsection as of April 1, 2003, under manual instructions issued to carry out this subsection (as in effect on such date) because of the Federal responsi- bility for Indian Tribes and Alaska N ative V illages. Nothing in this subparagraph shall be construed as preventing the Secretary from providing additional estate recovery exemp- tions under this title for Indians.’’. (d) RU L ES APPLICA B LE UNDER MEDICAID AND C H IP TO MANA G ED CARE ENTITIES W ITH RESPECT TO INDIAN ENROLLEES AND INDIAN HEALTH CARE PROVIDERS AND INDIAN MANAGED CARE ENTITIES.— (1) IN GENERAL.—Section 1932 of the Social Security Act (42 U.S.C. 1396u–2) is amended by adding at the end the following new subsection: ‘‘(h) SPECIAL RULES WITH RESPECT TO INDIAN ENROLLEES, INDIAN HEALTH CARE PROVIDERS, AND INDIAN MANAGED CARE ENTI- TIES.— ‘‘(1) ENROLLEE OPTION TO SELECT AN INDIAN HEALTH CARE PROVIDER AS PRIMARY CARE PROVIDER.—In the case of a non- Indian Medicaid managed care entity that— ‘‘(A) has an Indian enrolled with the entity; and ‘‘(B) has an Indian health care provider that is partici- pating as a primary care provider within the network of the entity, insofar as the Indian is otherwise eligible to receive services from such Indian health care provider and the Indian health care provider has the capacity to provide primary care services to such Indian, the contract with the entity under section 1903(m) or under section 1905(t)(3) shall require, as a condition of receiving payment under such contract, that the Indian shall be allowed to choose such Indian health care provider as the Indian’s primary care provider under the entity. ‘‘(2) ASSURANCE OF PAYMENT TO INDIAN HEALTH CARE PRO- VIDERS FOR PROVISION OF COVERED SERVICES.—Each contract with a managed care entity under section 1903(m) or under section 1905(t)(3) shall require any such entity, as a condition of receiving payment under such contract, to satisfy the fol- lowing requirements:


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 123STA T .508PUBLIC LA W 111 – 5 —FE B.1 7, 200 9‘ ‘ (A)DEMONSTRA T I ONO F A C CESS TO IN D IAN H EA L TH CARE P RO V IDERS AND APPLICATION OF ALTERNATIVE PA Y- MENT ARRAN G EMENTS .—Subject t os ub par a g rap h ( C ) , to— ‘‘( i ) d e m o n strate that the number o fI ndian hea l th care pro v iders that are participating providers w ith respect to such entit y are sufficient to ensure timely access to covered M edicaid managed care services for those Indian enrollees who are eligible to receive serv- ices from such providers and ‘‘(ii) agree to pay Indian health care providers, whether such providers are participating or nonpartici- pating providers with respect to the entity, for covered Medicaid managed care services provided to those Indian enrollees who are eligible to receive services from such providers at a rate e q ual to the rate nego- tiated between such entity and the provider involved or, if such a rate has not been negotiated, at a rate that is not less than the level and amount of payment which the entity would ma k e for the services if the services were furnished by a participating provider which is not an Indian health care provider. T he Secretary shall establish procedures for applying the requirements of clause (i) in States where there are no or few Indian health providers. ‘‘( B ) P ROMPT PAYMENT.—To agree to make prompt pay- ment (consistent with rule for prompt payment of providers under section 1932 (f)) to Indian health care providers that are participating providers with respect to such entity or, in the case of an entity to which subparagraph (A)(ii) or (C) applies, that the entity is required to pay in accord- ance with that subparagraph. ‘‘(C) APPLICATION OF SPECIAL PAYMENT RE QU IREMENTS FOR FEDERALLY-QUALIFIED HEALTH CENTERS AND FOR SERV- ICES PROVIDED B Y CERTAIN INDIAN HEALTH CARE PRO- VIDERS.— ‘‘(i) F EDERALLY-QUALIFIED HEALTH CENTERS.— ‘‘(I) MANAGED CARE ENTITY PAYMENT REQUIRE- MENT.—To agree to pay any Indian health care provider that is a federally-qualified health center under this title but not a participating provider with respect to the entity, for the provision of covered Medicaid managed care services by such provider to an Indian enrollee of the entity at a rate equal to the amount of payment that the entity would pay a federally-qualified health center that is a participating provider with respect to the entity but is not an Indian health care provider for such services. ‘‘(II) CONTINUED APPLICATION OF STATE REQUIREMENT TO MA K E SUPPLEMENTAL PAYMENT.— N othing in subclause (I) or subparagraph (A) or (B) shall be construed as waiving the application of section 19 0 2(bb)( 5 ) regarding the State plan requirement to make any supplemental payment due under such section to a federally-qualified health center for services furnished by such center to an enrollee of a managed care entity (regardless Procedu re s.


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 123STA T .509PUBLIC LA W 111 – 5 —FE B.1 7, 2009 ofwhet he r the fe d er al l y-qu al i fied health c e n ter i s orisnota p articipatin g pro v ider with the entity ).‘ ‘ ( ii) PAYMENTR ATE FO R S ER VIC ES P ROVI D ED B Y CERTAIN INDIAN H EA L TH CARE PROVIDERS. —I f the a m ount paid b y a managed care entity to an Indian health care provider that is not a federally-qualified health center for services provided by the provider to an Indian enrollee with the managed care entity is less than the rate that applies to the provision of such services by the provider under the S tate plan, the plan shall provide for payment to the Indian health care provider, whether the provider is a participating or nonparticipating provider with respect to the entity, of the difference between such applicable rate and the amount paid by the managed care entity to the provider for such services. ‘‘( D ) C ONSTR U CTION.— N othing in this paragraph shall be construed as waiving the application of section 1902 (a)( 3 0)( A ) (relating to application of standards to assure that payments are consistent with efficiency, economy, and quality of care). ‘‘(3) SPECIAL RULE FOR ENROLLMENT FOR INDIAN MANA G ED CARE ENTITIES.— R egarding the application of a M edicaid man- aged care program to Indian Medicaid managed care entities, an Indian Medicaid managed care entity may restrict enroll- ment under such program to Indians in the same manner as Indian H ealth Programs may restrict the delivery of services to Indians. ‘‘( 4 ) DEFINITIONS.— F or purposes of this subsection ‘‘(A) INDIAN HEALTH CARE PROVIDER.— T he term ‘Indian health care provider ’ means an Indian Health Program or an U rban Indian O rgani z ation. ‘‘( B ) INDIAN MEDICAID MANAGED CARE ENTITY.—The term ‘Indian Medicaid managed care entity’ means a man- aged care entity that is controlled (within the meaning of the last sentence of section 1903(m)(1)(C)) by the Indian Health Service, a Tribe, Tribal Organization, or Urban Indian Organization, or a consortium, which may be com- posed of 1 or more Tribes, Tribal Organizations, or Urban Indian Organizations, and which also may include the Service. ‘‘(C) NON-INDIAN MEDICAID MANAGED CARE ENTITY.— The term ‘non-Indian Medicaid managed care entity’ means a managed care entity that is not an Indian Medicaid managed care entity. ‘‘(D) COVERED MEDICAID MANAGED CARE SERVICES.— The term ‘covered Medicaid managed care services’ means, with respect to an individual enrolled with a managed care entity, items and services for which benefits are avail- able with respect to the individual under the contract between the entity and the State involved. ‘‘( E ) MEDICAID MANAGED CARE PROGRAM.—The term ‘Medicaid managed care program’ means a program under sections 1903(m), 190 5 (t), and 1932 and includes a man- aged care program operating under a waiver under section 1915(b) or 1115 or otherwise.’’.


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 123STA T .5 1 0PUBLIC LA W 111 – 5 —FE B.1 7, 200 9(2)AP P LICAT I ON TOC H IP .—Section 2 107 (e)(1) o fsu c h Act ( 4 2 U .S. C . 1 39 7 g g(1)) ,a sa m en d ed by subsection (b)(2), is amended— (A) by r edesignating sub p aragraph ( J ) as subparagraph ( K ) and ( B ) by inserting after subparagraph ( I )thefo l lo w ing new subparagraph

‘(J) Subsections (a)(2)(C) and (h) of section 1932. ’ ’. (e) CON SU LTATION ON MED ICAID, CHIP, AND O THE RH EALTH CARE P RO G RA M S F UNDED UNDER THE SOCIAL SECURIT Y ACT IN V OLVING INDIAN HEALTH PROGRAMS AND UR B AN INDIAN ORGANI Z ATIONS.— (1) CONSULTATION W ITH TRIBAL TECHNICAL ADVISORY GROUP ( TTAG ) .— T he Secretary of Health and Human Ser v ices shall maintain within the Centers for Medicaid & Medicare Services (CMS) a Tribal Technical Advisory G roup (TTAG), which was first established in accordance with re q uirements of the charter dated September 30, 2003, and the Secretary of Health and Human Services shall include in such Group a representative of a national urban Indian health organi z ation and a represent - ative of the Indian Health Service. The inclusion of a represent- ative of a national urban Indian health organization in such Group shall not affect the nonapplication of the Federal Advisory Committee Act ( 5 U.S.C. App.) to such Group. (2) SOLICITATION O F ADVICE UNDER MEDICAID AND CHIP.— (A) MEDICAID STATE PLAN AMENDMENT.—Section 1902(a) of the Social Security Act (42 U.S.C. 139 6 a(a)), as amended by section 501(d)(1) of the Children’s Health Insurance Program R eauthorization Act of 2009 (Public L aw 111 – 3), (42 U.S.C. 1396a(a)) is amended— (i) in paragraph (71), by stri k ing ‘‘and’’ at the end; (ii) in paragraph (72), by striking the period at the end and inserting ‘‘; and’’; and (iii) by inserting after paragraph (72), the following new paragraph: ‘‘(73) in the case of any State in which 1 or more Indian Health Programs or Urban Indian Organizations furnishes health care services, provide for a process under which the State seeks advice on a regular, ongoing basis from designees of such Indian Health Programs and Urban Indian Organiza- tions on matters relating to the application of this title that are likely to have a direct effect on such Indian Health Pro- grams and Urban Indian Organizations and that— ‘‘(A) shall include solicitation of advice prior to submis- sion of any plan amendments, waiver requests, and pro- posals for demonstration pro j ects likely to have a direct effect on Indians, Indian Health Programs, or Urban Indian Organizations; and ‘‘(B) may include appointment of an advisory committee and of a designee of such Indian Health Programs and Urban Indian Organizations to the medical care advisory committee advising the State on its State plan under this title.’’. (B) APPLICATION TO CHIP.—Section 2107(e)(1) of such Act (42 U.S.C. 1397gg(1)), as amended by subsections (b)(2) and (d) (2), is amended— Establi s hmen t .42USC13 2 0 b – 24.


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 123STA T .5 11 PUBLIC LA W 111 – 5 —FE B.1 7, 2 0 0 9(i)byred e s i gnat ing s u b p aragrap h s( B ) , ( C ),( D ), ( E ),( F ),( G ),( H ),( I ),( J ),and( K ) as subparagraphs (D), (F), (B), (E), (G), (I), (H), (J), (K), and ( L ), respe c- ti v e l y (ii) by mo ving such subparagraphs so as to appear in alphabetical order; and (iii) by inserting a f ter subparagraph (B) (as so redesiganted and moved) the follo w ing new subpara- graph

‘(C) S ection 1902 (a)( 73 ) (relating to re q uiring certain States to see k advice from designees of Indian Health P rograms and U rban Indian O rgani z ations) .’ ’. (3) RULEOFC O NSTR UCT I ON. —N othing in the amendments made by this subsection shall be construed as superseding e x isting advisory committees, working groups, guidance, or other advisory procedures established by the Secretary of Health and Human Services or by any State with respect to the provision of health care to Indians. (f) EFFECTI V ED A TE.— T he amendments made by this section shall take effect on July 1, 2009. SEC.50 0 7 . FUNDI N G F OR O V ERSIG HTA NDI MPL EMENTATION. (a) OVERSI GH T.—For purposes of ensuring the proper expendi- ture of Federal funds under title X IX of the Social Security A ct ( 4 2 U.S.C. 139 6 et seq.), there is appropriated to the Office of the Inspector General of the Department of Health and Human Services, out of any money in the Treasury not otherwise appro- priated and without further appropriation, $ 31,2 5 0,000 for fiscal year 2009, which shall remain available for expenditure until Sep- tember 30, 2011, and shall be in addition to any other amounts appropriated or made available to such Office for such purposes. (b) I MP LEMENTATION OF INCREASE D F M AP.—For purposes of carrying out section 5001, there is appropriated to the Secretary of Health and Human Services, out of any money in the Treasury not otherwise appropriated and without further appropriation, $5,000,000 for fiscal year 2009, which shall remain available for expenditure until September 30, 2011, and shall be in addition to any other amounts appropriated or made available to such Sec- retary for such purposes. SEC. 500 8 . GAO STUD Y AND REPORT REGARDING STATE NEEDS DURING PERIODS OF NATIONAL ECONOMIC DO W NTURN. (a) IN GENERAL.—The Comptroller General of the United States shall study the period of national economic downturn in effect on the date of enactment of this Act, as well as previous periods of national economic downturn since 1974, for the purpose of devel- oping recommendations for addressing the needs of States during such periods. As part of such analysis, the Comptroller General shall study the past and pro j ected effects of temporary increases in the Federal medical assistance percentage under the Medicaid program with respect to such periods. (b) REPORT.—Not later than April 1, 2011, the Comptroller General of the United States shall submit a report to the appro- priate committees of Congress on the results of the study conducted under paragraph (1). Such report shall include the following: (1) Such recommendations as the Comptroller General determines appropriate for modifying the national economic downturn assistance formula for temporary adjustment of the 42USC1396anote. 42 USC 1396a note.