42 U.S.C. § 1395ww — Payments to hospitals for inpatient

Page 3807 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Editorial Notes AMENDMENTS 1982—Subsec. (d). Pub. L. 97–248 redesignated second subsec. (c), relating to hearing to review determina- tion, as subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–248 effective as if originally included as part of this section as this section was en- acted by the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97–35, see section 128(e)(2) of Pub. L. 97–248, set out as a note under section 1395x of this title. EFFECTIVE DATE Pub. L. 97–35, title XXI, § 2101(c), Aug. 13, 1981, 95 Stat. 787, provided that: ‘‘The amendment made by sub- section (a) [enacting this section and amending section 1396b of this title] shall apply only to services furnished by a hospital during any accounting year beginning on or after October 1, 1981.’’ PAYMENTS TO PROMOTE CLOSURE AND CONVERSION OF UNDERUTILIZED HOSPITAL FACILITIES Pub. L. 98–369, div. B, title III, § 2353, July 18, 1984, 98 Stat. 1099, directed Secretary of Health and Human Services to carry out a study and report to Congress prior to Mar. 31, 1985, on modifications required in this section in order to conform the closure and conversion program authorized in that section to the prospective payment system under section 1395ww(d) of this title, so as to provide assistance to hospitals which may have particular problems in converting facilities (or parts thereof) from acute care to less intensive care or in closing facilities (or parts thereof), such report to in- clude recommendations as to how, and whether, imple- mentation of this section as modified may result in re- ductions in total hospital inpatient costs and total ex- penditures under this subchapter, and prohibited from implementing this section prior to Mar. 31, 1985. ESTABLISHMENT AND EVALUATION OF TRANSITIONAL AL- LOWANCES; REPORT AND RECOMMENDATIONS TO CON- GRESS Pub. L. 97–35, title XXI, § 2101(b), Aug. 13, 1981, 95 Stat. 786, prohibited Secretary of Health and Human Services from establishing under this section transitional allow- ances with respect to more than 50 hospitals prior to Jan. 1, 1984, and directed Secretary to evaluate effec- tiveness of program of transitional allowances estab- lished under this section and, not later than Jan. 1, 1983, report to Congress on such evaluation and include in such report such recommendations for such legisla- tive changes as deemed appropriate. § 1395vv. Withholding payments from certain medicaid providers (a) Adjustments by Secretary The Secretary may adjust, in accordance with this section, payments under parts A and B to any institution which has in effect an agree- ment with the Secretary under section 1395cc of this title, and any person who has accepted pay- ment on the basis of an assignment under sec- tion 1395u(b)(3)(B)(ii) of this title, where such in- stitution or person— (1) has (or previously had) in effect an agree- ment with a State agency to furnish medical care and services under a State plan approved under subchapter XIX, and (2) from which (or from whom) such State agency (A) has been unable to recover over- payments made under the State plan, or (B) has been unable to collect the information necessary to enable it to determine the amount (if any) of the overpayments made to such institution or person under the State plan. (b) Implementing regulations; notice, oppor- tunity to be heard, etc. The Secretary shall by regulation provide pro- cedures for implementation of this section, which procedures shall— (1) assure that the authority under this sec- tion is exercised only on behalf of a State agency which demonstrates to the Secretary’s satisfaction that it has provided adequate no- tice of a determination or of a need for infor- mation, and an opportunity to appeal such de- termination or to provide such information, (2) determine the amount of the payment to which the institution or person would other- wise be entitled under this subchapter which shall be treated as a setoff against overpay- ments under subchapter XIX, and (3) assure the restoration to the institution or person of amounts withheld under this sec- tion which are ultimately determined to be in excess of overpayments under subchapter XIX and to which the institution or person would otherwise be entitled under this subchapter. (c) Payment to States of amounts recovered Notwithstanding any other provision of this chapter, from the trust funds established under sections 1395i and 1395t of this title, as appro- priate, the Secretary shall pay to the appro- priate State agency amounts recovered under this section to offset the State agency’s over- payment under subchapter XIX. Such payments shall be accounted for by the State agency as re- coveries of overpayments under the State plan. (Aug. 14, 1935, ch. 531, title XVIII, § 1885, as added Pub. L. 97–35, title XXI, § 2104, Aug. 13, 1981, 95 Stat. 788.) § 1395ww. Payments to hospitals for inpatient hospital services (a) Determination of costs for inpatient hospital services; limitations; exemptions; ‘‘operating costs of inpatient hospital services’’ defined (1)(A)(i) The Secretary, in determining the amount of the payments that may be made under this subchapter with respect to operating costs of inpatient hospital services (as defined in paragraph (4)) shall not recognize as reasonable (in the efficient delivery of health services) costs for the provision of such services by a hos- pital for a cost reporting period to the extent such costs exceed the applicable percentage (as determined under clause (ii)) of the average of such costs for all hospitals in the same grouping as such hospital for comparable time periods. (ii) For purposes of clause (i), the applicable percentage for hospital cost reporting periods beginning— (I) on or after October 1, 1982, and before Oc- tober 1, 1983, is 120 percent; (II) on or after October 1, 1983, and before Oc- tober 1, 1984, is 115 percent; and (III) on or after October 1, 1984, is 110 per- cent. (B)(i) For purposes of subparagraph (A) the Secretary shall establish case mix indexes for Page 3808 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww all short-term hospitals, and shall set limits for each hospital based upon the general mix of types of medical cases with respect to which such hospital provides services for which pay- ment may be made under this subchapter. (ii) The Secretary shall set such limits for a cost reporting period of a hospital— (I) by updating available data for a previous period to the immediate preceding cost report- ing period by the estimated average rate of change of hospital costs industry-wide, and (II) by projecting for the cost reporting pe- riod by the applicable percentage increase (as defined in subsection (b)(3)(B)). (C) The limitation established under subpara- graph (A) for any hospital shall in no event be lower than the allowable operating costs of in- patient hospital services (as defined in para- graph (4)) recognized under this subchapter for such hospital for such hospital’s last cost re- porting period prior to the hospital’s first cost reporting period for which this section is in ef- fect. (D) Subparagraph (A) shall not apply to cost reporting periods beginning on or after October 1, 1983. (2) The Secretary shall provide for such ex- emptions from, and exceptions and adjustments to, the limitation established under paragraph (1)(A) as he deems appropriate, including those which he deems necessary to take into ac- count— (A) the special needs of sole community hos- pitals, of new hospitals, of risk based health maintenance organizations, and of hospitals which provide atypical services or essential community services, and to take into account extraordinary circumstances beyond the hos- pital’s control, medical and paramedical edu- cation costs, significantly fluctuating popu- lation in the service area of the hospital, and unusual labor costs, (B) the special needs of psychiatric hospitals and of public or other hospitals that serve a significantly disproportionate number of pa- tients who have low income or are entitled to benefits under part A of this subchapter, and (C) a decrease in the inpatient hospital serv- ices that a hospital provides and that are cus- tomarily provided directly by similar hos- pitals which results in a significant distortion in the operating costs of inpatient hospital services. (3) The limitation established under paragraph (1)(A) shall not apply with respect to any hos- pital which— (A) is located outside of a standard metro- politan statistical area, and (B)(i) has less than 50 beds, and (ii) was in operation and had less than 50 beds on September 3, 1982. (4) For purposes of this section, the term ‘‘op- erating costs of inpatient hospital services’’ in- cludes all routine operating costs, ancillary service operating costs, and special care unit op- erating costs with respect to inpatient hospital services as such costs are determined on an av- erage per admission or per discharge basis (as determined by the Secretary), and includes the costs of all services for which payment may be made under this subchapter that are provided by the hospital (or by an entity wholly owned or operated by the hospital) to the patient during the 3 days (or, in the case of a hospital that is not a subsection (d) hospital, during the 1 day) immediately preceding the date of the patient’s admission if such services are diagnostic serv- ices (including clinical diagnostic laboratory tests) or are other services related to the admis- sion (as defined by the Secretary). Such term does not include costs of approved educational activities, a return on equity capital, other cap- ital-related costs (as defined by the Secretary for periods before October 1, 1987), for cost re- porting periods beginning on or after October 1, 2020, costs related to hematopoietic stem cell ac- quisition for the purpose of an allogeneic hematopoietic stem cell transplant (as described in subsection (d)(5)(M)), or costs with respect to administering blood clotting factors to individ- uals with hemophilia. In applying the first sen- tence of this paragraph, the term ‘‘other serv- ices related to the admission’’ includes all serv- ices that are not diagnostic services (other than ambulance and maintenance renal dialysis serv- ices) for which payment may be made under this subchapter that are provided by a hospital (or an entity wholly owned or operated by the hos- pital) to a patient— (A) on the date of the patient’s inpatient ad- mission; or (B) during the 3 days (or, in the case of a hospital that is not a subsection (d) hospital, during the 1 day) immediately preceding the date of such admission unless the hospital demonstrates (in a form and manner, and at a time, specified by the Secretary) that such services are not related (as determined by the Secretary) to such admission. (b) Computation of payment; definitions; exemp- tions; adjustments (1) Notwithstanding section 1395f(b) of this title but subject to the provisions of section 1395e of this title, if the operating costs of inpa- tient hospital services (as defined in subsection (a)(4)) of a hospital (other than a subsection (d) hospital, as defined in subsection (d)(1)(B) and other than a rehabilitation facility described in subsection (j)(1)) for a cost reporting period sub- ject to this paragraph— (A) are less than or equal to the target amount (as defined in paragraph (3)) for that hospital for that period, the amount of the payment with respect to such operating costs payable under part A on a per discharge or per admission basis (as the case may be) shall be equal to the amount of such operating costs, plus— (i) 15 percent of the amount by which the target amount exceeds the amount of the op- erating costs, or (ii) 2 percent of the target amount, whichever is less; (B) are greater than the target amount but do not exceed 110 percent of the target amount, the amount of the payment with re- spect to those operating costs payable under part A on a per discharge basis shall equal the target amount; or (C) are greater than 110 percent of the target amount, the amount of the payment with re- Page 3809 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww spect to such operating costs payable under part A on a per discharge or per admission basis (as the case may be) shall be equal to (i) the target amount, plus (ii) in the case of cost reporting periods beginning on or after Octo- ber 1, 1991, an additional amount equal to 50 percent of the amount by which the operating costs exceed 110 percent of the target amount (except that such additional amount may not exceed 10 percent of the target amount) after any exceptions or adjustments are made to such target amount for the cost reporting pe- riod; plus the amount, if any, provided under para- graph (2), except that in no case may the amount payable under this subchapter (other than on the basis of a DRG prospective payment rate determined under subsection (d)) with re- spect to operating costs of inpatient hospital services exceed the maximum amount payable with respect to such costs pursuant to sub- section (a). (2)(A) Except as provided in subparagraph (E), in addition to the payment computed under paragraph (1), in the case of an eligible hospital (described in subparagraph (B)) for a cost report- ing period beginning on or after October 1, 1997, the amount of payment on a per discharge basis under paragraph (1) shall be increased by the lesser of— (i) 50 percent of the amount by which the op- erating costs are less than the expected costs (as defined in subparagraph (D)) for the period; or (ii) 1 percent of the target amount for the period. (B) For purposes of this paragraph, an ‘‘eligi- ble hospital’’ means with respect to a cost re- porting period, a hospital— (i) that has received payments under this subsection for at least 3 full cost reporting pe- riods before that cost reporting period, and (ii) whose operating costs for the period are less than the least of its target amount, its trended costs (as defined in subparagraph (C)), or its expected costs (as defined in subpara- graph (D)) for the period. (C) For purposes of subparagraph (B)(ii), the term ‘‘trended costs’’ means for a hospital cost reporting period ending in a fiscal year— (i) in the case of a hospital for which its cost reporting period ending in fiscal year 1996 was its third or subsequent full cost reporting pe- riod for which it receives payments under this subsection, the lesser of the operating costs or target amount for that hospital for its cost re- porting period ending in fiscal year 1996, or (ii) in the case of any other hospital, the op- erating costs for that hospital for its third full cost reporting period for which it receives pay- ments under this subsection, increased (in a compounded manner) for each succeeding fiscal year (through the fiscal year involved) by the market basket percentage in- crease for the fiscal year. (D) For purposes of this paragraph, the term ‘‘expected costs’’, with respect to the cost re- porting period ending in a fiscal year, means the lesser of the operating costs of inpatient hos- pital services or target amount per discharge for the previous cost reporting period updated by the market basket percentage increase (as de- fined in paragraph (3)(B)(iii)) for the fiscal year. (E)(i) In the case of an eligible hospital that is a hospital or unit that is within a class of hos- pital described in clause (ii) with a 12-month cost reporting period beginning before November 29, 1999, in determining the amount of the in- crease under subparagraph (A), the Secretary shall substitute for the percentage of the target amount applicable under subparagraph (A)(ii)— (I) for a cost reporting period beginning on or after October 1, 2000, and before September 30, 2001, 1.5 percent; and (II) for a cost reporting period beginning on or after October 1, 2001, and before September 30, 2002, 2 percent. (ii) For purposes of clause (i), each of the fol- lowing shall be treated as a separate class of hospital: (I) Hospitals described in clause (i) of sub- section (d)(1)(B) and psychiatric units de- scribed in the matter following clause (v) of such subsection. (II) Hospitals described in clause (iv) of such subsection. (3)(A) Except as provided in subparagraph (C) and succeeding subparagraphs, and in paragraph (7)(A)(ii), for purposes of this subsection, the term ‘‘target amount’’ means, with respect to a hospital for a particular 12-month cost reporting period— (i) in the case of the first such reporting pe- riod for which this subsection is in effect, the allowable operating costs of inpatient hospital services (as defined in subsection (a)(4)) recog- nized under this subchapter for such hospital for the preceding 12-month cost reporting pe- riod, and (ii) in the case of a later reporting period, the target amount for the preceding 12-month cost reporting period, increased by the applicable percentage increase under subparagraph (B) for that particular cost reporting period. (B)(i) For purposes of subsection (d) and sub- section (j) for discharges occurring during a fis- cal year, the ‘‘applicable percentage increase’’ shall be— (I) for fiscal year 1986, 1⁄2 percent, (II) for fiscal year 1987, 1.15 percent, (III) for fiscal year 1988, 3.0 percent for hos- pitals located in a rural area, 1.5 percent for hospitals located in a large urban area (as de- fined in subsection (d)(2)(D)), and 1.0 percent for hospitals located in other urban areas, (IV) for fiscal year 1989, the market basket percentage increase minus 1.5 percentage points for hospitals located in a rural area, the market basket percentage increase minus 2.0 percentage points for hospitals located in a large urban area, and the market basket per- centage increase minus 2.5 percentage points for hospitals located in other urban areas, (V) for fiscal year 1990, the market basket percentage increase plus 4.22 percentage points for hospitals located in a rural area, the mar- ket basket percentage increase plus 0.12 per- centage points for hospitals located in a large Page 3810 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 1 So in original. Probably should be followed by ‘‘percentage point’’. 2 So in original. The semicolon probably should be a comma. urban area, and the market basket percentage increase minus 0.53 percentage points for hos- pitals located in other urban areas, (VI) for fiscal year 1991, the market basket percentage increase minus 2.0 percentage points for hospitals in a large urban or other urban area, and the market basket percentage increase minus 0.7 percentage point for hos- pitals located in a rural area, (VII) for fiscal year 1992, the market basket percentage increase minus 1.6 percentage points for hospitals in a large urban or other urban area, and the market basket percentage increase minus 0.6 percentage point for hos- pitals located in a rural area, (VIII) for fiscal year 1993, the market basket percentage increase minus 1.55 percentage point for hospitals in a large urban or other urban area, and the market basket percentage increase minus 0.55 1 for hospitals located in a rural area, (IX) for fiscal year 1994, the market basket percentage increase minus 2.5 percentage points for hospitals located in a large urban or other urban area, and the market basket per- centage increase minus 1.0 percentage point for hospitals located in a rural area, (X) for fiscal year 1995, the market basket percentage increase minus 2.5 percentage points for hospitals located in a large urban or other urban area, and such percentage in- crease for hospitals located in a rural area as will provide for the average standardized amount determined under subsection (d)(3)(A) for hospitals located in a rural area being equal to such average standardized amount for hospitals located in an urban area (other than a large urban area), (XI) for fiscal year 1996, the market basket percentage increase minus 2.0 percentage points for hospitals in all areas, (XII) for fiscal year 1997, the market basket percentage increase minus 0.5 percentage point for hospitals in all areas, (XIII) for fiscal year 1998, 0 percent, (XIV) for fiscal year 1999, the market basket percentage increase minus 1.9 percentage points for hospitals in all areas, (XV) for fiscal year 2000, the market basket percentage increase minus 1.8 percentage points for hospitals in all areas, (XVI) for fiscal year 2001, the market basket percentage increase for hospitals in all areas, (XVII) for fiscal year 2002, the market bas- ket percentage increase minus 0.55 percentage points for hospitals in all areas, (XVIII) for fiscal year 2003, the market bas- ket percentage increase minus 0.55 percentage points for hospitals in all areas, (XIX) for each of fiscal years 2004 through 2006, subject to clause (vii), the market basket percentage increase for hospitals in all areas; 2 and (XX) for each subsequent fiscal year, subject to clauses (viii), (ix), (xi), and (xii), the market basket percentage increase for hospitals in all areas. (ii) For purposes of subparagraphs (A) and (E), the ‘‘applicable percentage increase’’ for 12- month cost reporting periods beginning during— (I) fiscal year 1986, is 0.5 percent, (II) fiscal year 1987, is 1.15 percent, (III) fiscal year 1988, is the market basket percentage increase minus 2.0 percentage points, (IV) a subsequent fiscal year ending on or before September 30, 1993, is the market bas- ket percentage increase, (V) fiscal years 1994 through 1997, is the mar- ket basket percentage increase minus the ap- plicable reduction (as defined in clause (v)(II)), or in the case of a hospital for a fiscal year for which the hospital’s update adjustment per- centage (as defined in clause (v)(I)) is at least 10 percent, the market basket percentage in- crease, (VI) for fiscal year 1998, is 0 percent, (VII) for fiscal years 1999 through 2002, is the applicable update factor specified under clause (vi) for the fiscal year, and (VIII) subsequent fiscal years is the market basket percentage increase. (iii) For purposes of this subparagraph, the term ‘‘market basket percentage increase’’ means, with respect to cost reporting periods and discharges occurring in a fiscal year, the percentage, estimated by the Secretary before the beginning of the period or fiscal year, by which the cost of the mix of goods and services (including personnel costs but excluding nonop- erating costs) comprising routine, ancillary, and special care unit inpatient hospital services, based on an index of appropriately weighted in- dicators of changes in wages and prices which are representative of the mix of goods and serv- ices included in such inpatient hospital services, for the period or fiscal year will exceed the cost of such mix of goods and services for the pre- ceding 12-month cost reporting period or fiscal year. (iv) For purposes of subparagraphs (C) and (D), the ‘‘applicable percentage increase’’ is— (I) for 12-month cost reporting periods begin- ning during fiscal years 1986 through 1993, the applicable percentage increase specified in clause (ii), (II) for fiscal year 1994, the market basket percentage increase minus 2.3 percentage points (adjusted to exclude any portion of a cost reporting period beginning during fiscal year 1993 for which the applicable percentage increase is determined under subparagraph (I)), (III) for fiscal year 1995, the market basket percentage increase minus 2.2 percentage points, and (IV) for fiscal year 1996 and each subsequent fiscal year, the applicable percentage increase under clause (i). (v) For purposes of clause (ii)(V)— (I) a hospital’s ‘‘update adjustment percent- age’’ for a fiscal year is the percentage by which the hospital’s allowable operating costs of inpatient hospital services recognized under this subchapter for the cost reporting period beginning in fiscal year 1990 exceeds the hos- pital’s target amount (as determined under Page 3811 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww subparagraph (A)) for such cost reporting pe- riod, increased for each fiscal year (beginning with fiscal year 1994) by the sum of any of the hospital’s applicable reductions under sub- clause (V) for previous fiscal years; and (II) the ‘‘applicable reduction’’ with respect to a hospital for a fiscal year is the lesser of 1 percentage point or the percentage point dif- ference between 10 percent and the hospital’s update adjustment percentage for the fiscal year. (vi) For purposes of clause (ii)(VII) for a fiscal year, if a hospital’s allowable operating costs of inpatient hospital services recognized under this subchapter for the most recent cost reporting period for which information is available— (I) is equal to, or exceeds, 110 percent of the hospital’s target amount (as determined under subparagraph (A)) for such cost reporting pe- riod, the applicable update factor specified under this clause is the market basket per- centage; (II) exceeds 100 percent, but is less than 110 percent, of such target amount for the hos- pital, the applicable update factor specified under this clause is 0 percent or, if greater, the market basket percentage minus 0.25 percent- age points for each percentage point by which such allowable operating costs (expressed as a percentage of such target amount) is less than 110 percent of such target amount; (III) is equal to, or less than 100 percent, but exceeds 2⁄3 of such target amount for the hos- pital, the applicable update factor specified under this clause is 0 percent or, if greater, the market basket percentage minus 2.5 percent- age points; or (IV) does not exceed 2⁄3 of such target amount for the hospital, the applicable update factor specified under this clause is 0 percent. (vii)(I) For purposes of clause (i)(XIX) for fis- cal years 2005 and 2006, in a case of a subsection (d) hospital that does not submit data to the Secretary in accordance with subclause (II) with respect to such a fiscal year, the applicable per- centage increase under such clause for such fis- cal year shall be reduced by 0.4 percentage points. Such reduction shall apply only with re- spect to the fiscal year involved, and the Sec- retary shall not take into account such reduc- tion in computing the applicable percentage in- crease under clause (i)(XIX) for a subsequent fis- cal year. (II) For fiscal years 2005 and 2006, each sub- section (d) hospital shall submit to the Sec- retary quality data (for a set of 10 indicators es- tablished by the Secretary as of November 1, 2003) that relate to the quality of care furnished by the hospital in inpatient settings in a form and manner, and at a time, specified by the Sec- retary for purposes of this clause, but with re- spect to fiscal year 2005, the Secretary shall pro- vide for a 30-day grace period for the submission of data by a hospital. (viii)(I) For purposes of clause (i) for fiscal year 2007 and each subsequent fiscal year, in the case of a subsection (d) hospital that does not submit, to the Secretary in accordance with this clause, data required to be submitted on meas- ures selected under this clause with respect to such a fiscal year, the applicable percentage in- crease under clause (i) for such fiscal year shall be reduced by 2.0 percentage points (or, begin- ning with fiscal year 2015, by one-quarter of such applicable percentage increase (determined without regard to clause (ix), (xi), or (xii))). Such reduction shall apply only with respect to the fiscal year involved and the Secretary shall not take into account such reduction in com- puting the applicable percentage increase under clause (i) for a subsequent fiscal year, and the Secretary and the Medicare Payment Advisory Commission shall carry out the requirements under section 5001(b) of the Deficit Reduction Act of 2005. (II) Each subsection (d) hospital shall submit data on measures selected under this clause to the Secretary in a form and manner, and at a time, specified by the Secretary for purposes of this clause. The Secretary may require hospitals to submit data on measures that are not used for the determination of value-based incentive payments under subsection (o). (III) The Secretary shall expand, beyond the measures specified under clause (vii)(II) and con- sistent with the succeeding subclauses, the set of measures that the Secretary determines to be appropriate for the measurement of the quality of care (including medication errors) furnished by hospitals in inpatient settings. (IV) Effective for payments beginning with fis- cal year 2007, in expanding the number of meas- ures under subclause (III), the Secretary shall begin to adopt the baseline set of performance measures as set forth in the November 2005 re- port by the Institute of Medicine of the National Academy of Sciences under section 238(b) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. (V) Effective for payments for fiscal years 2008 through 2012, the Secretary shall add other measures that reflect consensus among affected parties and, to the extent feasible and prac- ticable, shall include measures set forth by one or more national consensus building entities. (VI) For purposes of this clause and clause (vii), the Secretary may replace any measures or indicators in appropriate cases, such as where all hospitals are effectively in compliance or the measures or indicators have been subsequently shown not to represent the best clinical prac- tice. (VII) The Secretary shall establish procedures for making information regarding measures sub- mitted under this clause available to the public. Such procedures shall ensure that a hospital has the opportunity to review the data that are to be made public with respect to the hospital prior to such data being made public. The Secretary shall report quality measures of process, struc- ture, outcome, patients’ perspectives on care, ef- ficiency, and costs of care that relate to services furnished in inpatient settings in hospitals on the Internet website of the Centers for Medicare & Medicaid Services. (VIII) Effective for payments beginning with fiscal year 2013, with respect to quality meas- ures for outcomes of care, the Secretary shall provide for such risk adjustment as the Sec- retary determines to be appropriate to maintain incentives for hospitals to treat patients with severe illnesses or conditions. Page 3812 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (IX)(aa) Subject to item (bb), effective for pay- ments beginning with fiscal year 2013, each measure specified by the Secretary under this clause shall be endorsed by the entity with a contract under section 1395aaa(a) of this title. (bb) In the case of a specified area or medical topic determined appropriate by the Secretary for which a feasible and practical measure has not been endorsed by the entity with a contract under section 1395aaa(a) of this title, the Sec- retary may specify a measure that is not so en- dorsed as long as due consideration is given to measures that have been endorsed or adopted by a consensus organization identified by the Sec- retary. (X) To the extent practicable, the Secretary shall, with input from consensus organizations and other stakeholders, take steps to ensure that the measures specified by the Secretary under this clause are coordinated and aligned with quality measures applicable to— (aa) physicians under section 1395w–4(k) of this title; and (bb) other providers of services and suppliers under this subchapter. (XI) The Secretary shall establish a process to validate measures specified under this clause as appropriate. Such process shall include the au- diting of a number of randomly selected hos- pitals sufficient to ensure validity of the report- ing program under this clause as a whole and shall provide a hospital with an opportunity to appeal the validation of measures reported by such hospital. (XII)(aa) With respect to a Hospital Consumer Assessment of Healthcare Providers and Sys- tems survey (or a successor survey) conducted on or after January 1, 2020, such survey may not include questions about communication by hos- pital staff with an individual about such individ- ual’s pain unless such questions take into ac- count, as applicable, whether an individual expe- riencing pain was informed about risks associ- ated with the use of opioids and about non- opioid alternatives for the treatment of pain. (bb) The Secretary shall not include on the Hospital Compare internet website any meas- ures based on the questions appearing on the Hospital Consumer Assessment of Healthcare Providers and Systems survey in 2018 or 2019 about communication by hospital staff with an individual about such individual’s pain. (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)) that is not a meaningful EHR user (as de- fined in subsection (n)(3)) for an EHR reporting period for such fiscal year, three-quarters of the applicable percentage increase otherwise appli- cable under clause (i) (determined without re- gard to clause (viii), (xi), or (xii)) for such fiscal year shall be reduced by 331⁄3 percent for fiscal year 2015, 662⁄3 percent for fiscal year 2016, and 100 percent for fiscal year 2017 and each subse- quent 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 percent- age increase under clause (i) for a subsequent fiscal year. (II) The Secretary may, on a case-by-case basis (and, with respect to the application of subclause (I) for fiscal year 2017, for categories of subsection (d) hospitals, as established by the Secretary and posted on the Internet website of the Centers for Medicare & Medicaid Services prior to December 15, 2015, an application for which must be submitted to the Secretary by not later than April 1, 2016), exempt an eligible hospital from the application of subclause (I) with respect to a fiscal year if the Secretary de- termines, subject to annual renewal, that re- quiring 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 Inter- net access. The Secretary shall exempt an eligi- ble hospital from the application of the payment adjustment under subclause (I) with respect to a fiscal year, subject to annual renewal, if the Secretary determines that compliance with the requirement for being a meaningful EHR user is not possible because the certified EHR tech- nology used by such hospital is decertified under a program kept or recognized pursuant to sec- tion 300jj–11(c)(5) of this title. In no case may a hospital be granted an exemption under this subclause for more than 5 years. (III) For fiscal year 2015 and each subsequent fiscal year, a State in which hospitals are paid for services under section 1395f(b)(3) of this title 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 aggre- gate reduction in payments to hospitals in the State that is equivalent to the aggregate reduc- tion that would have occurred if payments had been reduced to each subsection (d) hospital in the State in a manner comparable to the reduc- tion under the previous provisions of this clause. The State shall report to the Secretary the methodology it will use to make the payment adjustment under the previous sentence. (IV) 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. (x)(I) The Secretary shall develop standard Internet website reports tailored to meet the needs of various stakeholders such as hospitals, patients, researchers, and policymakers. The Secretary shall seek input from such stake- holders in determining the type of information that is useful and the formats that best facili- tate the use of the information. (II) The Secretary shall modify the Hospital Compare Internet website to make the use and navigation of that website readily available to individuals accessing it. (xi)(I) For 2012 and each subsequent fiscal year, after determining the applicable percent- age increase described in clause (i) and after ap- plication of clauses (viii) and (ix), such percent- age increase shall be reduced by the produc- tivity adjustment described in subclause (II). (II) The productivity adjustment described in this subclause, with respect to a percentage, fac- tor, or update for a fiscal year, year, cost report- ing period, or other annual period, is a produc- tivity adjustment equal to the 10-year moving average of changes in annual economy-wide pri- vate nonfarm business multi-factor productivity Page 3813 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (as projected by the Secretary for the 10-year pe- riod ending with the applicable fiscal year, year, cost reporting period, or other annual period). (III) The application of subclause (I) may re- sult in the applicable percentage increase de- scribed in clause (i) being less than 0.0 for a fis- cal year, and may result in payment rates under this section for a fiscal year being less than such payment rates for the preceding fiscal year. (xii) After determining the applicable percent- age increase described in clause (i), and after ap- plication of clauses (viii), (ix), and (xi), the Sec- retary shall reduce such applicable percentage increase— (I) for each of fiscal years 2010 and 2011, by 0.25 percentage point; (II) for each of fiscal years 2012 and 2013, by 0.1 percentage point; (III) for fiscal year 2014, by 0.3 percentage point; (IV) for each of fiscal years 2015 and 2016, by 0.2 percentage point; and (V) for each of fiscal years 2017, 2018, and 2019, by 0.75 percentage point. The application of this clause may result in the applicable percentage increase described in clause (i) being less than 0.0 for a fiscal year, and may result in payment rates under this sec- tion for a fiscal year being less than such pay- ment rates for the preceding fiscal year. (C) In the case of a hospital that is a sole com- munity hospital (as defined in subsection (d)(5)(D)(iii)), subject to subparagraphs (I) and (L), the term ‘‘target amount’’ means— (i) with respect to the first 12-month cost re- porting period in which this subparagraph is applied to the hospital— (I) the allowable operating costs of inpa- tient hospital services (as defined in sub- section (a)(4)) recognized under this sub- chapter for the hospital for the 12-month cost reporting period (in this subparagraph referred to as the ‘‘base cost reporting pe- riod’’) preceding the first cost reporting pe- riod for which this subsection was in effect with respect to such hospital, increased (in a compounded manner) by— (II) the applicable percentage increases ap- plied to such hospital under this paragraph for cost reporting periods after the base cost reporting period and up to and including such first 12-month cost reporting period, (ii) with respect to a later cost reporting pe- riod beginning before fiscal year 1994, the tar- get amount for the preceding 12-month cost reporting period, increased by the applicable percentage increase under subparagraph (B)(iv) for discharges occurring in the fiscal year in which that later cost reporting period begins, (iii) with respect to discharges occurring in fiscal year 1994, the target amount for the cost reporting period beginning in fiscal year 1993 increased by the applicable percentage in- crease under subparagraph (B)(iv), or (iv) with respect to discharges occurring in fiscal year 1995 and each subsequent fiscal year, the target amount for the preceding year increased by the applicable percentage in- crease under subparagraph (B)(iv). There shall be substituted for the base cost re- porting period described in clause (i) a hospital’s cost reporting period (if any) beginning during fiscal year 1987 if such substitution results in an increase in the target amount for the hospital. (D) For cost reporting periods ending on or be- fore September 30, 1994, and for discharges oc- curring on or after October 1, 1997, and before April 1, 2025, in the case of a hospital that is a medicare-dependent, small rural hospital (as de- fined in subsection (d)(5)(G)), subject to subpara- graph (K), the term ‘‘target amount’’ means— (i) with respect to the first 12-month cost re- porting period in which this subparagraph is applied to the hospital— (I) the allowable operating costs of inpa- tient hospital services (as defined in sub- section (a)(4)) recognized under this sub- chapter for the hospital for the 12-month cost reporting period (in this subparagraph referred to as the ‘‘base cost reporting pe- riod’’) preceding the first cost reporting pe- riod for which this subsection was in effect with respect to such hospital, increased (in a compounded manner) by— (II) the applicable percentage increases ap- plied to such hospital under this paragraph for cost reporting periods after the base cost reporting period and up to and including such first 12-month cost reporting period, or (ii) with respect to a later cost reporting pe- riod beginning before fiscal year 1994, the tar- get amount for the preceding 12-month cost reporting period, increased by the applicable percentage increase under subparagraph (B)(iv) for discharges occurring in the fiscal year in which that later cost reporting period begins, (iii) with respect to discharges occurring in fiscal year 1994, the target amount for the cost reporting period beginning in fiscal year 1993 increased by the applicable percentage in- crease under subparagraph (B)(iv), and (iv) with respect to discharges occurring during fiscal year 1998 through fiscal year 2024 and the portion of fiscal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, the target amount for the preceding year in- creased by the applicable percentage increase under subparagraph (B)(iv). There shall be substituted for the base cost re- porting period described in clause (i) a hospital’s cost reporting period (if any) beginning during fiscal year 1987 if such substitution results in an increase in the target amount for the hospital. (E) In the case of a hospital described in clause (v) of subsection (d)(1)(B), the term ‘‘target amount’’ means— (i) with respect to the first 12-month cost re- porting period in which this subparagraph is applied to the hospital— (I) the allowable operating costs of inpa- tient hospital services (as defined in sub- section (a)(4)) recognized under this sub- chapter for the hospital for the 12-month cost reporting period (in this subparagraph referred to as the ‘‘base cost reporting pe- riod’’) preceding the first cost reporting pe- riod for which this subsection was in effect with respect to such hospital, increased (in a compounded manner) by— Page 3814 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (II) the sum of the applicable percentage increases applied to such hospital under this paragraph for cost reporting periods after the base cost reporting period and up to and including such first 12-month cost reporting period, or (ii) with respect to a later cost reporting pe- riod, the target amount for the preceding 12- month cost reporting period, increased by the applicable percentage increase under subpara- graph (B)(ii) for that later cost reporting pe- riod. There shall be substituted for the base cost re- porting period described in clause (i) a hospital’s cost reporting period (if any) beginning during fiscal year 1987 if such substitution results in an increase in the target amount for the hospital. (F)(i) In the case of a hospital (or unit de- scribed in the matter following clause (v) of sub- section (d)(1)(B)) that received payment under this subsection for inpatient hospital services furnished during cost reporting periods begin- ning before October 1, 1990, that is within a class of hospital described in clause (iii), and that elects (in a form and manner determined by the Secretary) this subparagraph to apply to the hospital, the target amount for the hospital’s 12- month cost reporting period beginning during fiscal year 1998 is equal to the average described in clause (ii). (ii) The average described in this clause for a hospital or unit shall be determined by the Sec- retary as follows: (I) The Secretary shall determine the allow- able operating costs for inpatient hospital services for the hospital or unit for each of the 5 cost reporting periods for which the Sec- retary has the most recent settled cost reports as of August 5, 1997. (II) The Secretary shall increase the amount determined under subclause (I) for each cost reporting period by the applicable percentage increase under subparagraph (B)(ii) for each subsequent cost reporting period up to the cost reporting period described in clause (i). (III) The Secretary shall identify among such 5 cost reporting periods the cost report- ing periods for which the amount determined under subclause (II) is the highest, and the lowest. (IV) The Secretary shall compute the aver- ages of the amounts determined under sub- clause (II) for the 3 cost reporting periods not identified under subclause (III). (iii) For purposes of this subparagraph, each of the following shall be treated as a separate class of hospital: (I) Hospitals described in clause (i) of sub- section (d)(1)(B) and psychiatric units de- scribed in the matter following clause (v) of such subsection. (II) Hospitals described in clause (ii) of such subsection and rehabilitation units described in the matter following clause (v) of such sub- section. (III) Hospitals described in clause (iii) of such subsection. (IV) Hospitals described in clause (iv) of such subsection. (V) Hospitals described in clause (v) of such subsection. (G)(i) In the case of a qualified long-term care hospital (as defined in clause (ii)) that elects (in a form and manner determined by the Sec- retary) this subparagraph to apply to the hos- pital, the target amount for the hospital’s 12- month cost reporting period beginning during fiscal year 1998 is equal to the allowable oper- ating costs of inpatient hospital services (as de- fined in subsection (a)(4)) recognized under this subchapter for the hospital for the 12-month cost reporting period beginning during fiscal year 1996, increased by the applicable percentage increase for the cost reporting period beginning during fiscal year 1997. (ii) In clause (i), a ‘‘qualified long-term care hospital’’ means, with respect to a cost report- ing period, a hospital described in clause (iv) of subsection (d)(1)(B) during each of the 2 cost re- porting periods for which the Secretary has the most recent settled cost reports as of August 5, 1997, for each of which— (I) the hospital’s allowable operating costs of inpatient hospital services recognized under this subchapter exceeded 115 percent of the hospital’s target amount, and (II) the hospital would have a dispropor- tionate patient percentage of at least 70 per- cent (as determined by the Secretary under subsection (d)(5)(F)(vi)) if the hospital were a subsection (d) hospital. (H)(i) In the case of a hospital or unit that is within a class of hospital described in clause (iv), for a cost reporting period beginning during fiscal years 1998 through 2002, the target amount for such a hospital or unit may not exceed the amount as updated up to or for such cost report- ing period under clause (ii). (ii)(I) In the case of a hospital or unit that is within a class of hospital described in clause (iv), the Secretary shall estimate the 75th per- centile of the target amounts for such hospitals within such class for cost reporting periods end- ing during fiscal year 1996, as adjusted under clause (iii). (II) The Secretary shall update the amount de- termined under subclause (I), for each cost re- porting period after the cost reporting period de- scribed in such subclause and up to the first cost reporting period beginning on or after October 1, 1997, by a factor equal to the market basket per- centage increase. (III) For cost reporting periods beginning dur- ing each of fiscal years 1999 through 2002, subject to subparagraph (J), the Secretary shall update such amount by a factor equal to the market basket percentage increase. (iii) In applying clause (ii)(I) in the case of a hospital or unit, the Secretary shall provide for an appropriate adjustment to the labor-related portion of the amount determined under such subparagraph to take into account differences between average wage-related costs in the area of the hospital and the national average of such costs within the same class of hospital. (iv) For purposes of this subparagraph, each of the following shall be treated as a separate class of hospital: (I) Hospitals described in clause (i) of sub- section (d)(1)(B) and psychiatric units de- scribed in the matter following clause (v) of such subsection. Page 3815 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (II) Hospitals described in clause (ii) of such subsection and rehabilitation units described in the matter following clause (v) of such sub- section. (III) Hospitals described in clause (iv) of such subsection. (I)(i) Subject to subparagraph (L), for cost re- porting periods beginning on or after October 1, 2000, in the case of a sole community hospital there shall be substituted for the amount other- wise determined under subsection (d)(5)(D)(i), if such substitution results in a greater amount of payment under this section for the hospital— (I) with respect to discharges occurring in fiscal year 2001, 75 percent of the amount oth- erwise applicable to the hospital under sub- section (d)(5)(D)(i) (referred to in this clause as the ‘‘subsection (d)(5)(D)(i) amount’’) and 25 percent of the rebased target amount (as de- fined in clause (ii)); (II) with respect to discharges occurring in fiscal year 2002, 50 percent of the subsection (d)(5)(D)(i) amount and 50 percent of the rebased target amount; (III) with respect to discharges occurring in fiscal year 2003, 25 percent of the subsection (d)(5)(D)(i) amount and 75 percent of the rebased target amount; and (IV) with respect to discharges occurring after fiscal year 2003, 100 percent of the rebased target amount. (ii) For purposes of this subparagraph, the ‘‘rebased target amount’’ has the meaning given the term ‘‘target amount’’ in subparagraph (C) except that— (I) there shall be substituted for the base cost reporting period the 12-month cost re- porting period beginning during fiscal year 1996; (II) any reference in subparagraph (C)(i) to the ‘‘first cost reporting period’’ described in such subparagraph is deemed a reference to the first cost reporting period beginning on or after October 1, 2000; and (III) applicable increase percentage shall only be applied under subparagraph (C)(iv) for discharges occurring in fiscal years beginning with fiscal year 2002. (iii) In no case shall a hospital be denied treat- ment as a sole community hospital or payment (on the basis of a target rate as such as a hos- pital) because data are unavailable for any cost reporting period due to changes in ownership, changes in fiscal intermediaries, or other ex- traordinary circumstances, so long as data for at least one applicable base cost reporting pe- riod is available. (J) For cost reporting periods beginning dur- ing fiscal year 2001, for a hospital described in subsection (d)(1)(B)(iv)— (i) the limiting or cap amount otherwise de- termined under subparagraph (H) shall be in- creased by 2 percent; and (ii) the target amount otherwise determined under subparagraph (A) shall be increased by 25 percent (subject to the limiting or cap amount determined under subparagraph (H), as increased by clause (i)). (K)(i) With respect to discharges occurring on or after October 1, 2006, in the case of a medi- care-dependent, small rural hospital, for pur- poses of applying subparagraph (D)— (I) there shall be substituted for the base cost reporting period described in subpara- graph (D)(i) the 12-month cost reporting period beginning during fiscal year 2002; and (II) any reference in such subparagraph to the ‘‘first cost reporting period’’ described in such subparagraph is deemed a reference to the first cost reporting period beginning on or after October 1, 2006. (ii) This subparagraph shall only apply to a hospital if the substitution described in clause (i)(I) results in an increase in the target amount under subparagraph (D) for the hospital. (L)(i) For cost reporting periods beginning on or after January 1, 2009, in the case of a sole community hospital there shall be substituted for the amount otherwise determined under sub- section (d)(5)(D)(i) of this section, if such substi- tution results in a greater amount of payment under this section for the hospital, the subpara- graph (L) rebased target amount. (ii) For purposes of this subparagraph, the term ‘‘subparagraph (L) rebased target amount’’ has the meaning given the term ‘‘target amount’’ in subparagraph (C), except that— (I) there shall be substituted for the base cost reporting period the 12-month cost re- porting period beginning during fiscal year 2006; (II) any reference in subparagraph (C)(i) to the ‘‘first cost reporting period’’ described in such subparagraph is deemed a reference to the first cost reporting period beginning on or after January 1, 2009; and (III) the applicable percentage increase shall only be applied under subparagraph (C)(iv) for discharges occurring on or after January 1, 2009. (4)(A)(i) The Secretary shall provide for an ex- ception and adjustment to (and in the case of a hospital described in subsection (d)(1)(B)(iii), may provide an exemption from) the method under this subsection for determining the amount of payment to a hospital where events beyond the hospital’s control or extraordinary circumstances, including changes in the case mix of such hospital, create a distortion in the increase in costs for a cost reporting period (in- cluding any distortion in the costs for the base period against which such increase is measured). The Secretary may provide for such other ex- emptions from, and exceptions and adjustments to, such method as the Secretary deems appro- priate, including the assignment of a new base period which is more representative, as deter- mined by the Secretary, of the reasonable and necessary cost of inpatient services and includ- ing those which he deems necessary to take into account a decrease in the inpatient hospital services that a hospital provides and that are customarily provided directly by similar hos- pitals which results in a significant distortion in the operating costs of inpatient hospital serv- ices. The Secretary shall announce a decision on any request for an exemption, exception, or ad- justment under this paragraph not later than 180 days after receiving a completed application from the intermediary for such exemption, ex- Page 3816 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ception, or adjustment, and shall include in such decision a detailed explanation of the grounds on which such request was approved or denied. (ii) The payment reductions under paragraph (3)(B)(ii)(V) shall not be considered by the Sec- retary in making adjustments pursuant to clause (i). In making such reductions, the Sec- retary shall treat the applicable update factor described in paragraph (3)(B)(vi) for a fiscal year as being equal to the market basket percentage for that year. (B) In determining under subparagraph (A) whether to assign a new base period which is more representative of the reasonable and nec- essary cost to a hospital of providing inpatient services, the Secretary shall take into consider- ation— (i) changes in applicable technologies and medical practices, or differences in the sever- ity of illness among patients, that increase the hospital’s costs; (ii) whether increases in wages and wage-re- lated costs for hospitals located in the geo- graphic area in which the hospital is located exceed the average of the increases in such costs paid by hospitals in the United States; and (iii) such other factors as the Secretary con- siders appropriate in determining increases in the hospital’s costs of providing inpatient services. (C) Paragraph (1) shall not apply to payment of hospitals which is otherwise determined under paragraph (3) of section 1395f(b) of this title. (5) In the case of any hospital having any cost reporting period of other than a 12-month pe- riod, the Secretary shall determine the 12- month period which shall be used for purposes of this section. (6) In the case of any hospital which becomes subject to the taxes under section 3111 of the In- ternal Revenue Code of 1986, with respect to any or all of its employees, for part or all of a cost reporting period, and was not subject to such taxes with respect to any or all of its employees for all or part of the 12-month base cost report- ing period referred to in subsection (b)(3)(A)(i), the Secretary shall provide for an adjustment by increasing the base period amount described in such subsection for such hospital by an amount equal to the amount of such taxes which would have been paid or accrued by such hospital for such base period if such hospital had been sub- ject to such taxes for all of such base period with respect to all its employees, minus the amount of any such taxes actually paid or ac- crued for such base period. (7)(A) Notwithstanding paragraph (1), in the case of a hospital or unit that is within a class of hospital described in subparagraph (B) which first receives payments under this section on or after October 1, 1997— (i) for each of the first 2 cost reporting peri- ods for which the hospital has a settled cost report, the amount of the payment with re- spect to operating costs described in para- graph (1) under part A on a per discharge or per admission basis (as the case may be) is equal to the lesser of— (I) the amount of operating costs for such respective period, or (II) 110 percent of the national median (as estimated by the Secretary) of the target amount for hospitals in the same class as the hospital for cost reporting periods end- ing during fiscal year 1996, updated by the hospital market basket increase percentage to the fiscal year in which the hospital first received payments under this section, as ad- justed under subparagraph (C); and (ii) for purposes of computing the target amount for the subsequent cost reporting pe- riod, the target amount for the preceding cost reporting period is equal to the amount deter- mined under clause (i) for such preceding pe- riod. (B) For purposes of this paragraph, each of the following shall be treated as a separate class of hospital: (i) Hospitals described in clause (i) of sub- section (d)(1)(B) and psychiatric units de- scribed in the matter following clause (v) of such subsection. (ii) Hospitals described in clause (ii) of such subsection and rehabilitation units described in the matter following clause (v) of such sub- section. (iii) Hospitals described in clause (iv) of such subsection. (C) In applying subparagraph (A)(i)(II) in the case of a hospital or unit, the Secretary shall provide for an appropriate adjustment to the labor-related portion of the amount determined under such subparagraph to take into account differences between average wage-related costs in the area of the hospital and the national av- erage of such costs within the same class of hos- pital. (c) Payment in accordance with State hospital reimbursement control system; amount of payment; discontinuance of payments (1) The Secretary may provide, in his discre- tion, that payment with respect to services pro- vided by a hospital in a State may be made in accordance with a hospital reimbursement con- trol system in a State, rather than in accord- ance with the other provisions of this sub- chapter, if the chief executive officer of the State requests such treatment and if— (A) the Secretary determines that the sys- tem, if approved under this subsection, will apply (i) to substantially all non-Federal acute care hospitals (as defined by the Sec- retary) in the State and (ii) to the review of at least 75 percent of all revenues or expenses in the State for inpatient hospital services and of revenues or expenses for inpatient hospital services provided under the State’s plan ap- proved under subchapter XIX; (B) the Secretary has been provided satisfac- tory assurances as to the equitable treatment under the system of all entities (including Federal and State programs) that pay hos- pitals for inpatient hospital services, of hos- pital employees, and of hospital patients; (C) the Secretary has been provided satisfac- tory assurances that under the system, over 36-month periods (the first such period begin- ning with the first month in which this sub- section applies to that system in the State), Page 3817 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww the amount of payments made under this sub- chapter under such system will not exceed the amount of payments which would otherwise have been made under this subchapter not using such system; (D) the Secretary determines that the sys- tem will not preclude an eligible organization (as defined in section 1395mm(b) of this title) from negotiating directly with hospitals with respect to the organization’s rate of payment for inpatient hospital services; and (E) the Secretary determines that the sys- tem requires hospitals to meet the require- ment of section 1395cc(a)(1)(G) of this title and the system provides for the exclusion of cer- tain costs in accordance with section 1395y(a)(14) of this title (except for such waiv- ers thereof as the Secretary provides by regu- lation). The Secretary cannot deny the application of a State under this subsection on the ground that the State’s hospital reimbursement control sys- tem is based on a payment methodology other than on the basis of a diagnosis-related group or on the ground that the amount of payments made under this subchapter under such system must be less than the amount of payments which would otherwise have been made under this subchapter not using such system. If the Secretary determines that the conditions de- scribed in subparagraph (C) are based on main- taining payment amounts at no more than a specified percentage increase above the payment amounts in a base period, the State has the op- tion of applying such test (for inpatient hospital services under part A) on an aggregate payment basis or on the basis of the amount of payment per inpatient discharge or admission. If the Sec- retary determines that the conditions described in subparagraph (C) are based on maintaining aggregate payment amounts below a national average percentage increase in total payments under part A for inpatient hospital services, the Secretary cannot deny the application of a State under this subsection on the ground that the State’s rate of increase in such payments for such services must be less than such national average rate of increase. (2) In determining under paragraph (1)(C) the amount of payment which would otherwise have been made under this subchapter for a State, the Secretary may provide for appropriate adjust- ment of such amount to take into account pre- vious reductions effected in the amount of pay- ments made under this subchapter in the State due to the operation of the hospital reimburse- ment control system in the State if the system has resulted in an aggregate rate of increase in operating costs of inpatient hospital services (as defined in subsection (a)(4)) under this sub- chapter for hospitals in the State which is less than the aggregate rate of increase in such costs under this subchapter for hospitals in the United States. (3) The Secretary shall discontinue payments under a system described in paragraph (1) if the Secretary— (A) determines that the system no longer meets the requirements of subparagraphs (A), (D), and (E) of paragraph (1) and, if applicable, the requirements of paragraph (5), or (B) has reason to believe that the assurances described in subparagraph (B) or (C) of para- graph (1) (or, if applicable, in paragraph (5)) are not being (or will not be) met. (4) The Secretary shall approve the request of a State under paragraph (1) with respect to a hospital reimbursement control system if— (A) the requirements of subparagraphs (A), (B), (C), (D), and (E) of paragraph (1) have been met with respect to the system, and (B) with respect to that system a waiver of certain requirements of this subchapter has been approved on or before (and which is in ef- fect as of) April 20, 1983, pursuant to section 1395b–1(a) of this title or section 222(a) of the Social Security Amendments of 1972. With respect to a State system described in this paragraph, the Secretary shall judge the effec- tiveness of such system on the basis of its rate of increase or inflation in inpatient hospital payments for individuals under this subchapter, as compared to the national rate of increase or inflation for such payments, with the State re- taining the option to have the test applied on the basis of the aggregate payments under the State system as compared to aggregate pay- ments which would have been made under the national system since October 1, 1984, to the most recent date for which annual data are available. (5) The Secretary shall approve the request of a State under paragraph (1) with respect to a hospital reimbursement control system if— (A) the requirements of subparagraphs (A), (B), (C), (D), and (E) of paragraph (1) have been met with respect to the system; (B) the Secretary determines that the sys- tem— (i) is operated directly by the State or by an entity designated pursuant to State law, (ii) provides for payment of hospitals cov- ered under the system under a methodology (which sets forth exceptions and adjust- ments, as well as any method for changes in the methodology) by which rates or amounts to be paid for hospital services during a specified period are established under the system prior to the defined rate period, and (iii) hospitals covered under the system will make such reports (in lieu of cost and other reports, identified by the Secretary, otherwise required under this subchapter) as the Secretary may require in order to prop- erly monitor assurances provided under this subsection; (C) the State has provided the Secretary with satisfactory assurances that operation of the system will not result in any change in hospital admission practices which result in— (i) a significant reduction in the propor- tion of patients (receiving hospital services covered under the system) who have no third-party coverage and who are unable to pay for hospital services, (ii) a significant reduction in the propor- tion of individuals admitted to hospitals for inpatient hospital services for which pay- ment is (or is likely to be) less than the an- ticipated charges for or costs of such serv- ices, Page 3818 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 3 So in original. The comma probably should not appear. (iii) the refusal to admit patients who would be expected to require unusually cost- ly or prolonged treatment for reasons other than those related to the appropriateness of the care available at the hospital, or (iv) the refusal to provide emergency serv- ices to any person who is in need of emer- gency services if the hospital provides such services; (D) any change by the State in the system which has the effect of materially reducing payments to hospitals can only take effect upon 60 days notice to the Secretary and to the hospitals the payment to which is likely to be materially affected by the change; and (E) the State has provided the Secretary with satisfactory assurances that in the devel- opment of the system the State has consulted with local governmental officials concerning the impact of the system on public hospitals. The Secretary shall respond to requests of States under this paragraph within 60 days of the date the request is submitted to the Sec- retary. (6) If the Secretary determines that the assur- ances described in paragraph (1)(C) have not been met with respect to any 36-month period, the Secretary may reduce payments under this subchapter to hospitals under the system in an amount equal to the amount by which the pay- ment under this subchapter under such system for such period exceeded the amount of pay- ments which would otherwise have been made under this subchapter not using such system. (7) In the case of a State which made a request under paragraph (5) before December 31, 1984, for the approval of a State hospital reimbursement control system and which request was ap- proved— (A) in applying paragraphs (1)(C) and (6), a reference to a ‘‘36-month period’’ is deemed a reference to a ‘‘48-month period’’, and (B) in order to allow the State the oppor- tunity to provide the assurances described in paragraph (1)(C) for a 48-month period, the Secretary may not discontinue payments under the system, under the authority of para- graph (3)(A) because the Secretary has reason to believe that such assurances are not being (or will not be) met, before July 1, 1986. (d) Inpatient hospital service payments on basis of prospective rates; Medicare Geographical Classification Review Board (1)(A) Notwithstanding section 1395f(b) of this title but subject to the provisions of section 1395e of this title, the amount of the payment with respect to the operating costs of inpatient hospital services (as defined in subsection (a)(4)) of a subsection (d) hospital (as defined in sub- paragraph (B)) for inpatient hospital discharges in a cost reporting period or in a fiscal year— (i) beginning on or after October 1, 1983, and before October 1, 1984, is equal to the sum of— (I) the target percentage (as defined in subparagraph (C)) of the hospital’s target amount for the cost reporting period (as de- fined in subsection (b)(3)(A) of this section, but determined without the application of subsection (a)), and (II) the DRG percentage (as defined in sub- paragraph (C)) of the regional adjusted DRG prospective payment rate determined under paragraph (2) for such discharges; (ii) beginning on or after October 1, 1984, and before October 1, 1987, is equal to the sum of— (I) the target percentage (as defined in subparagraph (C)) of the hospital’s target amount for the cost reporting period (as de- fined in subsection (b)(3)(A), but determined without the application of subsection (a)), and (II) the DRG percentage (as defined in sub- paragraph (C)) of the applicable combined adjusted DRG prospective payment rate de- termined under subparagraph (D) for such discharges; or (iii) beginning on or after April 1, 1988, is equal to— (I) the national adjusted DRG prospective payment rate determined under paragraph (3) for such discharges, or (II) for discharges occurring during a fiscal year ending on or before September 30, 1996, the sum of 85 percent of the national ad- justed DRG prospective payment rate deter- mined under paragraph (3) for such dis- charges and 15 percent of the regional ad- justed DRG prospective payment rate deter- mined under such paragraph, but only if the average standardized amount (described in clause (i)(I) or clause (ii)(I) of paragraph (3)(D)) for hospitals within the region of, and in the same large urban or other area (or, for discharges occurring during a fiscal year ending on or before September 30, 1994, the same large urban or other area) as, the hos- pital is greater than the average standard- ized amount (described in the respective clause) for hospitals within the United States in that type of area for discharges oc- curring during such fiscal year. (B) As used in this section, the term ‘‘sub- section (d) hospital’’ means a hospital located in one of the fifty States or the District of Colum- bia other than— (i) a psychiatric hospital (as defined in sec- tion 1395x(f) of this title), (ii) a rehabilitation hospital (as defined by the Secretary), (iii) a hospital whose inpatients are predomi- nantly individuals under 18 years of age, (iv) a hospital which has an average inpa- tient length of stay (as determined by the Sec- retary) of greater than 25 days, (v)(I) a hospital that the Secretary has clas- sified, at any time on or before December 31, 1990,3 (or, in the case of a hospital that, as of December 19, 1989, is located in a State oper- ating a demonstration project under section 1395f(b) of this title, on or before December 31, 1991) for purposes of applying exceptions and adjustments to payment amounts under this subsection, as a hospital involved extensively in treatment for or research on cancer, (II) a hospital that was recognized as a com- prehensive cancer center or clinical cancer re- search center by the National Cancer Institute Page 3819 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww of the National Institutes of Health as of April 20, 1983, that is located in a State which, as of December 19, 1989, was not operating a dem- onstration project under section 1395f(b) of this title, that applied and was denied, on or before December 31, 1990, for classification as a hospital involved extensively in treatment for or research on cancer under this clause (as in effect on the day before August 5, 1997), that as of August 5, 1997, is licensed for less than 50 acute care beds, and that demonstrates for the 4-year period ending on December 31, 1996, that at least 50 percent of its total discharges have a principal finding of neoplastic disease, as de- fined in subparagraph (E), or (III) a hospital that was recognized as a clin- ical cancer research center by the National Cancer Institute of the National Institutes of Health as of February 18, 1998, that has never been reimbursed for inpatient hospital serv- ices pursuant to a reimbursement system under a demonstration project under section 1395f(b) of this title, that is a freestanding fa- cility organized primarily for treatment of and research on cancer and is not a unit of an- other hospital, that as of December 21, 2000, is licensed for 162 acute care beds, and that dem- onstrates for the 4-year period ending on June 30, 1999, that at least 50 percent of its total dis- charges have a principal finding of neoplastic disease, as defined in subparagraph (E), or (vi) a hospital that first received payment under this subsection in 1986 which has an av- erage inpatient length of stay (as determined by the Secretary) of greater than 20 days and that has 80 percent or more of its annual medi- care inpatient discharges with a principal di- agnosis that reflects a finding of neoplastic disease in the 12-month cost reporting period ending in fiscal year 1997; and, in accordance with regulations of the Sec- retary, does not include a psychiatric or reha- bilitation unit of the hospital which is a distinct part of the hospital (as defined by the Sec- retary). A hospital that was classified by the Secretary on or before September 30, 1995, as a hospital described in clause (iv) (as in effect as of such date) shall continue to be so classified (or, in the case of a hospital described in clause (iv)(II), as so in effect, shall be classified under clause (vi) on and after the effective date of such clause (vi) and for cost reporting periods begin- ning on or after January 1, 2015, shall not be subject to subsection (m) as of the date of such classification) notwithstanding that it is located in the same building as, or on the same campus as, another hospital. (C) For purposes of this subsection, for cost re- porting periods beginning— (i) on or after October 1, 1983, and before Oc- tober 1, 1984, the ‘‘target percentage’’ is 75 per- cent and the ‘‘DRG percentage’’ is 25 percent; (ii) on or after October 1, 1984, and before Oc- tober 1, 1985, the ‘‘target percentage’’ is 50 per- cent and the ‘‘DRG percentage’’ is 50 percent; (iii) on or after October 1, 1985, and before October 1, 1986, the ‘‘target percentage’’ is 45 percent and the ‘‘DRG percentage’’ is 55 per- cent; and (iv) on or after October 1, 1986, and before October 1, 1987, the ‘‘target percentage’’ is 25 percent and the ‘‘DRG percentage’’ is 75 per- cent. (D) For purposes of subparagraph (A)(ii)(II), the ‘‘applicable combined adjusted DRG prospec- tive payment rate’’ for discharges occurring— (i) on or after October 1, 1984, and before Oc- tober 1, 1986, is a combined rate consisting of 25 percent of the national adjusted DRG pro- spective payment rate, and 75 percent of the regional adjusted DRG prospective payment rate, determined under paragraph (3) for such discharges; and (ii) on or after October 1, 1986, and before Oc- tober 1, 1987, is a combined rate consisting of 50 percent of the national adjusted DRG pro- spective payment rate, and 50 percent of the regional adjusted DRG prospective payment rate, determined under paragraph (3) for such discharges. (E) For purposes of subclauses (II) and (III) of subparagraph (B)(v) only, the term ‘‘principal finding of neoplastic disease’’ means the condi- tion established after study to be chiefly respon- sible for occasioning the admission of a patient to a hospital, except that only discharges with ICD–9–CM principal diagnosis codes of 140 through 239, V58.0, V58.1, V66.1, V66.2, or 990 will be considered to reflect such a principal diag- nosis. (2) The Secretary shall determine a national adjusted DRG prospective payment rate, for each inpatient hospital discharge in fiscal year 1984 involving inpatient hospital services of a subsection (d) hospital in the United States, and shall determine a regional adjusted DRG pro- spective payment rate for such discharges in each region, for which payment may be made under part A of this subchapter. Each such rate shall be determined for hospitals located in urban or rural areas within the United States or within each such region, respectively, as fol- lows: (A) DETERMINING ALLOWABLE INDIVIDUAL HOS- PITAL COSTS FOR BASE PERIOD.—The Secretary shall determine the allowable operating costs per discharge of inpatient hospital services for the hospital for the most recent cost reporting period for which data are available. (B) UPDATING FOR FISCAL YEAR 1984.—The Sec- retary shall update each amount determined under subparagraph (A) for fiscal year 1984 by— (i) updating for fiscal year 1983 by the esti- mated average rate of change of hospital costs industry-wide between the cost report- ing period used under such subparagraph and fiscal year 1983 and the most recent case-mix data available, and (ii) projecting for fiscal year 1984 by the applicable percentage increase (as defined in subsection (b)(3)(B)) for fiscal year 1984. (C) STANDARDIZING AMOUNTS.—The Secretary shall standardize the amount updated under subparagraph (B) for each hospital by— (i) excluding an estimate of indirect med- ical education costs (taking into account, for discharges occurring after September 30, 1986, the amendments made by section 9104(a) of the Medicare and Medicaid Budget Reconciliation Amendments of 1985), except Page 3820 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 4 See References in Text note below. that the Secretary shall not take into ac- count any reduction in the amount of addi- tional payments under paragraph (5)(B)(ii) resulting from the amendment made by sec- tion 4621(a)(1) of the Balanced Budget Act of 1997 or any additional payments under such paragraph resulting from the application of section 111 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, of section 302 of the Medicare, Med- icaid, and SCHIP Benefits Improvement and Protection Act of 2000, or the Medicare Pre- scription Drug, Improvement, and Mod- ernization Act of 2003, (ii) adjusting for variations among hos- pitals by area in the average hospital wage level, (iii) adjusting for variations in case mix among hospitals, and (iv) for discharges occurring on or after October 1, 1986, excluding an estimate of the additional payments to certain hospitals to be made under paragraph (5)(F), except that the Secretary shall not exclude additional payments under such paragraph made as a result of the enactment of section 6003(c) of the Omnibus Budget Reconciliation Act of 1989, the enactment of section 4002(b) of the Omnibus Budget Reconciliation Act of 1990, the enactment of section 303 of the Medi- care, Medicaid, and SCHIP Benefits Improve- ment and Protection Act of 2000, or the en- actment of section 402(a)(1) 4 of the Medicare Prescription Drug, Improvement, and Mod- ernization Act of 2003. (D) COMPUTING URBAN AND RURAL AVER- AGES.—The Secretary shall compute an aver- age of the standardized amounts determined under subparagraph (C) for the United States and for each region— (i) for all subsection (d) hospitals located in an urban area within the United States or that region, respectively, and (ii) for all subsection (d) hospitals located in a rural area within the United States or that region, respectively. For purposes of this subsection, the term ‘‘re- gion’’ means one of the nine census divisions, comprising the fifty States and the District of Columbia, established by the Bureau of the Census for statistical and reporting purposes; the term ‘‘urban area’’ means an area within a Metropolitan Statistical Area (as defined by the Office of Management and Budget) or within such similar area as the Secretary has recognized under subsection (a) by regulation; the term ‘‘large urban area’’ means, with re- spect to a fiscal year, such an urban area which the Secretary determines (in the publi- cations described in subsection (e)(5) before the fiscal year) has a population of more than 1,000,000 (as determined by the Secretary based on the most recent available population data published by the Bureau of the Census); and the term ‘‘rural area’’ means any area outside such an area or similar area. A hospital lo- cated in a Metropolitan Statistical Area shall be deemed to be located in the region in which the largest number of the hospitals in the same Metropolitan Statistical Area are lo- cated, or, at the option of the Secretary, the region in which the majority of the inpatient discharges (with respect to which payments are made under this subchapter) from hos- pitals in the same Metropolitan Statistical Area are made. (E) REDUCING FOR VALUE OF OUTLIER PAY- MENTS.—The Secretary shall reduce each of the average standardized amounts determined under subparagraph (D) by a proportion equal to the proportion (estimated by the Secretary) of the amount of payments under this sub- section based on DRG prospective payment rates which are additional payments described in paragraph (5)(A) (relating to outlier pay- ments). (F) MAINTAINING BUDGET NEUTRALITY.—The Secretary shall adjust each of such average standardized amounts as may be required under subsection (e)(1)(B) for that fiscal year. (G) COMPUTING DRG-SPECIFIC RATES FOR URBAN AND RURAL HOSPITALS IN THE UNITED STATES AND IN EACH REGION.—For each dis- charge classified within a diagnosis-related group, the Secretary shall establish a national DRG prospective payment rate and shall es- tablish a regional DRG prospective payment rate for each region, each of which is equal— (i) for hospitals located in an urban area in the United States or that region (respec- tively), to the product of— (I) the average standardized amount (computed under subparagraph (D), re- duced under subparagraph (E), and ad- justed under subparagraph (F)) for hos- pitals located in an urban area in the United States or that region, and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis- related group; and (ii) for hospitals located in a rural area in the United States or that region (respec- tively), to the product of— (I) the average standardized amount (computed under subparagraph (D), re- duced under subparagraph (E), and ad- justed under subparagraph (F)) for hos- pitals located in a rural area in the United States or that region, and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis- related group. (H) ADJUSTING FOR DIFFERENT AREA WAGE LEVELS.—The Secretary shall adjust the pro- portion, (as estimated by the Secretary from time to time) of hospitals’ costs which are at- tributable to wages and wage-related costs, of the national and regional DRG prospective payment rates computed under subparagraph (G) for area differences in hospital wage levels by a factor (established by the Secretary) re- flecting the relative hospital wage level in the geographic area of the hospital compared to the national average hospital wage level. (3) The Secretary shall determine a national adjusted DRG prospective payment rate, for each inpatient hospital discharge in a fiscal year after fiscal year 1984 involving inpatient hos- Page 3821 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww pital services of a subsection (d) hospital in the United States, and shall determine, for fiscal years before fiscal year 1997, a regional adjusted DRG prospective payment rate for such dis- charges in each region for which payment may be made under part A of this subchapter. Each such rate shall be determined for hospitals lo- cated in large urban, other urban, or rural areas within the United States and within each such region, respectively, as follows: (A) UPDATING PREVIOUS STANDARDIZED AMOUNTS.—(i) For discharges occurring in a fiscal year beginning before October 1, 1987, the Secretary shall compute an average stand- ardized amount for hospitals located in an urban area and for hospitals located in a rural area within the United States and for hos- pitals located in an urban area and for hos- pitals located in a rural area within each re- gion, equal to the respective average standard- ized amount computed for the previous fiscal year under paragraph (2)(D) or under this sub- paragraph, increased for the fiscal year in- volved by the applicable percentage increase under subsection (b)(3)(B). With respect to dis- charges occurring on or after October 1, 1987, the Secretary shall compute urban and rural averages on the basis of discharge weighting rather than hospital weighting, making appro- priate adjustments to ensure that computa- tion on such basis does not result in total pay- ments under this section that are greater or less than the total payments that would have been made under this section but for this sen- tence, and making appropriate changes in the manner of determining the reductions under subparagraph (C)(ii). (ii) For discharges occurring in a fiscal year beginning on or after October 1, 1987, and end- ing on or before September 30, 1994, the Sec- retary shall compute an average standardized amount for hospitals located in a large urban area, for hospitals located in a rural area, and for hospitals located in other urban areas, within the United States and within each re- gion, equal to the respective average standard- ized amount computed for the previous fiscal year under this subparagraph increased by the applicable percentage increase under sub- section (b)(3)(B)(i) with respect to hospitals lo- cated in the respective areas for the fiscal year involved. (iii) For discharges occurring in the fiscal year beginning on October 1, 1994, the average standardized amount for hospitals located in a rural area shall be equal to the average stand- ardized amount for hospitals located in an urban area. For discharges occurring on or after October 1, 1994, the Secretary shall ad- just the ratio of the labor portion to non-labor portion of each average standardized amount to equal such ratio for the national average of all standardized amounts. (iv)(I) Subject to subclause (II), for dis- charges occurring in a fiscal year beginning on or after October 1, 1995, the Secretary shall compute an average standardized amount for hospitals located in a large urban area and for hospitals located in other areas within the United States and within each region equal to the respective average standardized amount computed for the previous fiscal year under this subparagraph increased by the applicable percentage increase under subsection (b)(3)(B)(i) with respect to hospitals located in the respective areas for the fiscal year in- volved. (II) For discharges occurring in a fiscal year (beginning with fiscal year 2004), the Secretary shall compute a standardized amount for hos- pitals located in any area within the United States and within each region equal to the standardized amount computed for the pre- vious fiscal year under this subparagraph for hospitals located in a large urban area (or, be- ginning with fiscal year 2005, for all hospitals in the previous fiscal year) increased by the applicable percentage increase under sub- section (b)(3)(B)(i) for the fiscal year involved. (v) Average standardized amounts computed under this paragraph shall be adjusted to re- flect the most recent case-mix data available. (vi) Insofar as the Secretary determines that the adjustments under paragraph (4)(C)(i) for a previous fiscal year (or estimates that such adjustments for a future fiscal year) did (or are likely to) result in a change in aggregate payments under this subsection during the fis- cal year that are a result of changes in the coding or classification of discharges that do not reflect real changes in case mix, the Sec- retary may adjust the average standardized amounts computed under this paragraph for subsequent fiscal years so as to eliminate the effect of such coding or classification changes. (B) REDUCING FOR VALUE OF OUTLIER PAY- MENTS.—The Secretary shall reduce each of the average standardized amounts determined under subparagraph (A) by a factor equal to the proportion of payments under this sub- section (as estimated by the Secretary) based on DRG prospective payment amounts which are additional payments described in para- graph (5)(A) (relating to outlier payments). (C) MAINTAINING BUDGET NEUTRALITY FOR FIS- CAL YEAR 1985.—(i) For discharges occurring in fiscal year 1985, the Secretary shall adjust each of such average standardized amounts as may be required under subsection (e)(1)(B) for that fiscal year. (ii) REDUCING FOR SAVINGS FROM AMENDMENT TO INDIRECT TEACHING ADJUSTMENT FOR DIS- CHARGES AFTER SEPTEMBER 30, 1986.—For dis- charges occurring after September 30, 1986, the Secretary shall further reduce each of the av- erage standardized amounts (in a proportion which takes into account the differing effects of the standardization effected under para- graph (2)(C)(i)) so as to provide for a reduction in the total of the payments (attributable to this paragraph) made for discharges occurring on or after October 1, 1986, of an amount equal to the estimated reduction in the payment amounts under paragraph (5)(B) that would have resulted from the enactment of the amendments made by section 9104 of the Medi- care and Medicaid Budget Reconciliation Amendments of 1985 and by section 4003(a)(1) of the Omnibus Budget Reconciliation Act of 1987 if the factor described in clause (ii)(II) of paragraph (5)(B) (determined without regard to amendments made by the Omnibus Budget Page 3822 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Reconciliation Act of 1990) were applied for discharges occurring on or after such date in- stead of the factor described in clause (ii) of that paragraph. (D) COMPUTING DRG-SPECIFIC RATES FOR HOS- PITALS.—For each discharge classified within a diagnosis-related group, the Secretary shall establish for the fiscal year a national DRG prospective payment rate and shall establish, for fiscal years before fiscal year 1997, a re- gional DRG prospective payment rate for each region which is equal— (i) for fiscal years before fiscal year 2004, for hospitals located in a large urban area in the United States or that region (respec- tively), to the product of— (I) the average standardized amount (computed under subparagraph (A), re- duced under subparagraph (B), and ad- justed or reduced under subparagraph (C)) for the fiscal year for hospitals located in such a large urban area in the United States or that region, and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis- related group; (ii) for fiscal years before fiscal year 2004, for hospitals located in other areas in the United States or that region (respectively), to the product of— (I) the average standardized amount (computed under subparagraph (A), re- duced under subparagraph (B), and ad- justed or reduced under subparagraph (C)) for the fiscal year for hospitals located in other areas in the United States or that region, and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis- related group; and (iii) for a fiscal year beginning after fiscal year 2003, for hospitals located in all areas, to the product of— (I) the applicable standardized amount (computed under subparagraph (A)), re- duced under subparagraph (B), and ad- justed or reduced under subparagraph (C) for the fiscal year; and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis- related group. (E) ADJUSTING FOR DIFFERENT AREA WAGE LEVELS.— (i) IN GENERAL.—Except as provided in clause (ii), (iii), or (iv), the Secretary shall adjust the proportion, (as estimated by the Secretary from time to time) of hospitals’ costs which are attributable to wages and wage-related costs, of the DRG prospective payment rates computed under subpara- graph (D) for area differences in hospital wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the hos- pital compared to the national average hos- pital wage level. Not later than October 1, 1990, and October 1, 1993 (and at least every 12 months thereafter), the Secretary shall update the factor under the preceding sen- tence on the basis of a survey conducted by the Secretary (and updated as appropriate) of the wages and wage-related costs of sub- section (d) hospitals in the United States. Not less often than once every 3 years the Secretary (through such survey or other- wise) shall measure the earnings and paid hours of employment by occupational cat- egory and shall exclude data with respect to the wages and wage-related costs incurred in furnishing skilled nursing facility services. Any adjustments or updates made under this subparagraph for a fiscal year (beginning with fiscal year 1991) shall be made in a manner that assures that the aggregate pay- ments under this subsection in the fiscal year are not greater or less than those that would have been made in the year without such adjustment. The Secretary shall apply the previous sentence for any period as if the amendments made by section 403(a)(1) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, the amend- ments made by section 10324(a)(1) of the Pa- tient Protection and Affordable Care Act, and the amendments made by section 9831(a) of the American Rescue Plan Act of 2021 had not been enacted. (ii) ALTERNATIVE PROPORTION TO BE AD- JUSTED BEGINNING IN FISCAL YEAR 2005.—For discharges occurring on or after October 1, 2004, the Secretary shall substitute ‘‘62 per- cent’’ for the proportion described in the first sentence of clause (i), unless the appli- cation of this clause would result in lower payments to a hospital than would otherwise be made. (iii) FLOOR ON AREA WAGE INDEX FOR HOS- PITALS IN FRONTIER STATES.— (I) IN GENERAL.—Subject to subclause (IV), for discharges occurring on or after October 1, 2010, the area wage index appli- cable under this subparagraph to any hos- pital which is located in a frontier State (as defined in subclause (II)) may not be less than 1.00. (II) FRONTIER STATE DEFINED.—In this clause, the term ‘‘frontier State’’ means a State in which at least 50 percent of the counties in the State are frontier counties. (III) FRONTIER COUNTY DEFINED.—In this clause, the term ‘‘frontier county’’ means a county in which the population per square mile is less than 6. (IV) LIMITATION.—This clause shall not apply to any hospital located in a State that receives a non-labor related share ad- justment under paragraph (5)(H). (iv) FLOOR ON AREA WAGE INDEX FOR HOS- PITALS IN ALL-URBAN STATES.— (I) IN GENERAL.—For discharges occur- ring on or after October 1, 2021, the area wage index applicable under this subpara- graph to any hospital in an all-urban State (as defined in subclause (IV)) may not be less than the minimum area wage index for the fiscal year for hospitals in that State, as established under subclause (II). (II) MINIMUM AREA WAGE INDEX.—For pur- poses of subclause (I), the Secretary shall establish a minimum area wage index for a fiscal year for hospitals in each all-urban Page 3823 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 5 So in original. Probably should be followed by a period. State using the methodology described in section 412.64(h)(4)(vi) of title 42, Code of Federal Regulations, as in effect for fiscal year 2018. (III) WAIVING BUDGET NEUTRALITY.—Pur- suant to the fifth sentence of clause (i), this clause shall not be applied in a budget neutral manner. (IV) ALL-URBAN STATE DEFINED.—In this clause, the term ‘‘all-urban State’’ means a State in which there are no rural areas (as defined in paragraph (2)(D)) or a State in which there are no hospitals classified as rural under this section. (4)(A) The Secretary shall establish a classi- fication of inpatient hospital discharges by diag- nosis-related groups and a methodology for classifying specific hospital discharges within these groups. (B) For each such diagnosis-related group the Secretary shall assign an appropriate weighting factor which reflects the relative hospital re- sources used with respect to discharges classi- fied within that group compared to discharges classified within other groups. (C)(i) The Secretary shall adjust the classifica- tions and weighting factors established under subparagraphs (A) and (B), for discharges in fis- cal year 1988 and at least annually thereafter, to reflect changes in treatment patterns, tech- nology (including a new medical service or tech- nology under paragraph (5)(K)), and other fac- tors which may change the relative use of hos- pital resources. (ii) For discharges in fiscal year 1990, the Sec- retary shall reduce the weighting factor for each diagnosis-related group by 1.22 percent. (iii) Any such adjustment under clause (i) for discharges in a fiscal year (beginning with fiscal year 1991) or payments under paragraph (5)(M) (beginning with fiscal year 2021) shall be made in a manner that assures that the aggregate pay- ments under this subsection for discharges in the fiscal year are not greater or less than those that would have been made for discharges in the year without such adjustment or payments under paragraph (5)(M). (iv)(I) For discharges occurring during the emergency period described in section 1320b–5(g)(1)(B) of this title, in the case of a dis- charge of an individual diagnosed with COVID–19, the Secretary shall increase the weighting factor that would otherwise apply to the diagnosis-related group to which the dis- charge is assigned by 20 percent. The Secretary shall identify a discharge of such an individual through the use of diagnosis codes, condition codes, or other such means as may be necessary. (II) Any adjustment under subclause (I) shall not be taken into account in applying budget neutrality under clause (iii) 5 (III) In the case of a State for which the Sec- retary has waived all or part of this section under the authority of section 1315a of this title, nothing in this section shall preclude such State from implementing an adjustment similar to the adjustment under subclause (I). (D)(i) For discharges occurring on or after Oc- tober 1, 2008, the diagnosis-related group to be assigned under this paragraph for a discharge described in clause (ii) shall be a diagnosis-re- lated group that does not result in higher pay- ment based on the presence of a secondary diag- nosis code described in clause (iv). (ii) A discharge described in this clause is a discharge which meets the following require- ments: (I) The discharge includes a condition identi- fied by a diagnosis code selected under clause (iv) as a secondary diagnosis. (II) But for clause (i), the discharge would have been classified to a diagnosis-related group that results in a higher payment based on the presence of a secondary diagnosis code selected under clause (iv). (III) At the time of admission, no code se- lected under clause (iv) was present. (iii) As part of the information required to be reported by a hospital with respect to a dis- charge of an individual in order for payment to be made under this subsection, for discharges occurring on or after October 1, 2007, the infor- mation shall include the secondary diagnosis of the individual at admission. (iv) By not later than October 1, 2007, the Sec- retary shall select diagnosis codes associated with at least two conditions, each of which codes meets all of the following requirements (as determined by the Secretary): (I) Cases described by such code have a high cost or high volume, or both, under this sub- chapter. (II) The code results in the assignment of a case to a diagnosis-related group that has a higher payment when the code is present as a secondary diagnosis. (III) The code describes such conditions that could reasonably have been prevented through the application of evidence-based guidelines. The Secretary may from time to time revise (through addition or deletion of codes) the diag- nosis codes selected under this clause so long as there are diagnosis codes associated with at least two conditions selected for discharges oc- curring during any fiscal year. (v) In selecting and revising diagnosis codes under clause (iv), the Secretary shall consult with the Centers for Disease Control and Pre- vention and other appropriate entities. (vi) Any change resulting from the application of this subparagraph shall not be taken into ac- count in adjusting the weighting factors under subparagraph (C)(i) or in applying budget neu- trality under subparagraph (C)(iii). (5)(A)(i) For discharges occurring during fiscal years ending on or before September 30, 1997, the Secretary shall provide for an additional pay- ment for a subsection (d) hospital for any dis- charge in a diagnosis-related group, the length of stay of which exceeds the mean length of stay for discharges within that group by a fixed num- ber of days, or exceeds such mean length of stay by some fixed number of standard deviations, whichever is the fewer number of days. (ii) For cases which are not included in clause (i), a subsection (d) hospital may request addi- tional payments in any case where charges, ad- justed to cost, exceed a fixed multiple of the ap- plicable DRG prospective payment rate, or ex- Page 3824 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ceed such other fixed dollar amount, whichever is greater, or, for discharges in fiscal years be- ginning on or after October 1, 1994, exceed the sum of the applicable DRG prospective payment rate plus any amounts payable under subpara- graphs (B) and (F) plus a fixed dollar amount de- termined by the Secretary. (iii) The amount of such additional payment under clauses (i) and (ii) shall be determined by the Secretary and shall (except as payments under clause (i) are required to be reduced to take into account the requirements of clause (v)) approximate the marginal cost of care be- yond the cutoff point applicable under clause (i) or (ii). (iv) The total amount of the additional pay- ments made under this subparagraph for dis- charges in a fiscal year may not be less than 5 percent nor more than 6 percent of the total payments projected or estimated to be made based on DRG prospective payment rates for dis- charges in that year. (v) The Secretary shall provide that— (I) the day outlier percentage for fiscal year 1995 shall be 75 percent of the day outlier per- centage for fiscal year 1994; (II) the day outlier percentage for fiscal year 1996 shall be 50 percent of the day outlier per- centage for fiscal year 1994; and (III) the day outlier percentage for fiscal year 1997 shall be 25 percent of the day outlier percentage for fiscal year 1994. (vi) For purposes of this subparagraph, the term ‘‘day outlier percentage’’ means, for a fis- cal year, the percentage of the total additional payments made by the Secretary under this sub- paragraph for discharges in that fiscal year which are additional payments under clause (i). (B) The Secretary shall provide for an addi- tional payment amount for subsection (d) hos- pitals with indirect costs of medical education, in an amount computed in the same manner as the adjustment for such costs under regulations (in effect as of January 1, 1983) under subsection (a)(2), except as follows: (i) The amount of such additional payment shall be determined by multiplying (I) the sum of the amount determined under paragraph (1)(A)(ii)(II) (or, if applicable, the amount de- termined under paragraph (1)(A)(iii)) and, for cases qualifying for additional payment under subparagraph (A)(i), the amount paid to the hospital under subparagraph (A), by (II) the in- direct teaching adjustment factor described in clause (ii). (ii) For purposes of clause (i)(II), the indirect teaching adjustment factor is equal to c × (((1+r) to the nth power) ¥1), where ‘‘r’’ is the ratio of the hospital’s full-time equivalent in- terns and residents to beds and ‘‘n’’ equals .405. Subject to clause (ix), for discharges oc- curring— (I) on or after October 1, 1988, and before October 1, 1997, ‘‘c’’ is equal to 1.89; (II) during fiscal year 1998, ‘‘c’’ is equal to 1.72; (III) during fiscal year 1999, ‘‘c’’ is equal to 1.6; (IV) during fiscal year 2000, ‘‘c’’ is equal to 1.47; (V) during fiscal year 2001, ‘‘c’’ is equal to 1.54; (VI) during fiscal year 2002, ‘‘c’’ is equal to 1.6; (VII) on or after October 1, 2002, and before April 1, 2004, ‘‘c’’ is equal to 1.35; (VIII) on or after April 1, 2004, and before October 1, 2004, ‘‘c’’ is equal to 1.47; (IX) during fiscal year 2005, ‘‘c’’ is equal to 1.42; (X) during fiscal year 2006, ‘‘c’’ is equal to 1.37; (XI) during fiscal year 2007, ‘‘c’’ is equal to 1.32; and (XII) on or after October 1, 2007, ‘‘c’’ is equal to 1.35. (iii) In determining such adjustment the Secretary shall not distinguish between those interns and residents who are employees of a hospital and those interns and residents who furnish services to a hospital but are not em- ployees of such hospital. (iv)(I) Effective for discharges occurring on or after October 1, 1997, and before July 1, 2010, all the time spent by an intern or resident in patient care activities under an approved med- ical residency training program at an entity in a nonhospital setting shall be counted to- wards the determination of full-time equiva- lency if the hospital incurs all, or substan- tially all, of the costs for the training program in that setting. (II) Effective for discharges occurring on or after July 1, 2010, all the time spent by an in- tern or resident in patient care activities in a nonprovider setting shall be counted towards the determination of full-time equivalency if a hospital incurs the costs of the stipends and fringe benefits of the intern or resident during the time the intern or resident spends in that setting. If more than one hospital incurs these costs, either directly or through a third party, such hospitals shall count a proportional share of the time, as determined by written agree- ment between the hospitals, that a resident spends training in that setting. (v) In determining the adjustment with re- spect to a hospital for discharges occurring on or after October 1, 1997, the total number of full-time equivalent interns and residents in the fields of allopathic and osteopathic medi- cine in either a hospital or nonhospital setting may not exceed the number (or, 130 percent of such number in the case of a hospital located in a rural area) of such full-time equivalent in- terns and residents in the hospital with re- spect to the hospital’s most recent cost report- ing period ending on or before December 31, 1996. Rules similar to the rules of subsection (h)(4)(F)(ii) shall apply for purposes of this clause. The provisions of subsections (h)(4)(H)(vi), (h)(7), (h)(8), (h)(9), and (h)(10) shall apply with respect to the first sentence of this clause in the same manner as they apply with respect to subsection (h)(4)(F)(i). (vi) For purposes of clause (ii)— (I) ‘‘r’’ may not exceed the ratio of the number of interns and residents, subject to the limit under clause (v), with respect to the hospital for its most recent cost report- ing period to the hospital’s available beds (as defined by the Secretary) during that cost reporting period, and Page 3825 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (II) for the hospital’s cost reporting peri- ods beginning on or after October 1, 1997, subject to the limits described in clauses (iv) and (v), the total number of full-time equiv- alent residents for payment purposes shall equal the average of the actual full-time equivalent resident count for the cost re- porting period and the preceding two cost re- porting periods. In the case of the first cost reporting period beginning on or after October 1, 1997, subclause (II) shall be applied by using the average for such period and the preceding cost reporting period. (vii) If any cost reporting period beginning on or after October 1, 1997, is not equal to twelve months, the Secretary shall make ap- propriate modifications to ensure that the av- erage full-time equivalent residency count pursuant to subclause (II) of clause (vi) is based on the equivalent of full twelve-month cost reporting periods. (viii) Rules similar to the rules of para- graphs (2)(F)(iv) and (4)(H) of subsection (h) shall apply for purposes of clauses (v) and (vi). (ix) For discharges occurring on or after July 1, 2005, insofar as an additional payment amount under this subparagraph is attrib- utable to resident positions redistributed to a hospital under subsection (h)(7)(B), in com- puting the indirect teaching adjustment factor under clause (ii) the adjustment shall be com- puted in a manner as if ‘‘c’’ were equal to 0.66 with respect to such resident positions. (x) For discharges occurring on or after July 1, 2011, insofar as an additional payment amount under this subparagraph is attrib- utable to resident positions distributed to a hospital under subsection (h)(8)(B), the indi- rect teaching adjustment factor shall be com- puted in the same manner as provided under clause (ii) with respect to such resident posi- tions. (xi)(I) The provisions of subparagraph (K) of subsection (h)(4) shall apply under this sub- paragraph in the same manner as they apply under such subsection. (II) In determining the hospital’s number of full-time equivalent residents for purposes of this subparagraph, all the time spent by an in- tern or resident in an approved medical resi- dency training program in non-patient care activities, such as didactic conferences and seminars, as such time and activities are de- fined by the Secretary, that occurs in the hos- pital shall be counted toward the determina- tion of full-time equivalency if the hospital— (aa) is recognized as a subsection (d) hos- pital; (bb) is recognized as a subsection (d) Puer- to Rico hospital; (cc) is reimbursed under a reimbursement system authorized under section 1395f(b)(3) of this title; or (dd) is a provider-based hospital outpatient department. (III) In determining the hospital’s number of full-time equivalent residents for purposes of this subparagraph, all the time spent by an in- tern or resident in an approved medical resi- dency training program in research activities that are not associated with the treatment or diagnosis of a particular patient, as such time and activities are defined by the Secretary, shall not be counted toward the determination of full-time equivalency. (xii) For discharges occurring on or after July 1, 2023, insofar as an additional payment amount under this subparagraph is attrib- utable to resident positions distributed to a hospital under subsection (h)(9), the indirect teaching adjustment factor shall be computed in the same manner as provided under clause (ii) with respect to such resident positions. (xiii) For discharges occurring on or after July 1, 2026, insofar as an additional payment amount under this subparagraph is attrib- utable to resident positions distributed to a hospital under subsection (h)(10), the indirect teaching adjustment factor shall be computed in the same manner as provided under clause (ii) with respect to such resident positions. (C)(i) The Secretary shall provide for such ex- ceptions and adjustments to the payment amounts established under this subsection (other than under paragraph (9)) as the Sec- retary deems appropriate to take into account the special needs of regional and national refer- ral centers (including those hospitals of 275 or more beds located in rural areas). A hospital which is classified as a rural hospital may ap- peal to the Secretary to be classified as a rural referral center under this clause on the basis of criteria (established by the Secretary) which shall allow the hospital to demonstrate that it should be so reclassified by reason of certain of its operating characteristics being similar to those of a typical urban hospital located in the same census region and which shall not require a rural osteopathic hospital to have more than 3,000 discharges in a year in order to be classi- fied as a rural referral center. Such characteris- tics may include wages, scope of services, serv- ice area, and the mix of medical specialties. The Secretary shall publish the criteria not later than August 17, 1984, for implementation by Oc- tober 1, 1984. An appeal allowed under this clause must be submitted to the Secretary (in such form and manner as the Secretary may prescribe) during the quarter before the first quarter of the hospital’s cost reporting period (or, in the case of a cost reporting period begin- ning during October 1984, during the first quar- ter of that period), and the Secretary must make a final determination with respect to such appeal within 60 days after the date the appeal was submitted. Any payment adjustments ne- cessitated by a reclassification based upon the appeal shall be effective at the beginning of such cost reporting period. (ii) The Secretary shall provide, under clause (i), for the classification of a rural hospital as a regional referral center if the hospital has a case mix index equal to or greater than the median case mix index for hospitals (other than hos- pitals with approved teaching programs) located in an urban area in the same region (as defined in paragraph (2)(D)), has at least 5,000 discharges a year or, if less, the median number of dis- charges in urban hospitals in the region in which the hospital is located (or, in the case of Page 3826 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww a rural osteopathic hospital, meets the criterion established by the Secretary under clause (i) with respect to the annual number of discharges for such hospitals), and meets any other criteria established by the Secretary under clause (i). (D)(i) For any cost reporting period beginning on or after April 1, 1990, with respect to a sub- section (d) hospital which is a sole community hospital, payment under paragraph (1)(A) shall be— (I) an amount based on 100 percent of the hospital’s target amount for the cost reporting period, as defined in subsection (b)(3)(C), or (II) the amount determined under paragraph (1)(A)(iii), whichever results in greater payment to the hos- pital. (ii) In the case of a sole community hospital that experiences, in a cost reporting period com- pared to the previous cost reporting period, a de- crease of more than 5 percent in its total num- ber of inpatient cases due to circumstances be- yond its control, the Secretary shall provide for such adjustment to the payment amounts under this subsection (other than under paragraph (9)) as may be necessary to fully compensate the hospital for the fixed costs it incurs in the pe- riod in providing inpatient hospital services, in- cluding the reasonable cost of maintaining nec- essary core staff and services. (iii) For purposes of this subchapter, the term ‘‘sole community hospital’’ means any hos- pital— (I) that the Secretary determines is located more than 35 road miles from another hos- pital, (II) that, by reason of factors such as the time required for an individual to travel to the nearest alternative source of appropriate inpa- tient care (in accordance with standards pro- mulgated by the Secretary), location, weather conditions, travel conditions, or absence of other like hospitals (as determined by the Sec- retary), is the sole source of inpatient hospital services reasonably available to individuals in a geographic area who are entitled to benefits under part A, or (III) that is located in a rural area and des- ignated by the Secretary as an essential ac- cess community hospital under section 1395i–4(i)(1) of this title as in effect on Sep- tember 30, 1997. (iv) The Secretary shall promulgate a stand- ard for determining whether a hospital meets the criteria for classification as a sole commu- nity hospital under clause (iii)(II) because of the time required for an individual to travel to the nearest alternative source of appropriate inpa- tient care. (v) If the Secretary determines that, in the case of a hospital located in a rural area and designated by the Secretary as an essential ac- cess community hospital under section 1395i–4(i)(1) of this title as in effect on Sep- tember 30, 1997, the hospital has incurred in- creases in reasonable costs during a cost report- ing period as a result of becoming a member of a rural health network (as defined in section 1395i–4(d) of this title) in the State in which it is located, and in incurring such increases, the hospital will increase its costs for subsequent cost reporting periods, the Secretary shall in- crease the hospital’s target amount under sub- section (b)(3)(C) to account for such incurred in- creases. (E)(i) The Secretary shall estimate the amount of reimbursement made for services de- scribed in section 1395y(a)(14) of this title with respect to which payment was made under part B in the base reporting periods referred to in paragraph (2)(A) and with respect to which pay- ment is no longer being made. (ii) The Secretary shall provide for an adjust- ment to the payment for subsection (d) hospitals in each fiscal year so as appropriately to reflect the net amount described in clause (i). (F)(i) Subject to subsection (r), for discharges occurring on or after May 1, 1986, the Secretary shall provide, in accordance with this subpara- graph, for an additional payment amount for each subsection (d) hospital which— (I) serves a significantly disproportionate number of low-income patients (as defined in clause (v)), or (II) is located in an urban area, has 100 or more beds, and can demonstrate that its net inpatient care revenues (excluding any of such revenues attributable to this subchapter or State plans approved under subchapter XIX), during the cost reporting period in which the discharges occur, for indigent care from State and local government sources exceed 30 per- cent of its total of such net inpatient care rev- enues during the period. (ii) Subject to clause (ix), the amount of such payment for each discharge shall be determined by multiplying (I) the sum of the amount deter- mined under paragraph (1)(A)(ii)(II) (or, if appli- cable, the amount determined under paragraph (1)(A)(iii)) and, for cases qualifying for addi- tional payment under subparagraph (A)(i), the amount paid to the hospital under subparagraph (A) for that discharge, by (II) the dispropor- tionate share adjustment percentage established under clause (iii) or (iv) for the cost reporting period in which the discharge occurs. (iii) The disproportionate share adjustment percentage for a cost reporting period for a hos- pital described in clause (i)(II) is equal to 35 per- cent. (iv) The disproportionate share adjustment percentage for a cost reporting period for a hos- pital that is not described in clause (i)(II) and that— (I) is located in an urban area and has 100 or more beds or is described in the second sen- tence of clause (v), is equal to the percent de- termined in accordance with the applicable formula described in clause (vii); (II) is located in an urban area and has less than 100 beds, is equal to 5 percent or, subject to clause (xiv) and for discharges occurring on or after April 1, 2001, is equal to the percent determined in accordance with clause (xiii); (III) is located in a rural area and is not de- scribed in subclause (IV) or (V) or in the sec- ond sentence of clause (v), is equal to 4 percent or, subject to clause (xiv) and for discharges occurring on or after April 1, 2001, is equal to the percent determined in accordance with clause (xii); Page 3827 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 6 So in original. Probably should be followed by ‘‘and’’. (IV) is located in a rural area, is classified as a rural referral center under subparagraph (C), and is classified as a sole community hospital under subparagraph (D), is equal to 10 percent or, if greater, the percent determined in ac- cordance with the applicable formula de- scribed in clause (viii) or, subject to clause (xiv) and for discharges occurring on or after April 1, 2001, the greater of the percentages de- termined under clause (x) or (xi); (V) is located in a rural area, is classified as a rural referral center under subparagraph (C), and is not classified as a sole community hos- pital under subparagraph (D), is equal to the percent determined in accordance with the ap- plicable formula described in clause (viii) or, subject to clause (xiv) and for discharges oc- curring on or after April 1, 2001, is equal to the percent determined in accordance with clause (xi); or (VI) is located in a rural area, is classified as a sole community hospital under subpara- graph (D), and is not classified as a rural refer- ral center under subparagraph (C), is 10 per- cent or, subject to clause (xiv) and for dis- charges occurring on or after April 1, 2001, is equal to the percent determined in accordance with clause (x). (v) In this subparagraph, a hospital ‘‘serves a significantly disproportionate number of low in- come patients’’ for a cost reporting period if the hospital has a disproportionate patient percent- age (as defined in clause (vi)) for that period which equals, or exceeds— (I) 15 percent, if the hospital is located in an urban area and has 100 or more beds, (II) 30 percent (or 15 percent, for discharges occurring on or after April 1, 2001), if the hos- pital is located in a rural area and has more than 100 beds, or is located in a rural area and is classified as a sole community hospital under subparagraph (D), (III) 40 percent (or 15 percent, for discharges occurring on or after April 1, 2001), if the hos- pital is located in an urban area and has less than 100 beds, or (IV) 45 percent (or 15 percent, for discharges occurring on or after April 1, 2001), if the hos- pital is located in a rural area and is not de- scribed in subclause (II). A hospital located in a rural area and with 500 or more beds also ‘‘serves a significantly dis- proportionate number of low income patients’’ for a cost reporting period if the hospital has a disproportionate patient percentage (as defined in clause (vi)) for that period which equals or ex- ceeds a percentage specified by the Secretary. (vi) In this subparagraph, the term ‘‘dispropor- tionate patient percentage’’ means, with respect to a cost reporting period of a hospital, the sum of— (I) the fraction (expressed as a percentage), the numerator of which is the number of such hospital’s patient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of this subchapter and were entitled to supple- mentary security income benefits (excluding any State supplementation) under subchapter XVI of this chapter, and the denominator of which is the number of such hospital’s patient days for such fiscal year which were made up of patients who (for such days) were entitled to benefits under part A of this subchapter, and (II) the fraction (expressed as a percentage), the numerator of which is the number of the hospital’s patient days for such period which consist of patients who (for such days) were el- igible for medical assistance under a State plan approved under subchapter XIX, but who were not entitled to benefits under part A of this subchapter, and the denominator of which is the total number of the hospital’s patient days for such period. In determining under subclause (II) the number of the hospital’s patient days for such period which consist of patients who (for such days) were eligible for medical assistance under a State plan approved under subchapter XIX, the Secretary may, to the extent and for the period the Secretary determines appropriate, include patient days of patients not so eligible but who are regarded as such because they receive bene- fits under a demonstration project approved under subchapter XI. (vii) The formula used to determine the dis- proportionate share adjustment percentage for a cost reporting period for a hospital described in clause (iv)(I) is— (I) in the case of such a hospital with a dis- proportionate patient percentage (as defined in clause (vi)) greater than 20.2— (a) for discharges occurring on or after April 1, 1990, and on or before December 31, 1990, (P¥20.2)(.65) + 5.62, (b) for discharges occurring on or after January 1, 1991, and on or before September 30, 1993, (P¥20.2)(.7) + 5.62, (c) for discharges occurring on or after Oc- tober 1, 1993, and on or before September 30, 1994, (P¥20.2)(.8) + 5.88, and (d) for discharges occurring on or after Oc- tober 1, 1994, (P¥20.2)(.825) + 5.88; or (II) in the case of any other such hospital— (a) for discharges occurring on or after April 1, 1990, and on or before December 31, 1990, (P¥15)(.6) + 2.5, (b) for discharges occurring on or after January 1, 1991, and on or before September 30, 1993, (P¥15)(.6) + 2.5,6 (c) for discharges occurring on or after Oc- tober 1, 1993, (P¥15)(.65) + 2.5, where ‘‘P’’ is the hospital’s disproportionate pa- tient percentage (as defined in clause (vi)). (viii) Subject to clause (xiv), the formula used to determine the disproportionate share adjust- ment percentage for a cost reporting period for a hospital described in clause (iv)(IV) or (iv)(V) is the percentage determined in accordance with the following formula: (P¥30)(.6) + 4.0, where ‘‘P’’ is the hospital’s disproportionate patient percentage (as defined in clause (vi)). (ix) In the case of discharges occurring— (I) during fiscal year 1998, the additional payment amount otherwise determined under clause (ii) shall be reduced by 1 percent; Page 3828 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (II) during fiscal year 1999, such additional payment amount shall be reduced by 2 per- cent; (III) during fiscal years 2000 and 2001, such additional payment amount shall be reduced by 3 percent and 2 percent, respectively; (IV) during fiscal year 2002, such additional payment amount shall be reduced by 3 per- cent; and (V) during fiscal year 2003 and each subse- quent fiscal year, such additional payment amount shall be reduced by 0 percent. (x) Subject to clause (xiv), for purposes of clause (iv)(VI) (relating to sole community hos- pitals), in the case of a hospital for a cost re- porting period with a disproportionate patient percentage (as defined in clause (vi)) that— (I) is less than 19.3, the disproportionate share adjustment percentage is determined in accordance with the following formula: (P¥15)(.65) + 2.5; (II) is equal to or exceeds 19.3, but is less than 30.0, such adjustment percentage is equal to 5.25 percent; or (III) is equal to or exceeds 30, such adjust- ment percentage is equal to 10 percent, where ‘‘P’’ is the hospital’s disproportionate pa- tient percentage (as defined in clause (vi)). (xi) Subject to clause (xiv), for purposes of clause (iv)(V) (relating to rural referral centers), in the case of a hospital for a cost reporting pe- riod with a disproportionate patient percentage (as defined in clause (vi)) that— (I) is less than 19.3, the disproportionate share adjustment percentage is determined in accordance with the following formula: (P¥15)(.65) + 2.5; (II) is equal to or exceeds 19.3, but is less than 30.0, such adjustment percentage is equal to 5.25 percent; or (III) is equal to or exceeds 30, such adjust- ment percentage is determined in accordance with the following formula: (P¥30)(.6) + 5.25, where ‘‘P’’ is the hospital’s disproportionate pa- tient percentage (as defined in clause (vi)). (xii) Subject to clause (xiv), for purposes of clause (iv)(III) (relating to small rural hospitals generally), in the case of a hospital for a cost re- porting period with a disproportionate patient percentage (as defined in clause (vi)) that— (I) is less than 19.3, the disproportionate share adjustment percentage is determined in accordance with the following formula: (P¥15)(.65) + 2.5; or (II) is equal to or exceeds 19.3, such adjust- ment percentage is equal to 5.25 percent, where ‘‘P’’ is the hospital’s disproportionate pa- tient percentage (as defined in clause (vi)). (xiii) Subject to clause (xiv), for purposes of clause (iv)(II) (relating to urban hospitals with less than 100 beds), in the case of a hospital for a cost reporting period with a disproportionate patient percentage (as defined in clause (vi)) that— (I) is less than 19.3, the disproportionate share adjustment percentage is determined in accordance with the following formula: (P¥15)(.65) + 2.5; or (II) is equal to or exceeds 19.3, such adjust- ment percentage is equal to 5.25 percent, where ‘‘P’’ is the hospital’s disproportionate pa- tient percentage (as defined in clause (vi)). (xiv)(I) In the case of discharges occurring on or after April 1, 2004, subject to subclause (II), there shall be substituted for the dispropor- tionate share adjustment percentage otherwise determined under clause (iv) (other than sub- clause (I)) or under clause (viii), (x), (xi), (xii), or (xiii), the disproportionate share adjustment percentage determined under clause (vii) (relat- ing to large, urban hospitals). (II) Under subclause (I), the disproportionate share adjustment percentage shall not exceed 12 percent for a hospital that is not classified as a rural referral center under subparagraph (C) or, in the case of discharges occurring on or after October 1, 2006, as a medicare-dependent, small rural hospital under subparagraph (G)(iv). (G)(i) For any cost reporting period beginning on or after April 1, 1990, and before October 1, 1994, or discharges occurring on or after October 1, 1997, and before April 1, 2025, in the case of a subsection (d) hospital which is a medicare-de- pendent, small rural hospital, payment under paragraph (1)(A) shall be equal to the sum of the amount determined under clause (ii) and the amount determined under paragraph (1)(A)(iii). (ii) The amount determined under this clause is— (I) for discharges occurring during the 36- month period beginning with the first day of the cost reporting period that begins on or after April 1, 1990, the amount by which the hospital’s target amount for the cost reporting period (as defined in subsection (b)(3)(D)) ex- ceeds the amount determined under paragraph (1)(A)(iii); and (II) for discharges occurring during any sub- sequent cost reporting period (or portion thereof) and before October 1, 1994, or dis- charges occurring on or after October 1, 1997, and before April 1, 2025, 50 percent (or 75 per- cent in the case of discharges occurring on or after October 1, 2006) of the amount by which the hospital’s target amount for the cost re- porting period or for discharges in the fiscal year (as defined in subsection (b)(3)(D)) ex- ceeds the amount determined under paragraph (1)(A)(iii). (iii) In the case of a medicare dependent, small rural hospital that experiences, in a cost report- ing period compared to the previous cost report- ing period, a decrease of more than 5 percent in its total number of inpatient cases due to cir- cumstances beyond its control, the Secretary shall provide for such adjustment to the pay- ment amounts under this subsection (other than under paragraph (9)) as may be necessary to fully compensate the hospital for the fixed costs it incurs in the period in providing inpatient hospital services, including the reasonable cost of maintaining necessary core staff and services. (iv) The term ‘‘medicare-dependent, small rural hospital’’ means, with respect to any cost reporting period to which clause (i) applies, any hospital— (I) that is located in— (aa) a rural area; or (bb) a State with no rural area (as defined in paragraph (2)(D)) and satisfies any of the criteria in subclause (I), (II), or (III) of para- graph (8)(E)(ii), Page 3829 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (II) that has not more than 100 beds, (III) that is not classified as a sole commu- nity hospital under subparagraph (D), and (IV) for which not less than 60 percent of its inpatient days or discharges during the cost reporting period beginning in fiscal year 1987, or two of the three most recently audited cost reporting periods for which the Secretary has a settled cost report, were attributable to in- patients entitled to benefits under part A. Subclause (I)(bb) shall apply for purposes of pay- ment under clause (ii) only for discharges of a hospital occurring on or after the effective date of a determination of medicare-dependent small rural hospital status made by the Secretary with respect to the hospital after February 9, 2018. For purposes of applying subclause (II) of paragraph (8)(E)(ii) under subclause (I)(bb), such subclause (II) shall be applied by inserting ‘‘as of January 1, 2018,’’ after ‘‘such State’’ each place it appears. (H) The Secretary may provide for such ad- justments to the payment amounts under this subsection as the Secretary deems appropriate to take into account the unique circumstances of hospitals located in Alaska and Hawaii. (I)(i) The Secretary shall provide by regula- tion for such other exceptions and adjustments to such payment amounts under this subsection as the Secretary deems appropriate. (ii) In making adjustments under clause (i) for transfer cases (as defined by the Secretary) in a fiscal year, not taking in account the effect of subparagraph (J), the Secretary may make ad- justments to each of the average standardized amounts determined under paragraph (3) to as- sure that the aggregate payments made under this subsection for such fiscal year are not greater or lesser than those that would have otherwise been made in such fiscal year. (J)(i) The Secretary shall treat the term ‘‘transfer case’’ (as defined in subparagraph (I)(ii)) as including the case of a qualified dis- charge (as defined in clause (ii)), which is classi- fied within a diagnosis-related group described in clause (iii), and which occurs on or after Oc- tober 1, 1998. In the case of a qualified discharge for which a substantial portion of the costs of care are incurred in the early days of the inpa- tient stay (as defined by the Secretary), in no case may the payment amount otherwise pro- vided under this subsection exceed an amount equal to the sum of— (I) 50 percent of the amount of payment under this subsection for transfer cases (as es- tablished under subparagraph (I)(i)), and (II) 50 percent of the amount of payment which would have been made under this sub- section with respect to the qualified discharge if no transfer were involved. (ii) For purposes of clause (i), subject to clause (iii), the term ‘‘qualified discharge’’ means a dis- charge classified with a diagnosis-related group (described in clause (iii)) of an individual from a subsection (d) hospital, if upon such discharge the individual— (I) is admitted as an inpatient to a hospital or hospital unit that is not a subsection (d) hospital for the provision of inpatient hospital services; (II) is admitted to a skilled nursing facility; (III) is provided home health services from a home health agency, if such services relate to the condition or diagnosis for which such indi- vidual received inpatient hospital services from the subsection (d) hospital, and if such services are provided within an appropriate pe- riod (as determined by the Secretary); (IV) for discharges occurring on or after Oc- tober 1, 2018, is provided hospice care by a hos- pice program; or (V) for discharges occurring on or after Oc- tober 1, 2000, the individual receives post dis- charge services described in clause (iv)(I). (iii) Subject to clause (iv), a diagnosis-related group described in this clause is— (I) 1 of 10 diagnosis-related groups selected by the Secretary based upon a high volume of discharges classified within such groups and a disproportionate use of post discharge services described in clause (ii); and (II) a diagnosis-related group specified by the Secretary under clause (iv)(II). (iv) The Secretary shall include in the pro- posed rule published under subsection (e)(5)(A) for fiscal year 2001, a description of the effect of this subparagraph. The Secretary shall include in the proposed rule published for fiscal year 2019, a description of the effect of clause (ii)(IV). The Secretary may include in the proposed rule (and in the final rule published under paragraph (6)) for fiscal year 2001 or a subsequent fiscal year, a description of— (I) post-discharge services not described in subclauses (I), (II), (III), and, in the case of proposed and final rules for fiscal year 2019 and subsequent fiscal years, (IV) of clause (ii), the receipt of which results in a qualified dis- charge; and (II) diagnosis-related groups described in clause (iii)(I) in addition to the 10 selected under such clause. (K)(i) Effective for discharges beginning on or after October 1, 2001, the Secretary shall estab- lish a mechanism to recognize the costs of new medical services and technologies under the payment system established under this sub- section. Such mechanism shall be established after notice and opportunity for public comment (in the publications required by subsection (e)(5) for a fiscal year or otherwise). Such mechanism shall be modified to meet the requirements of clause (viii). (ii) The mechanism established pursuant to clause (i) shall— (I) apply to a new medical service or tech- nology if, based on the estimated costs in- curred with respect to discharges involving such service or technology, the DRG prospec- tive payment rate otherwise applicable to such discharges under this subsection is inad- equate (applying a threshold specified by the Secretary that is the lesser of 75 percent of the standardized amount (increased to reflect the difference between cost and charges) or 75 per- cent of one standard deviation for the diag- nosis-related group involved); (II) provide for the collection of data with respect to the costs of a new medical service or technology described in subclause (I) for a Page 3830 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww period of not less than two years and not more than three years beginning on the date on which an inpatient hospital code is issued with respect to the service or technology; (III) provide for additional payment to be made under this subsection with respect to discharges involving a new medical service or technology described in subclause (I) that occur during the period described in subclause (II) in an amount that adequately reflects the estimated average cost of such service or tech- nology; and (IV) provide that discharges involving such a service or technology that occur after the close of the period described in subclause (II) will be classified within a new or existing di- agnosis-related group with a weighting factor under paragraph (4)(B) that is derived from cost data collected with respect to discharges occurring during such period. (iii) For purposes of clause (ii)(II), the term ‘‘inpatient hospital code’’ means any code that is used with respect to inpatient hospital serv- ices for which payment may be made under this subsection and includes an alphanumeric code issued under the International Classification of Diseases, 9th Revision, Clinical Modification (‘‘ICD–9–CM’’) and its subsequent revisions. (iv) For purposes of clause (ii)(III), the term ‘‘additional payment’’ means, with respect to a discharge for a new medical service or tech- nology described in clause (ii)(I), an amount that exceeds the prospective payment rate oth- erwise applicable under this subsection to dis- charges involving such service or technology that would be made but for this subparagraph. (v) The requirement under clause (ii)(III) for an additional payment may be satisfied by means of a new-technology group (described in subparagraph (L)), an add-on payment, a pay- ment adjustment, or any other similar mecha- nism for increasing the amount otherwise pay- able with respect to a discharge under this sub- section. The Secretary may not establish a sepa- rate fee schedule for such additional payment for such services and technologies, by utilizing a methodology established under subsection (a) or (h) of section 1395m of this title to determine the amount of such additional payment, or by other similar mechanisms or methodologies. (vi) For purposes of this subparagraph and sub- paragraph (L), a medical service or technology will be considered a ‘‘new medical service or technology’’ if the service or technology meets criteria established by the Secretary after no- tice and an opportunity for public comment. (vii) Under the mechanism under this subpara- graph, the Secretary shall provide for the addi- tion of new diagnosis and procedure codes in April 1 of each year, but the addition of such codes shall not require the Secretary to adjust the payment (or diagnosis-related group classi- fication) under this subsection until the fiscal year that begins after such date. (viii) The mechanism established pursuant to clause (i) shall be adjusted to provide, before publication of a proposed rule, for public input regarding whether a new service or technology represents an advance in medical technology that substantially improves the diagnosis or treatment of individuals entitled to benefits under part A as follows: (I) The Secretary shall make public and peri- odically update a list of all the services and technologies for which an application for addi- tional payment under this subparagraph is pending. (II) The Secretary shall accept comments, recommendations, and data from the public regarding whether the service or technology represents a substantial improvement. (III) The Secretary shall provide for a meet- ing at which organizations representing hos- pitals, physicians, such individuals, manufac- turers, and any other interested party may present comments, recommendations, and data to the clinical staff of the Centers for Medicare & Medicaid Services before publica- tion of a notice of proposed rulemaking re- garding whether service or technology rep- resents a substantial improvement. (ix) Before establishing any add-on payment under this subparagraph with respect to a new technology, the Secretary shall seek to identify one or more diagnosis-related groups associated with such technology, based on similar clinical or anatomical characteristics and the cost of the technology. Within such groups the Sec- retary shall assign an eligible new technology into a diagnosis-related group where the average costs of care most closely approximate the costs of care of using the new technology. No add-on payment under this subparagraph shall be made with respect to such new technology and this clause shall not affect the application of para- graph (4)(C)(iii). (L)(i) In establishing the mechanism under subparagraph (K), the Secretary may establish new-technology groups into which a new med- ical service or technology will be classified if, based on the estimated average costs incurred with respect to discharges involving such serv- ice or technology, the DRG prospective payment rate otherwise applicable to such discharges under this subsection is inadequate. (ii) Such groups— (I) shall not be based on the costs associated with a specific new medical service or tech- nology; but (II) shall, in combination with the applicable standardized amounts and the weighting fac- tors assigned to such groups under paragraph (4)(B), reflect such cost cohorts as the Sec- retary determines are appropriate for all new medical services and technologies that are likely to be provided as inpatient hospital services in a fiscal year. (iii) The methodology for classifying specific hospital discharges within a diagnosis-related group under paragraph (4)(A) or a new-tech- nology group shall provide that a specific hos- pital discharge may not be classified within both a diagnosis-related group and a new-tech- nology group. (M)(i) For cost reporting periods beginning on or after October 1, 2020, in the case of a sub- section (d) hospital that furnishes an allogeneic hematopoietic stem cell transplant to an indi- vidual during such a period, payment to such hospital for hematopoietic stem cell acquisition shall be made on a reasonable cost basis. The items included in such hematopoietic stem cell Page 3831 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww acquisition shall be specified by the Secretary through rulemaking. (ii) For purposes of this subparagraph, the term ‘‘allogeneic hematopoietic stem cell trans- plant’’ means, with respect to an individual, the intravenous infusion of hematopoietic cells de- rived from bone marrow, peripheral blood stem cells, or cord blood, but not including embryonic stem cells, of a donor to an individual that are or may be used to restore hematopoietic func- tion in such individual having an inherited or acquired deficiency or defect. (6) The Secretary shall provide for publication in the Federal Register, on or before the August 1 before each fiscal year (beginning with fiscal year 1984), of a description of the methodology and data used in computing the adjusted DRG prospective payment rates under this sub- section, including any adjustments required under subsection (e)(1)(B). (7) There shall be no administrative or judicial review under section 1395oo of this title or other- wise of— (A) the determination of the requirement, or the proportional amount, of any adjustment effected pursuant to subsection (e)(1) or the determination of the applicable percentage in- crease under paragraph (12)(A)(ii), (B) the establishment of diagnosis-related groups, of the methodology for the classifica- tion of discharges within such groups, and of the appropriate weighting factors thereof under paragraph (4), including the selection and revision of codes under paragraph (4)(D), and (C) the determination of whether services provided prior to a patient’s inpatient admis- sion are related to the admission (as described in subsection (a)(4)). (8)(A) In the case of any hospital which is lo- cated in an area which is, at any time after April 20, 1983, reclassified from an urban to a rural area, payments to such hospital for the first two cost reporting periods for which such reclassification is effective shall be made as fol- lows: (i) For the first such cost reporting period, payment shall be equal to the amount payable to such hospital for such reporting period on the basis of the rural classification, plus an amount equal to two-thirds of the amount (if any) by which— (I) the amount which would have been pay- able to such hospital for such reporting pe- riod on the basis of an urban classification, exceeds (II) the amount payable to such hospital for such reporting period on the basis of the rural classification. (ii) For the second such cost reporting pe- riod, payment shall be equal to the amount payable to such hospital for such reporting pe- riod on the basis of the rural classification, plus an amount equal to one-third of the amount (if any) by which— (I) the amount which would have been pay- able to such hospital for such reporting pe- riod on the basis of an urban classification, exceeds (II) the amount payable to such hospital for such reporting period on the basis of the rural classification. (B)(i) For purposes of this subsection, the Sec- retary shall treat a hospital located in a rural county adjacent to one or more urban areas as being located in the urban metropolitan statis- tical area to which the greatest number of work- ers in the county commute, if the rural county would otherwise be considered part of an urban area, under the standards for designating Metro- politan Statistical Areas (and for designating New England County Metropolitan Areas) de- scribed in clause (ii), if the commuting rates used in determining outlying counties (or, for New England, similar recognized areas) were de- termined on the basis of the aggregate number of resident workers who commute to (and, if ap- plicable under the standards, from) the central county or counties of all contiguous Metropoli- tan Statistical Areas (or New England County Metropolitan Areas). (ii) The standards described in this clause for cost reporting periods beginning in a fiscal year— (I) before fiscal year 2003, are the standards published in the Federal Register on January 3, 1980, or, at the election of the hospital with respect to fiscal years 2001 and 2002, standards so published on March 30, 1990; and (II) after fiscal year 2002, are the standards published in the Federal Register by the Di- rector of the Office of Management and Budget based on the most recent available decennial population data. Subparagraphs (C) and (D) shall not apply with respect to the application of subclause (I). (C)(i) If the application of subparagraph (B) or a decision of the Medicare Geographic Classi- fication Review Board or the Secretary under paragraph (10), by treating hospitals located in a rural county or counties as being located in an urban area, or by treating hospitals located in one urban area as being located in another urban area— (I) reduces the wage index for that urban area (as applied under this subsection) by 1 percentage point or less, the Secretary, in cal- culating such wage index under this sub- section, shall exclude those hospitals so treat- ed, or (II) reduces the wage index for that urban area by more than 1 percentage point (as ap- plied under this subsection), the Secretary shall calculate and apply such wage index under this subsection separately to hospitals located in such urban area (excluding all the hospitals so treated) and to the hospitals so treated (as if such hospitals were located in such urban area). (ii) If the application of subparagraph (B) or a decision of the Medicare Geographic Classifica- tion Review Board or the Secretary under para- graph (10), by treating hospitals located in a rural county or counties as not being located in the rural area in a State, reduces the wage index for that rural area (as applied under this sub- section), the Secretary shall calculate and apply such wage index under this subsection as if the hospitals so treated had not been excluded from calculation of the wage index for that rural area. (iii) The application of subparagraph (B) or a decision of the Medicare Geographic Classifica- Page 3832 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww tion Review Board or the Secretary under para- graph (10) may not result in the reduction of any county’s wage index to a level below the wage index for rural areas in the State in which the county is located. (iv) The application of subparagraph (B) or a decision of the Medicare Geographic Classifica- tion Review Board or of the Secretary under paragraph (10) may not result in a reduction in an urban area’s wage index if— (I) the urban area has a wage index below the wage index for rural areas in the State in which it is located; or (II) the urban area is located in a State that is composed of a single urban area. (v) This subparagraph shall apply with respect to discharges occurring in a fiscal year only if the Secretary uses a method for making adjust- ments to the DRG prospective payment rate for area differences in hospital wage levels under paragraph (3)(E) for the fiscal year that is based on the use of Metropolitan Statistical Area clas- sifications. (D) The Secretary shall make a proportional adjustment in the standardized amounts deter- mined under paragraph (3) to assure that the provisions of subparagraphs (B) and (C) or a de- cision of the Medicare Geographic Classification Review Board or the Secretary under paragraph (10) do not result in aggregate payments under this section that are greater or less than those that would otherwise be made. (E)(i) For purposes of this subsection, not later than 60 days after the receipt of an appli- cation (in a form and manner determined by the Secretary) from a subsection (d) hospital de- scribed in clause (ii), the Secretary shall treat the hospital as being located in the rural area (as defined in paragraph (2)(D)) of the State in which the hospital is located. (ii) For purposes of clause (i), a subsection (d) hospital described in this clause is a subsection (d) hospital that is located in an urban area (as defined in paragraph (2)(D)) and satisfies any of the following criteria: (I) The hospital is located in a rural census tract of a metropolitan statistical area (as de- termined under the most recent modification of the Goldsmith Modification, originally pub- lished in the Federal Register on February 27, 1992 (57 Fed. Reg. 6725)). (II) The hospital is located in an area des- ignated by any law or regulation of such State as a rural area (or is designated by such State as a rural hospital). (III) The hospital would qualify as a rural, regional, or national referral center under paragraph (5)(C) or as a sole community hos- pital under paragraph (5)(D) if the hospital were located in a rural area. (IV) The hospital meets such other criteria as the Secretary may specify. (9)(A) Notwithstanding section 1395f(b) of this title but subject to the provisions of section 1395e of this title, the amount of the payment with respect to the operating costs of inpatient hospital services of a subsection (d) Puerto Rico hospital for inpatient hospital discharges is equal to the sum of— (i) the applicable Puerto Rico percentage (specified in subparagraph (E)) of the Puerto Rico adjusted DRG prospective payment rate (determined under subparagraph (B) or (C)) for such discharges, (ii) the applicable Federal percentage (speci- fied in subparagraph (E)) of— (I) for discharges beginning in a fiscal year beginning on or after October 1, 1997, and be- fore October 1, 2003, the discharge-weighted average of— (aa) the national adjusted DRG prospec- tive payment rate (determined under para- graph (3)(D)) for hospitals located in a large urban area, (bb) such rate for hospitals located in other urban areas, and (cc) such rate for hospitals located in a rural area, for such discharges, adjusted in the manner provided in paragraph (3)(E) for different area wage levels; and (II) for discharges in a fiscal year begin- ning on or after October 1, 2003, the national DRG prospective payment rate determined under paragraph (3)(D)(iii) for hospitals lo- cated in any area for such discharges, ad- justed in the manner provided in paragraph (3)(E) for different area wage levels. As used in this section, the term ‘‘subsection (d) Puerto Rico hospital’’ means a hospital that is located in Puerto Rico and that would be a sub- section (d) hospital (as defined in paragraph (1)(B)) if it were located in one of the 50 States. (B) The Secretary shall determine a Puerto Rico adjusted DRG prospective payment rate, for each inpatient hospital discharge in fiscal year 1988 involving inpatient hospital services of a subsection (d) Puerto Rico hospital for which payment may be made under part A of this sub- chapter. Such rate shall be determined for such hospitals located in urban or rural areas within Puerto Rico, as follows: (i) The Secretary shall determine the target amount (as defined in subsection (b)(3)(A)) for the hospital for the cost reporting period be- ginning in fiscal year 1987 and increase such amount by prorating the applicable percent- age increase (as defined in subsection (b)(3)(B)) to update the amount to the midpoint in fiscal year 1988. (ii) The Secretary shall standardize the amount determined under clause (i) for each hospital by— (I) excluding an estimate of indirect med- ical education costs, (II) adjusting for variations among hos- pitals by area in the average hospital wage level, (III) adjusting for variations in case mix among hospitals, and (IV) excluding an estimate of the addi- tional payments to certain subsection (d) Puerto Rico hospitals to be made under sub- paragraph (D)(iii) (relating to dispropor- tionate share payments). (iii) The Secretary shall compute a dis- charge weighted average of the standardized amounts determined under clause (ii) for all hospitals located in an urban area and for all hospitals located in a rural area (as such terms are defined in paragraph (2)(D)). Page 3833 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (iv) The Secretary shall reduce the average standardized amount by a proportion equal to the proportion (estimated by the Secretary) of the amount of payments under this paragraph which are additional payments described in subparagraph (D)(i) (relating to outlier pay- ments). (v) For each discharge classified within a di- agnosis-related group for hospitals located in an urban or rural area, respectively, the Sec- retary shall establish a Puerto Rico DRG pro- spective payment rate equal to the product of— (I) the average standardized amount (com- puted under clause (iii) and reduced under clause (iv)) for hospitals located in an urban or rural area, respectively, and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis-re- lated group. (vi) The Secretary shall adjust the propor- tion (as estimated by the Secretary from time to time) of hospitals’ costs which are attrib- utable to wages and wage-related costs, of the Puerto Rico DRG prospective payment rate computed under clause (v) for area differences in hospital wage levels by a factor (established by the Secretary) reflecting the relative hos- pital wage level in the geographic area of the hospital compared to the Puerto Rican aver- age hospital wage level. (C) The Secretary shall determine a Puerto Rico adjusted DRG prospective payment rate, for each inpatient hospital discharge after fiscal year 1988 involving inpatient hospital services of a subsection (d) Puerto Rico hospital for which payment may be made under part A of this sub- chapter. Such rate shall be determined for hos- pitals located in urban or rural areas within Puerto Rico as follows: (i)(I) For discharges in a fiscal year after fis- cal year 1988 and before fiscal year 2004, the Secretary shall compute an average standard- ized amount for hospitals located in an urban area and for hospitals located in a rural area equal to the respective average standardized amount computed for the previous fiscal year under subparagraph (B)(iii) or under this clause, increased for fiscal year 1989 by the ap- plicable percentage increase under subsection (b)(3)(B), and adjusted for subsequent fiscal years in accordance with the final determina- tion of the Secretary under subsection (e)(4), and adjusted to reflect the most recent case- mix data available. (II) For discharges occurring in a fiscal year (beginning with fiscal year 2004), the Secretary shall compute an average standardized amount for hospitals located in any area of Puerto Rico that is equal to the average standardized amount computed under sub- clause (I) for fiscal year 2003 for hospitals in a large urban area (or, beginning with fiscal year 2005, for all hospitals in the previous fis- cal year) increased by the applicable percent- age increase under subsection (b)(3)(B) for the fiscal year involved. (ii) The Secretary shall reduce each of the average standardized amounts (or for fiscal year 2004 and thereafter, the average standard- ized amount) by a proportion equal to the pro- portion (estimated by the Secretary) of the amount of payments under this paragraph which are additional payments described in subparagraph (D)(i) (relating to outlier pay- ments). (iii) For each discharge classified within a diagnosis-related group for hospitals located in an urban or rural area, respectively, the Secretary shall establish a Puerto Rico DRG prospective payment rate equal to the product of— (I) the average standardized amount (com- puted under clause (i) and reduced under clause (ii)), and (II) the weighting factor (determined under paragraph (4)(B)) for that diagnosis-re- lated group. (iv)(I) The Secretary shall adjust the propor- tion (as estimated by the Secretary from time to time) of hospitals’ costs which are attrib- utable to wages and wage-related costs, of the Puerto Rico DRG prospective payment rate computed under clause (iii) for area dif- ferences in hospital wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the hospital compared to the Puerto Rico average hospital wage level. The second and third sentences of paragraph (3)(E)(i) shall apply to subsection (d) Puerto Rico hospitals under this clause in the same manner as they apply to subsection (d) hospitals under such paragraph and, for purposes of this clause, any reference in such paragraph to a subsection (d) hospital is deemed a reference to a subsection (d) Puerto Rico hospital. (II) For discharges occurring on or after Oc- tober 1, 2004, the Secretary shall substitute ‘‘62 percent’’ for the proportion described in the first sentence of clause (i), unless the applica- tion of this subclause would result in lower payments to a hospital than would otherwise be made. (D) The following provisions of paragraph (5) shall apply to subsection (d) Puerto Rico hos- pitals receiving payment under this paragraph in the same manner and to the extent as they apply to subsection (d) hospitals receiving pay- ment under this subsection: (i) Subparagraph (A) (relating to outlier pay- ments). (ii) Subparagraph (B) (relating to payments for indirect medical education costs), except that for this purpose the sum of the amount determined under subparagraph (A) of this paragraph and the amount paid to the hospital under clause (i) of this subparagraph shall be substituted for the sum referred to in para- graph (5)(B)(i)(I). (iii) Subparagraph (F) (relating to dispropor- tionate share payments), except that for this purpose the sum described in clause (ii) of this subparagraph shall be substituted for the sum referred to in paragraph (5)(F)(ii)(I). (iv) Subparagraph (H) (relating to exceptions and adjustments). (E) For purposes of subparagraph (A), for dis- charges occurring— (i) on or after October 1, 1987, and before Oc- tober 1, 1997, the applicable Puerto Rico per- Page 3834 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 7 So in original. Probably should be section ‘‘557(b)’’. centage is 75 percent and the applicable Fed- eral percentage is 25 percent; (ii) on or after October 1, 1997, and before April 1, 2004, the applicable Puerto Rico per- centage is 50 percent and the applicable Fed- eral percentage is 50 percent; (iii) on or after April 1, 2004, and before Octo- ber 1, 2004, the applicable Puerto Rico percent- age is 37.5 percent and the applicable Federal percentage is 62.5 percent; (iv) on or after October 1, 2004, and before January 1, 2016, the applicable Puerto Rico percentage is 25 percent and the applicable Federal percentage is 75 percent; and (v) on or after January 1, 2016, the applicable Puerto Rico percentage is 0 percent and the applicable Federal percentage is 100 percent. (10)(A) There is hereby established the Medi- care Geographic Classification Review Board (hereinafter in this paragraph referred to as the ‘‘Board’’). (B)(i) The Board shall be composed of 5 mem- bers appointed by the Secretary without regard to the provisions of title 5, governing appoint- ments in the competitive service. Two of such members shall be representative of subsection (d) hospitals located in a rural area under para- graph (2)(D). At least 1 member shall be knowl- edgeable in the field of analyzing costs with re- spect to the provision of inpatient hospital serv- ices. (ii) The Secretary shall make initial appoint- ments to the Board as provided in this para- graph within 180 days after December 19, 1989. (C)(i) The Board shall consider the application of any subsection (d) hospital requesting that the Secretary change the hospital’s geographic classification for purposes of determining for a fiscal year— (I) the hospital’s average standardized amount under paragraph (2)(D), or (II) the factor used to adjust the DRG pro- spective payment rate for area differences in hospital wage levels that applies to such hos- pital under paragraph (3)(E). (ii) A hospital requesting a change in geo- graphic classification under clause (i) for a fis- cal year shall submit its application to the Board not later than the first day of the 13- month period ending on September 30 of the pre- ceding fiscal year. (iii)(I) The Board shall render a decision on an application submitted under clause (i) not later than 180 days after the deadline referred to in clause (ii). (II) Appeal of decisions of the Board shall be subject to the provisions of section 557b 7 of title 5. The Secretary shall issue a decision on such an appeal not later than 90 days after the date on which the appeal is filed. The decision of the Secretary shall be final and shall not be subject to judicial review. (D)(i) The Secretary shall publish guidelines to be utilized by the Board in rendering deci- sions on applications submitted under this para- graph, and shall include in such guidelines the following: (I) Guidelines for comparing wages, taking into account (to the extent the Secretary de- termines appropriate) occupational mix, in the area in which the hospital is classified and the area in which the hospital is applying to be classified. (II) Guidelines for determining whether the county in which the hospital is located should be treated as being a part of a particular Met- ropolitan Statistical Area. (III) Guidelines for considering information provided by an applicant with respect to the effects of the hospital’s geographic classifica- tion on access to inpatient hospital services by medicare beneficiaries. (IV) Guidelines for considering the appro- priateness of the criteria used to define New England County Metropolitan Areas. (ii) Notwithstanding clause (i), if the Sec- retary uses a method for making adjustments to the DRG prospective payment rate for area dif- ferences in hospital wage levels under paragraph (3)(E) that is not based on the use of Metropoli- tan Statistical Area classifications, the Sec- retary may revise the guidelines published under clause (i) to the extent such guidelines are used to determine the appropriateness of the ge- ographic area in which the hospital is deter- mined to be located for purposes of making such adjustments. (iii) Under the guidelines published by the Sec- retary under clause (i), in the case of a hospital which has ever been classified by the Secretary as a rural referral center under paragraph (5)(C), the Board may not reject the application of the hospital under this paragraph on the basis of any comparison between the average hourly wage of the hospital and the average hourly wage of hospitals in the area in which it is lo- cated. (iv) The Secretary shall publish the guidelines described in clause (i) by July 1, 1990. (v) Any decision of the Board to reclassify a subsection (d) hospital for purposes of the ad- justment factor described in subparagraph (C)(i)(II) for fiscal year 2001 or any fiscal year thereafter shall be effective for a period of 3 fis- cal years, except that the Secretary shall estab- lish procedures under which a subsection (d) hospital may elect to terminate such reclassi- fication before the end of such period. (vi) Such guidelines shall provide that, in making decisions on applications for reclassi- fication for the purposes described in clause (v) for fiscal year 2003 and any succeeding fiscal year, the Board shall base any comparison of the average hourly wage for the hospital with the average hourly wage for hospitals in an area on— (I) an average of the average hourly wage amount for the hospital from the most re- cently published hospital wage survey data of the Secretary (as of the date on which the hos- pital applies for reclassification) and such amount from each of the two immediately pre- ceding surveys; and (II) an average of the average hourly wage amount for hospitals in such area from the most recently published hospital wage survey data of the Secretary (as of the date on which the hospital applies for reclassification) and such amount from each of the two imme- diately preceding surveys. Page 3835 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (E)(i) The Board shall have full power and au- thority to make rules and establish procedures, not inconsistent with the provisions of this sub- chapter or regulations of the Secretary, which are necessary or appropriate to carry out the provisions of this paragraph. In the course of any hearing the Board may administer oaths and affirmations. The provisions of subsections (d) and (e) of section 405 of this title with re- spect to subpenas shall apply to the Board to the same extent as such provisions apply to the Sec- retary with respect to subchapter II. (ii) The Board is authorized to engage such technical assistance and to receive such infor- mation as may be required to carry out its func- tions, and the Secretary shall, in addition, make available to the Board such secretarial, clerical, and other assistance as the Board may require to carry out its functions. (F)(i) Each member of the Board who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay pre- scribed for grade GS–18 of the General Schedule under section 5332 of title 5 for each day (includ- ing travel time) during which such member is engaged in the performance of the duties of the Board. Each member of the Board who is an offi- cer or employee of the United States shall serve without compensation in addition to that re- ceived for service as an officer or employee of the United States. (ii) Members of the Board shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, while away from their homes or regular places of business in the performance of services for the Board. (11) ADDITIONAL PAYMENTS FOR MANAGED CARE ENROLLEES.— (A) IN GENERAL.—For portions of cost report- ing periods occurring on or after January 1, 1998, the Secretary shall provide for an addi- tional payment amount for each applicable discharge of any subsection (d) hospital that has an approved medical residency training program. (B) APPLICABLE DISCHARGE.—For purposes of this paragraph, the term ‘‘applicable dis- charge’’ means the discharge of any individual who is enrolled under a risk-sharing contract with an eligible organization under section 1395mm of this title and who is entitled to benefits under part A or any individual who is enrolled with a Medicare+ Choice organization under part C. (C) DETERMINATION OF AMOUNT.—The amount of the payment under this paragraph with re- spect to any applicable discharge shall be equal to the applicable percentage (as defined in subsection (h)(3)(D)(ii)) of the estimated av- erage per discharge amount that would other- wise have been paid under paragraph (5)(B) if the individuals had not been enrolled as de- scribed in subparagraph (B). (D) SPECIAL RULE FOR HOSPITALS UNDER REIM- BURSEMENT SYSTEM.—The Secretary shall es- tablish rules for the application of this para- graph to a hospital reimbursed under a reim- bursement system authorized under section 1395f(b)(3) of this title in the same manner as it would apply to the hospital if it were not re- imbursed under such section. (12) PAYMENT ADJUSTMENT FOR LOW-VOLUME HOSPITALS.— (A) IN GENERAL.—In addition to any pay- ments calculated under this section for a sub- section (d) hospital, for discharges occurring during a fiscal year (beginning with fiscal year 2005), the Secretary shall provide for an addi- tional payment amount to each low-volume hospital (as defined in subparagraph (C)(i)) for discharges occurring during that fiscal year that is equal to the applicable percentage in- crease (determined under subparagraph (B) or (D) for the hospital involved) in the amount paid to such hospital under this section for such discharges (determined without regard to this paragraph). (B) APPLICABLE PERCENTAGE INCREASE.—For discharges occurring in fiscal years 2005 through 2010 and for discharges occurring dur- ing the portion of fiscal year 2025 beginning on April 1, 2025, and ending on September 30, 2025, and in fiscal year 2026 and subsequent fiscal years, the Secretary shall determine an appli- cable percentage increase for purposes of sub- paragraph (A) as follows: (i) The Secretary shall determine the em- pirical relationship for subsection (d) hos- pitals between the standardized cost-per- case for such hospitals and the total number of discharges of such hospitals and the amount of the additional incremental costs (if any) that are associated with such num- ber of discharges. (ii) The applicable percentage increase shall be determined based upon such rela- tionship in a manner that reflects, based upon the number of such discharges for a subsection (d) hospital, such additional in- cremental costs. (iii) In no case shall the applicable per- centage increase exceed 25 percent. (C) DEFINITIONS.— (i) LOW-VOLUME HOSPITAL.—For purposes of this paragraph, the term ‘‘low-volume hos- pital’’ means, for a fiscal year or portion of a fiscal year, a subsection (d) hospital (as de- fined in paragraph (1)(B)) that the Secretary determines is located more than 25 road miles (or, with respect to fiscal years 2011 through 2024 and the portion of fiscal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, 15 road miles) from an- other subsection (d) hospital and has— (I) with respect to each of fiscal years 2005 through 2010, less than 800 discharges during the fiscal year; (II) with respect to each of fiscal years 2011 through 2018, less than 1,600 discharges of individuals entitled to, or enrolled for, benefits under part A during the fiscal year or portion of fiscal year; (III) with respect to each of fiscal years 2019 through 2024 and the portion of fiscal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, less than 3,800 discharges during the fiscal year; and (IV) with respect to the portion of fiscal year 2025 beginning on April 1, 2025, and Page 3836 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 8 So in original. Probably should be ‘‘section’’. 9 So in original. ending on September 30, 2025, and fiscal year 2026 and each subsequent fiscal year, less than 800 discharges during the fiscal year. (ii) DISCHARGE.—For purposes of subpara- graphs (B) and (D) and clause (i), the term ‘‘discharge’’ means an inpatient acute care discharge of an individual regardless (except as provided in clause (i)(II) and subpara- graph (D)(i)) of whether the individual is en- titled to benefits under part A. (iii) TREATMENT OF INDIAN HEALTH SERVICE AND NON-INDIAN HEALTH SERVICE FACILITIES.— For purposes of determining whether— (I) a subsection (d) hospital of the Indian Health Service (whether operated by such Service or by an Indian tribe or tribal or- ganization (as those terms are defined in section 1603 of title 25)), or (II) a subsection (d) hospital other than a hospital of the Indian Health Service meets the mileage criterion under clause (i) with respect to fiscal year 2011 or a suc- ceeding fiscal year, the Secretary shall apply the policy described in the regula- tion at part 8 412.101(e) of title 42, Code of Federal Regulations (as in effect on March 23, 2018). (D) TEMPORARY APPLICABLE PERCENTAGE IN- CREASE.—For discharges occurring in fiscal years 2011 through 2024 or during the portion of fiscal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, the Secretary shall determine an applicable percentage in- crease for purposes of subparagraph (A) using a continuous linear sliding scale ranging from 25 percent for low-volume hospitals— (i) with respect to each of fiscal years 2011 through 2018, with 200 or fewer discharges of individuals entitled to, or enrolled for, bene- fits under part A in the fiscal year or the portion of fiscal year to 0 percent for low- volume hospitals with greater than 1,600 dis- charges of such individuals in the fiscal year or the portion of fiscal year or portion of fis- cal year; 9 and (ii) with respect to each of fiscal years 2019 through 2024 and the portion of fiscal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, with 500 or fewer dis- charges in the fiscal year to 0 percent for low-volume hospitals with greater than 3,800 discharges in the fiscal year. (13)(A) In order to recognize commuting pat- terns among geographic areas, the Secretary shall establish a process through application or otherwise for an increase of the wage index ap- plied under paragraph (3)(E) for subsection (d) hospitals located in a qualifying county de- scribed in subparagraph (B) in the amount com- puted under subparagraph (D) based on out-mi- gration of hospital employees who reside in that county to any higher wage index area. (B) The Secretary shall establish criteria for a qualifying county under this subparagraph based on the out-migration referred to in subpara- graph (A) and differences in the area wage indi- ces. Under such criteria the Secretary shall, uti- lizing such data as the Secretary determines to be appropriate, establish— (i) a threshold percentage, established by the Secretary, of the weighted average of the area wage index or indices for the higher wage index areas involved; (ii) a threshold (of not less than 10 percent) for minimum out-migration to a higher wage index area or areas; and (iii) a requirement that the average hourly wage of the hospitals in the qualifying county equals or exceeds the average hourly wage of all the hospitals in the area in which the qualifying county is located. (C) For purposes of this paragraph, the term ‘‘higher wage index area’’ means, with respect to a county, an area with a wage index that ex- ceeds that of the county. (D) The increase in the wage index under sub- paragraph (A) for a qualifying county shall be equal to the percentage of the hospital employ- ees residing in the qualifying county who are employed in any higher wage index area multi- plied by the sum of the products, for each higher wage index area of— (i) the difference between— (I) the wage index for such higher wage index area, and (II) the wage index of the qualifying coun- ty; and (ii) the number of hospital employees resid- ing in the qualifying county who are employed in such higher wage index area divided by the total number of hospital employees residing in the qualifying county who are employed in any higher wage index area. (E) The process under this paragraph may be based upon the process used by the Medicare Ge- ographic Classification Review Board under paragraph (10). As the Secretary determines to be appropriate to carry out such process, the Secretary may require hospitals (including sub- section (d) hospitals and other hospitals) and critical access hospitals, as required under sec- tion 1395cc(a)(1)(T) of this title, to submit data regarding the location of residence, or the Sec- retary may use data from other sources. (F) A wage index increase under this para- graph shall be effective for a period of 3 fiscal years, except that the Secretary shall establish procedures under which a subsection (d) hospital may elect to waive the application of such wage index increase. (G) A hospital in a county that has a wage index increase under this paragraph for a period and that has not waived the application of such an increase under subparagraph (F) is not eligi- ble for reclassification under paragraph (8) or (10) during that period. (H) Any increase in a wage index under this paragraph for a county shall not be taken into account for purposes of— (i) computing the wage index for portions of the wage index area (not including the county) in which the county is located; or (ii) applying any budget neutrality adjust- ment with respect to such index under para- graph (8)(D). (I) The thresholds described in subparagraph (B), data on hospital employees used under this Page 3837 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww paragraph, and any determination of the Sec- retary under the process described in subpara- graph (E) shall be final and shall not be subject to judicial review. (e) Proportional adjustments in applicable per- centage increases (1)(A) For cost reporting periods of hospitals beginning in fiscal year 1984 or fiscal year 1985, the Secretary shall provide for such propor- tional adjustment in the applicable percentage increase (otherwise applicable to the periods under subsection (b)(3)(B)) as may be necessary to assure that— (i) the aggregate payment amounts other- wise provided under subsection (d)(1)(A)(i)(I) for that fiscal year for operating costs of inpa- tient hospital services of hospitals (excluding payments made under section 1395cc(a)(1)(F) of this title), are not greater or less than— (ii) the target percentage (as defined in sub- section (d)(1)(C)) of the payment amounts which would have been payable for such serv- ices for those same hospitals for that fiscal year under this section under the law as in ef- fect before April 20, 1983 (excluding payments made under section 1395cc(a)(1)(F) of this title); except that the adjustment made under this sub- paragraph shall apply only to subsection (d) hos- pitals and shall not apply for purposes of mak- ing computations under subsection (d)(2)(B)(ii) or subsection (d)(3)(A). (B) For discharges occurring in fiscal year 1984 or fiscal year 1985, the Secretary shall provide under subsections (d)(2)(F) and (d)(3)(C) for such equal proportional adjustment in each of the av- erage standardized amounts otherwise computed for that fiscal year as may be necessary to as- sure that— (i) the aggregate payment amounts other- wise provided under subsection (d)(1)(A)(i)(II) and (d)(5) for that fiscal year for operating costs of inpatient hospital services of hos- pitals (excluding payments made under sec- tion 1395cc(a)(1)(F) of this title), are not greater or less than— (ii) the DRG percentage (as defined in sub- section (d)(1)(C)) of the payment amounts which would have been payable for such serv- ices for those same hospitals for that fiscal year under this section under the law as in ef- fect before April 20, 1983 (excluding payments made under section 1395cc(a)(1)(F) of this title). (C) For discharges occurring in fiscal year 1988, the Secretary shall provide for such equal proportional adjustment in each of the average standardized amounts otherwise computed under subsection (d)(3) for that fiscal year as may be necessary to assure that— (i) the aggregate payment amounts other- wise provided under subsections (d)(1)(A)(iii), (d)(5), and (d)(9) for that fiscal year for oper- ating costs of inpatient hospital services of subsection (d) hospitals and subsection (d) Puerto Rico hospitals, are not greater or less than— (ii) the payment amounts that would have been payable for such services for those same hospitals for that fiscal year but for the enact- ment of the amendments made by section 9304 of the Omnibus Budget Reconciliation Act of 1986. (2) Repealed. Pub. L. 105–33, title IV, § 4022(b)(1)(A)(i), Aug. 5, 1997, 111 Stat. 354. (3) Repealed. Pub. L. 109–432, div. B, title I, § 106(c)(2), Dec. 20, 2006, 120 Stat. 2983. (4)(A) Taking into consideration the rec- ommendations of the Commission, the Secretary shall recommend for each fiscal year (beginning with fiscal year 1988) an appropriate change fac- tor for inpatient hospital services for discharges in that fiscal year which will take into account amounts necessary for the efficient and effective delivery of medically appropriate and necessary care of high quality. The appropriate change factor may be different for all large urban sub- section (d) hospitals, other urban subsection (d) hospitals, urban subsection (d) Puerto Rico hos- pitals, rural subsection (d) hospitals, and rural subsection (d) Puerto Rico hospitals, and all other hospitals and units not paid under sub- section (d), and may vary among such other hos- pitals and units. (B) In addition to the recommendation made under subparagraph (A), the Secretary shall, taking into consideration the recommendations of the Commission under paragraph (2)(B), rec- ommend for each fiscal year (beginning with fis- cal year 1992) other appropriate changes in each existing reimbursement policy under this sub- chapter under which payments to an institution are based upon prospectively determined rates. (5) The Secretary shall cause to have pub- lished in the Federal Register, not later than— (A) the April 1 before each fiscal year (begin- ning with fiscal year 1986), the Secretary’s pro- posed recommendations under paragraph (4) for that fiscal year for public comment, and (B) the August 1 before such fiscal year after such consideration of public comment on the proposal as is feasible in the time available, the Secretary’s final recommendations under such paragraph for that year. The Secretary shall include in the publication referred to in subparagraph (A) for a fiscal year the report of the Commission’s recommenda- tions submitted under paragraph (3) for that fis- cal year. To the extent that the Secretary’s rec- ommendations under paragraph (4) differ from the Commission’s recommendations for that fis- cal year, the Secretary shall include in the pub- lication referred to in subparagraph (A) an ex- planation of the Secretary’s grounds for not fol- lowing the Commission’s recommendations. (f) Reporting of costs of hospitals receiving pay- ments on basis of prospective rates (1)(A) The Secretary shall maintain a system for the reporting of costs of hospitals receiving payments computed under subsection (d). (B)(i) Subject to clause (ii), the Secretary shall place into effect a standardized electronic cost reporting format for hospitals under this subchapter. (ii) The Secretary may delay or waive the im- plementation of such format in particular in- Page 3838 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww stances where such implementation would result in financial hardship (in particular with respect to hospitals with a small percentage of inpa- tients entitled to benefits under this sub- chapter). (2) If the Secretary determines, based upon in- formation supplied by a quality improvement organization under part B of subchapter XI, that a hospital, in order to circumvent the payment method established under subsection (b) or (d) of this section, has taken an action that results in the admission of individuals entitled to benefits under part A unnecessarily, unnecessary mul- tiple admissions of the same such individuals, or other inappropriate medical or other practices with respect to such individuals, the Secretary may— (A) deny payment (in whole or in part) under part A with respect to inpatient hospital serv- ices provided with respect to such an unneces- sary admission (or subsequent admission of the same individual), or (B) require the hospital to take other correc- tive action necessary to prevent or correct the inappropriate practice. (3) The provisions of subsections (c) through (g) of section 1320a–7 of this title shall apply to determinations made under paragraph (2) in the same manner as they apply to exclusions ef- fected under section 1320a–7(b)(13) of this title. (g) Prospective payment for capital-related costs; return on equity capital for hospitals (1)(A) Notwithstanding section 1395x(v) of this title, instead of any amounts that are otherwise payable under this subchapter with respect to the reasonable costs of subsection (d) hospitals and subsection (d) Puerto Rico hospitals for cap- ital-related costs of inpatient hospital services, the Secretary shall, for hospital cost reporting periods beginning on or after October 1, 1991, provide for payments for such costs in accord- ance with a prospective payment system estab- lished by the Secretary. Aggregate payments made under subsection (d) and this subsection during fiscal years 1992 through 1995 shall be re- duced in a manner that results in a reduction (as estimated by the Secretary) in the amount of such payments equal to a 10 percent reduction in the amount of payments attributable to capital- related costs that would otherwise have been made during such fiscal year had the amount of such payments been based on reasonable costs (as defined in section 1395x(v) of this title). For discharges occurring after September 30, 1993, the Secretary shall reduce by 7.4 percent the unadjusted standard Federal capital payment rate (as described in 42 CFR 412.308(c), as in ef- fect on August 10, 1993) and shall (for hospital cost reporting periods beginning on or after Oc- tober 1, 1993) redetermine which payment meth- odology is applied to the hospital under such system to take into account such reduction. In addition to the reduction described in the pre- ceding sentence, for discharges occurring on or after October 1, 1997, the Secretary shall apply the budget neutrality adjustment factor used to determine the Federal capital payment rate in effect on September 30, 1995 (as described in sec- tion 412.352 of title 42 of the Code of Federal Regulations), to (i) the unadjusted standard Federal capital payment rate (as described in section 412.308(c) of that title, as in effect on September 30, 1997), and (ii) the unadjusted hos- pital-specific rate (as described in section 412.328(e)(1) of that title, as in effect on Sep- tember 30, 1997), and, for discharges occurring on or after October 1, 1997, and before October 1, 2002, reduce the rates described in clauses (i) and (ii) by 2.1 percent. (B) Such system— (i) shall provide for (I) a payment on a per discharge basis, and (II) an appropriate weighting of such payment amount as relates to the classification of the discharge; (ii) may provide for an adjustment to take into account variations in the relative costs of capital and construction for the different types of facilities or areas in which they are located; (iii) may provide for such exceptions (includ- ing appropriate exceptions to reflect capital obligations) as the Secretary determines to be appropriate, and (iv) may provide for suitable adjustment to reflect hospital occupancy rate. (C) In this paragraph, the term ‘‘capital-re- lated costs’’ has the meaning given such term by the Secretary under subsection (a)(4) as of Sep- tember 30, 1987, and does not include a return on equity capital. (2)(A) The Secretary shall provide that the amount which is allowable, with respect to rea- sonable costs of inpatient hospital services for which payment may be made under this sub- chapter, for a return on equity capital for hos- pitals shall, for cost reporting periods beginning on or after April 20, 1983, be equal to amounts otherwise allowable under regulations in effect on March 1, 1983, except that the rate of return to be recognized shall be equal to the applicable percentage (described in subparagraph (B)) of the average of the rates of interest, for each of the months any part of which is included in the reporting period, on obligations issued for pur- chase by the Federal Hospital Insurance Trust Fund. (B) In this paragraph, the ‘‘applicable percent- age’’ is— (i) 75 percent, for cost reporting periods be- ginning during fiscal year 1987, (ii) 50 percent, for cost reporting periods be- ginning during fiscal year 1988, (iii) 25 percent, for cost reporting periods be- ginning during fiscal year 1989, and (iv) 0 percent, for cost reporting periods be- ginning on or after October 1, 1989. (3)(A) Except as provided in subparagraph (B), in determining the amount of the payments that may be made under this subchapter with respect to all the capital-related costs of inpatient hos- pital services of a subsection (d) hospital and a subsection (d) Puerto Rico hospital, the Sec- retary shall reduce the amounts of such pay- ments otherwise established under this sub- chapter by— (i) 3.5 percent for payments attributable to portions of cost reporting periods occurring during fiscal year 1987, (ii) 7 percent for payments attributable to portions of cost reporting periods or dis- Page 3839 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww charges (as the case may be) occurring during fiscal year 1988 on or after October 1, 1987, and before January 1, 1988, (iii) 12 percent for payments attributable to portions of cost reporting periods or dis- charges (as the case may be) in fiscal year 1988, occurring on or after January 1, 1988, (iv) 15 percent for payments attributable to portions of cost reporting periods or dis- charges (as the case may be) occurring during fiscal year 1989, and (v) 15 percent for payments attributable to portions of cost reporting periods or dis- charges (as the case may be) occurring during the period beginning January 1, 1990, and end- ing September 30, 1991. (B) Subparagraph (A) shall not apply to pay- ments with respect to the capital-related costs of any hospital that is a sole community hos- pital (as defined in subsection (d)(5)(D)(iii)) or a critical access hospital (as defined in section 1395x(mm)(1) of this title). (4) In determining the amount of the pay- ments that are attributable to portions of cost reporting periods occurring during fiscal years 1998 through 2002 and that may be made under this subchapter with respect to capital-related costs of inpatient hospital services of a hospital which is described in clause (i), (ii), or (iv) of subsection (d)(1)(B) or a unit described in the matter after clause (v) of such subsection, the Secretary shall reduce the amounts of such pay- ments otherwise determined under this sub- chapter by 15 percent. (h) Payments for direct graduate medical edu- cation costs (1) Substitution of special payment rules Notwithstanding section 1395x(v) of this title, instead of any amounts that are other- wise payable under this subchapter with re- spect to the reasonable costs of hospitals for direct graduate medical education costs, the Secretary shall provide for payments for such costs in accordance with paragraph (3) of this subsection. In providing for such payments, the Secretary shall provide for an allocation of such payments between part A and part B (and the trust funds established under the re- spective parts) as reasonably reflects the pro- portion of direct graduate medical education costs of hospitals associated with the provi- sion of services under each respective part. (2) Determination of hospital-specific approved FTE resident amounts The Secretary shall determine, for each hos- pital with an approved medical residency training program, an approved FTE resident amount for each cost reporting period begin- ning on or after July 1, 1985, as follows: (A) Determining allowable average cost per FTE resident in a hospital’s base period The Secretary shall determine, for the hospital’s cost reporting period that began during fiscal year 1984, the average amount recognized as reasonable under this sub- chapter for direct graduate medical edu- cation costs of the hospital for each full- time-equivalent resident. (B) Updating to the first cost reporting pe- riod (i) In general The Secretary shall update each average amount determined under subparagraph (A) by the percentage increase in the con- sumer price index during the 12-month cost reporting period described in such subparagraph. (ii) Exception The Secretary shall not perform an up- date under clause (i) in the case of a hos- pital if the hospital’s reporting period, de- scribed in subparagraph (A), began on or after July 1, 1984, and before October 1, 1984. (C) Amount for first cost reporting period For the first cost reporting period of the hospital beginning on or after July 1, 1985, the approved FTE resident amount for the hospital is equal to the amount determined under subparagraph (B) increased by 1 per- cent. (D) Amount for subsequent cost reporting pe- riods (i) In general Except as provided in a subsequent clause, for each subsequent cost reporting period, the approved FTE resident amount for the hospital is equal to the approved FTE resident amount determined under this paragraph for the previous cost re- porting period updated, through the mid- point of the period, by projecting the esti- mated percentage change in the consumer price index during the 12-month period ending at that midpoint, with appropriate adjustments to reflect previous under- or over-estimations under this subparagraph in the projected percentage change in the consumer price index. (ii) Freeze in update for fiscal years 1994 and 1995 For cost reporting periods beginning dur- ing fiscal year 1994 or fiscal year 1995, the approved FTE resident amount for a hos- pital shall not be updated under clause (i) for a resident who is not a primary care resident (as defined in paragraph (5)(H)) or a resident enrolled in an approved medical residency training program in obstetrics and gynecology. (iii) Floor for locality adjusted national av- erage per resident amount The approved FTE resident amount for a hospital for the cost reporting period be- ginning during fiscal year 2001 shall not be less than 70 percent, and for the cost re- porting period beginning during fiscal year 2002 shall not be less than 85 percent, of the locality adjusted national average per resident amount computed under subpara- graph (E) for the hospital and period. Page 3840 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (iv) Adjustment in rate of increase for hos- pitals with FTE approved amount above 140 percent of locality adjusted national average per resident amount (I) Freeze for fiscal years 2001 and 2002 and 2004 through 2013 For a cost reporting period beginning during fiscal year 2001 or fiscal year 2002 or during the period beginning with fis- cal year 2004 and ending with fiscal year 2013, if the approved FTE resident amount for a hospital for the preceding cost reporting period exceeds 140 percent of the locality adjusted national average per resident amount computed under subparagraph (E) for that hospital and period, subject to subclause (III), the ap- proved FTE resident amount for the pe- riod involved shall be the same as the approved FTE resident amount for the hospital for such preceding cost report- ing period. (II) 2 percent decrease in update for fis- cal years 2003, 2004, and 2005 For the cost reporting period begin- ning during fiscal year 2003, if the ap- proved FTE resident amount for a hos- pital for the preceding cost reporting pe- riod exceeds 140 percent of the locality adjusted national average per resident amount computed under subparagraph (E) for that hospital and preceding pe- riod, the approved FTE resident amount for the period involved shall be updated in the manner described in subparagraph (D)(i) except that, subject to subclause (III), the consumer price index applied for a 12-month period shall be reduced (but not below zero) by 2 percentage points. (III) No adjustment below 140 percent In no case shall subclause (I) or (II) re- duce an approved FTE resident amount for a hospital for a cost reporting period below 140 percent of the locality adjusted national average per resident amount computed under subparagraph (E) for such hospital and period. (E) Determination of locality adjusted na- tional average per resident amount The Secretary shall determine a locality adjusted national average per resident amount with respect to a cost reporting pe- riod of a hospital beginning during a fiscal year as follows: (i) Determining hospital single per resident amount The Secretary shall compute for each hospital operating an approved graduate medical education program a single per resident amount equal to the average (weighted by number of full-time equiva- lent residents, as determined under para- graph (4)) of the primary care per resident amount and the non-primary care per resi- dent amount computed under paragraph (2) for cost reporting periods ending during fiscal year 1997. (ii) Standardizing per resident amounts The Secretary shall compute a standard- ized per resident amount for each such hospital by dividing the single per resident amount computed under clause (i) by an average of the 3 geographic index values (weighted by the national average weight for each of the work, practice expense, and malpractice components) as applied under section 1395w–4(e) of this title for 1999 for the fee schedule area in which the hospital is located. (iii) Computing of weighted average The Secretary shall compute the average of the standardized per resident amounts computed under clause (ii) for such hos- pitals, with the amount for each hospital weighted by the average number of full- time equivalent residents at such hospital (as determined under paragraph (4)). (iv) Computing national average per resi- dent amount The Secretary shall compute the na- tional average per resident amount, for a hospital’s cost reporting period that begins during fiscal year 2001, equal to the weighted average computed under clause (iii) increased by the estimated percentage increase in the consumer price index for all urban consumers during the period be- ginning with the month that represents the midpoint of the cost reporting periods described in clause (i) and ending with the midpoint of the hospital’s cost reporting period that begins during fiscal year 2001. (v) Adjusting for locality The Secretary shall compute the product of— (I) the national average per resident amount computed under clause (iv) for the hospital, and (II) the geographic index value average (described and applied under clause (ii)) for the fee schedule area in which the hospital is located. (vi) Computing locality adjusted amount The locality adjusted national per resi- dent amount for a hospital for— (I) the cost reporting period beginning during fiscal year 2001 is the product computed under clause (v); or (II) each subsequent cost reporting pe- riod is equal to the locality adjusted na- tional per resident amount for the hos- pital for the previous cost reporting pe- riod (as determined under this clause) updated, through the midpoint of the pe- riod, by projecting the estimated per- centage change in the consumer price index for all urban consumers during the 12-month period ending at that midpoint. (F) Treatment of certain hospitals (i) In the case of a hospital that did not have an approved medical residency training program or was not participating in the pro- gram under this subchapter for a cost re- porting period beginning during fiscal year Page 3841 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 1984, the Secretary shall, for the first such period for which it has such a residency training program and is participating under this subchapter, provide for such approved FTE resident amount as the Secretary de- termines to be appropriate, based on ap- proved FTE resident amounts for com- parable programs. (ii) In applying this subparagraph in the case of a hospital that trains residents and has not entered into a GME affiliation agreement (as defined by the Secretary for purposes of paragraph (4)(H)(ii)), on or after December 27, 2020, the Secretary shall not establish an FTE resident amount until such time as the Secretary determines that the hospital has trained at least 1.0 full-time- equivalent resident in an approved medical residency training program in a cost report- ing period. (iii) In applying this subparagraph for cost reporting periods beginning on or after De- cember 27, 2020, in the case of a hospital that, as of such date, has an approved FTE resident amount based on the training in an approved medical residency program or pro- grams of— (I) less than 1.0 full-time-equivalent resi- dent in any cost reporting period begin- ning before October 1, 1997, as determined by the Secretary; or (II) no more than 3.0 full-time-equivalent residents in any cost reporting period be- ginning on or after October 1, 1997, and be- fore December 27, 2020, as determined by the Secretary, in lieu of such FTE resident amount the Sec- retary shall, in accordance with the method- ology described in section 413.77(e) of title 42 of the Code of Federal Regulations (or any successor regulation), establish a new FTE resident amount if the hospital trains at least 1.0 full-time-equivalent resident (in the case of a hospital described in subclause (I)) or more than 3.0 full-time-equivalent resi- dents (in the case of a hospital described in subclause (II)) in a cost reporting period be- ginning on or after such date and before the date that is 5 years after such date. (iv) For purposes of carrying out this sub- paragraph for cost reporting periods begin- ning on or after December 27, 2020, a hospital shall report full-time-equivalent residents on its cost report for a cost reporting period if the hospital trains at least 1.0 full-time- equivalent residents 9 in an approved medical residency training program or programs in such period. (v) As appropriate, the Secretary may con- sider information from any cost reporting period necessary to establish a new FTE resident amount as described in clause (iii). (3) Hospital payment amount per resident (A) In general The payment amount, for a hospital cost reporting period beginning on or after July 1, 1985, is equal to the product of— (i) the aggregate approved amount (as defined in subparagraph (B)) for that pe- riod, and (ii) the hospital’s medicare patient load (as defined in subparagraph (C)) for that period. (B) Aggregate approved amount As used in subparagraph (A), the term ‘‘ag- gregate approved amount’’ means, for a hos- pital cost reporting period, the product of— (i) the hospital’s approved FTE resident amount (determined under paragraph (2)) for that period, and (ii) the weighted average number of full- time-equivalent residents (as determined under paragraph (4)) in the hospital’s ap- proved medical residency training pro- grams in that period. The Secretary shall reduce the aggregate ap- proved amount to the extent payment is made under subsection (k) for residents in- cluded in the hospital’s count of full-time equivalent residents. (C) Medicare patient load As used in subparagraph (A), the term ‘‘medicare patient load’’ means, with respect to a hospital’s cost reporting period, the fraction of the total number of inpatient- bed-days (as established by the Secretary) during the period which are attributable to patients with respect to whom payment may be made under part A. (D) Payment for managed care enrollees (i) In general For portions of cost reporting periods oc- curring on or after January 1, 1998, the Secretary shall provide for an additional payment amount under this subsection for services furnished to individuals who are enrolled under a risk-sharing contract with an eligible organization under section 1395mm of this title and who are entitled to part A or with a Medicare+Choice orga- nization under part C. The amount of such a payment shall equal, subject to clause (iii), the applicable percentage of the prod- uct of— (I) the aggregate approved amount (as defined in subparagraph (B)) for that pe- riod; and (II) the fraction of the total number of inpatient-bed days (as established by the Secretary) during the period which are attributable to such enrolled individuals. (ii) Applicable percentage For purposes of clause (i), the applicable percentage is— (I) 20 percent in 1998, (II) 40 percent in 1999, (III) 60 percent in 2000, (IV) 80 percent in 2001, and (V) 100 percent in 2002 and subsequent years. (iii) Proportional reduction for nursing and allied health education The Secretary shall estimate a propor- tional adjustment in payments to all hos- pitals determined under clauses (i) and (ii) for portions of cost reporting periods be- ginning in a year (beginning with 2000) Page 3842 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 10 So in original. The semicolon probably should not appear. such that the proportional adjustment re- duces payments in an amount for such year equal to the total additional payment amounts for nursing and allied health edu- cation determined under subsection (l) for portions of cost reporting periods occur- ring in that year. In applying the pre- ceding sentence for each of 2010 through 2019, the Secretary shall not take into ac- count any increase in the total amount of such additional payment amounts for such nursing and allied health education for portions of cost reporting periods occur- ring in the year pursuant to the applica- tion of paragraph (2)(B)(ii) of such sub- section. (iv) Special rule for hospitals under reim- bursement system The Secretary shall establish rules for the application of this subparagraph to a hospital reimbursed under a reimburse- ment system authorized under section 1395f(b)(3) of this title in the same manner as it would apply to the hospital if it were not reimbursed under such section. (4) Determination of full-time-equivalent resi- dents (A) Rules The Secretary shall establish rules con- sistent with this paragraph for the computa- tion of the number of full-time-equivalent residents in an approved medical residency training program. (B) Adjustment for part-year or part-time residents Such rules shall take into account individ- uals who serve as residents for only a por- tion of a period with a hospital or simulta- neously with more than one hospital. (C) Weighting factors for certain residents Subject to subparagraph (D), such rules shall provide, in calculating the number of full-time-equivalent residents in an ap- proved residency program— (i) before July 1, 1986, for each resident the weighting factor is 1.00, (ii) on or after July 1, 1986, for a resident who is in the resident’s initial residency period (as defined in paragraph (5)(F)), the weighting factor is 1.00, (iii) on or after July 1, 1986, and before July 1, 1987, for a resident who is not in the resident’s initial residency period (as de- fined in paragraph (5)(F)), the weighting factor is .75, and (iv) on or after July 1, 1987, for a resident who is not in the resident’s initial resi- dency period (as defined in paragraph (5)(F)), the weighting factor is .50. (D) Foreign medical graduates required to pass FMGEMS examination (i) In general Except as provided in clause (ii), such rules shall provide that, in the case of an individual who is a foreign medical grad- uate (as defined in paragraph (5)(D)), the individual shall not be counted as a resi- dent on or after July 1, 1986, unless— (I) the individual has passed the FMGEMS examination (as defined in paragraph (5)(E)), or (II) the individual has previously re- ceived certification from, or has pre- viously passed the examination of, the Educational Commission for Foreign Medical Graduates. (ii) Transition for current FMGS On or after July 1, 1986, but before July 1, 1987, in the case of a foreign medical graduate who— (I) has served as a resident before July 1, 1986, and is serving as a resident after that date, but (II) has not passed the FMGEMS exam- ination or a previous examination of the Educational Commission for Foreign Medical Graduates before July 1, 1986, the individual shall be counted as a resi- dent at a rate equal to one-half of the rate at which the individual would otherwise be counted. (E) Counting time spent in outpatient set- tings Subject to subparagraphs (J) and (K), such rules shall provide that only time spent in activities relating to patient care shall be counted and that— (i) effective for cost reporting periods be- ginning before July 1, 2010, all the time; 10 so spent by a resident under an approved medical residency training program shall be counted towards the determination of full-time equivalency, without regard to the setting in which the activities are per- formed, if the hospital incurs all, or sub- stantially all, of the costs for the training program in that setting; and (ii) effective for cost reporting periods beginning on or after July 1, 2010, all the time so spent by a resident shall be count- ed towards the determination of full-time equivalency, without regard to the setting in which the activities are performed, if a hospital incurs the costs of the stipends and fringe benefits of the resident during the time the resident spends in that set- ting. If more than one hospital incurs these costs, either directly or through a third party, such hospitals shall count a proportional share of the time, as deter- mined by written agreement between the hospitals, that a resident spends training in that setting. Any hospital claiming under this subpara- graph for time spent in a nonprovider set- ting shall maintain and make available to the Secretary records regarding the amount of such time and such amount in comparison with amounts of such time in such base year as the Secretary shall specify. (F) Limitation on number of residents in allopathic and osteopathic medicine (i) In general Such rules shall provide that for pur- poses of a cost reporting period beginning Page 3843 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww on or after October 1, 1997, subject to para- graphs (7), (8), (9), and (10), the total num- ber of full-time equivalent residents before application of weighting factors (as deter- mined under this paragraph) with respect to a hospital’s approved medical residency training program in the fields of allopathic medicine and osteopathic medicine may not exceed the number (or, 130 percent of such number in the case of a hospital lo- cated in a rural area) of such full-time equivalent residents for the hospital’s most recent cost reporting period ending on or before December 31, 1996. (ii) Counting primary care residents on certain approved leaves of absence in base year FTE count (I) In general In determining the number of such full-time equivalent residents for a hos- pital’s most recent cost reporting period ending on or before December 31, 1996, for purposes of clause (i), the Secretary shall count an individual to the extent that the individual would have been counted as a primary care resident for such period but for the fact that the in- dividual, as determined by the Sec- retary, was on maternity or disability leave or a similar approved leave of ab- sence. (II) Limitation to 3 FTE residents for any hospital The total number of individuals count- ed under subclause (I) for a hospital may not exceed 3 full-time equivalent resi- dents. (G) Counting interns and residents for FY 1998 and subsequent years (i) In general For cost reporting periods beginning dur- ing fiscal years beginning on or after Octo- ber 1, 1997, subject to the limit described in subparagraph (F), the total number of full- time equivalent residents for determining a hospital’s graduate medical education payment shall equal the average of the ac- tual full-time equivalent resident counts for the cost reporting period and the pre- ceding two cost reporting periods. (ii) Adjustment for short periods If any cost reporting period beginning on or after October 1, 1997, is not equal to twelve months, the Secretary shall make appropriate modifications to ensure that the average full-time equivalent resident counts pursuant to clause (i) are based on the equivalent of full twelve-month cost reporting periods. (iii) Transition rule for 1998 In the case of a hospital’s first cost re- porting period beginning on or after Octo- ber 1, 1997, clause (i) shall be applied by using the average for such period and the preceding cost reporting period. (H) Special rules for application of subpara- graphs (F) and (G) (i) New facilities (I) The Secretary shall, consistent with the principles of subparagraphs (F) and (G) and subject to paragraphs (7), (8), (9), and (10), prescribe rules for the application of such subparagraphs in the case of medical residency training programs established on or after January 1, 1995. In promul- gating such rules for purposes of subpara- graph (F), the Secretary shall give special consideration to facilities that meet the needs of underserved rural areas. (II) In applying this clause in the case of a hospital that, on or after December 27, 2020, begins training residents in a new ap- proved medical residency training program or programs (as defined by the Secretary), the Secretary shall not determine a limi- tation applicable to the hospital under subparagraph (F) until such time as the Secretary determines that the hospital has trained at least 1.0 full-time-equivalent resident in such new approved medical residency training program or programs in a cost reporting period. (III) In applying this clause in the case of a hospital that, as of December 27, 2020, has a limitation under subparagraph (F), based on a cost reporting period beginning before October 1, 1997, of less than 1.0 full- time-equivalent resident, the Secretary shall adjust the limitation in the manner applicable to a new approved medical resi- dency training program if the Secretary determines the hospital begins training at least 1.0 full-time-equivalent residents 9 in a program year beginning on or after such date and before the date that is 5 years after such date. (IV) In applying this clause in the case of a hospital that, as of December 27, 2020, has a limitation under subparagraph (F), based on a cost reporting period beginning on or after October 1, 1997, and before such date, of no more than 3.0 full-time-equiva- lent residents, the Secretary shall adjust the limitation in the manner applicable to a new approved medical residency training program if the Secretary determines the hospital begins training more than 3.0 full- time-equivalent residents in a program year beginning on or after such date and before the date that is 5 years after such date. (V) An adjustment to the limitation ap- plicable to a hospital made pursuant to subclause (III) or (IV) shall be made in a manner consistent with the methodology, as appropriate, in section 413.79(e) of title 42, Code of Federal Regulations (or any successor regulation). As appropriate, the Secretary may consider information from any cost reporting periods necessary to make such an adjustment to the limita- tion. (ii) Aggregation The Secretary may prescribe rules which allow institutions which are members of Page 3844 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 11 So in original. Probably should be followed by a comma. the same affiliated group (as defined by the Secretary) to elect to apply the limita- tion of subparagraph (F) on an aggregate basis. (iii) Data collection The Secretary may require any entity that operates a medical residency training program and to which subparagraphs (F) and (G) apply to submit to the Secretary such additional information as the Sec- retary considers necessary to carry out such subparagraphs. (iv) Training programs in rural areas (I) Cost reporting periods beginning be- fore October 1, 2022 For cost reporting periods beginning before October 1, 2022, in the case of a hospital that is not located in a rural area but establishes separately accred- ited approved medical residency training programs (or rural tracks) in a rural area or has an accredited training pro- gram with an integrated rural track, the Secretary shall adjust the limitation under subparagraph (F) in an appropriate manner insofar as it applies to such pro- grams in such rural areas in order to en- courage the training of physicians in rural areas. (II) Cost reporting periods beginning on or after October 1, 2022 For cost reporting periods beginning on or after October 1, 2022, in the case of a hospital not located in a rural area that established or establishes a medical residency training program (or rural tracks) in a rural area or establishes an accredited program where greater than 50 percent of the program occurs in a rural area, the Secretary shall 11 con- sistent with the principles of subpara- graphs (F) and (G) and subject to para- graphs (7) and (8), prescribe rules for the application of such subparagraphs with respect to such a program and, in accord- ance with such rules, adjust in an appro- priate manner the limitation under sub- paragraph (F) for such hospital and each such hospital located in a rural area that participates in such a training. (v) Special provider agreement If an entity enters into a provider agree- ment pursuant to section 1395cc(a) of this title to provide hospital services on the same physical site previously used by Medicare Provider No. 05–0578— (I) the limitation on the number of total full time equivalent residents under subparagraph (F) and clauses (v) and (vi)(I) of subsection (d)(5)(B) applica- ble to such provider shall be equal to the limitation applicable under such provi- sions to Provider No. 05–0578 for its cost reporting period ending on June 30, 2006; and (II) the provisions of subparagraph (G) and subsection (d)(5)(B)(vi)(II) shall not be applicable to such provider for the first three cost reporting years in which such provider trains residents under any approved medical residency training pro- gram. (vi) Redistribution of residency slots after a hospital closes (I) In general Subject to the succeeding provisions of this clause, the Secretary shall, by regu- lation, establish a process under which, in the case where a hospital (other than a hospital described in clause (v)) with an approved medical residency program closes on or after a date that is 2 years before March 23, 2010, the Secretary shall increase the otherwise applicable resi- dent limit under this paragraph for other hospitals in accordance with this clause. (II) Priority for hospitals in certain areas Subject to the succeeding provisions of this clause, in determining for which hospitals the increase in the otherwise applicable resident limit is provided under such process, the Secretary shall distribute the increase to hospitals in the following priority order (with pref- erence given within each category to hospitals that are members of the same affiliated group (as defined by the Sec- retary under clause (ii)) as the closed hospital): (aa) First, to hospitals located in the same core-based statistical area as, or a core-based statistical area contig- uous to, the hospital that closed. (bb) Second, to hospitals located in the same State as the hospital that closed. (cc) Third, to hospitals located in the same region of the country as the hos- pital that closed. (dd) Fourth, only if the Secretary is not able to distribute the increase to hospitals described in item (cc), to qualifying hospitals in accordance with the provisions of paragraph (8). (III) Requirement hospital likely to fill position within certain time period The Secretary may only increase the otherwise applicable resident limit of a hospital under such process if the Sec- retary determines the hospital has dem- onstrated a likelihood of filling the posi- tions made available under this clause within 3 years. (IV) Limitation The aggregate number of increases in the otherwise applicable resident limits for hospitals under this clause shall be equal to the number of resident positions in the approved medical residency pro- grams that closed on or after the date described in subclause (I). (V) Administration Chapter 35 of title 44 shall not apply to the implementation of this clause. Page 3845 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 12 So in original. No subpar. (I) has been enacted. (J) 12 Treatment of certain nonprovider and didactic activities Such rules shall provide that all time spent by an intern or resident in an approved medical residency training program in a nonprovider setting that is primarily en- gaged in furnishing patient care (as defined in paragraph (5)(K)) in non-patient care ac- tivities, such as didactic conferences and seminars, but not including research not as- sociated with the treatment or diagnosis of a particular patient, as such time and activi- ties are defined by the Secretary, shall be counted toward the determination of full- time equivalency. (K) Treatment of certain other activities In determining the hospital’s number of full-time equivalent residents for purposes of this subsection, all the time that is spent by an intern or resident in an approved medical residency training program on vacation, sick leave, or other approved leave, as such time is defined by the Secretary, and that does not prolong the total time the resident is participating in the approved program be- yond the normal duration of the program shall be counted toward the determination of full-time equivalency. (5) Definitions and special rules As used in this subsection: (A) Approved medical residency training pro- gram The term ‘‘approved medical residency training program’’ means a residency or other postgraduate medical training pro- gram participation in which may be counted toward certification in a specialty or sub- specialty and includes formal postgraduate training programs in geriatric medicine ap- proved by the Secretary. (B) Consumer price index The term ‘‘consumer price index’’ refers to the Consumer Price Index for All Urban Con- sumers (United States city average), as pub- lished by the Secretary of Commerce. (C) Direct graduate medical education costs The term ‘‘direct graduate medical edu- cation costs’’ means direct costs of approved educational activities for approved medical residency training programs. (D) Foreign medical graduate The term ‘‘foreign medical graduate’’ means a resident who is not a graduate of— (i) a school of medicine accredited by the Liaison Committee on Medical Education of the American Medical Association and the Association of American Medical Col- leges (or approved by such Committee as meeting the standards necessary for such accreditation), (ii) a school of osteopathy accredited by the American Osteopathic Association, or approved by such Association as meeting the standards necessary for such accredita- tion, or (iii) a school of dentistry or podiatry which is accredited (or meets the stand- ards for accreditation) by an organization recognized by the Secretary for such pur- pose. (E) FMGEMS examination The term ‘‘FMGEMS examination’’ means parts I and II of the Foreign Medical Grad- uate Examination in the Medical Sciences or any successor examination recognized by the Secretary for this purpose. (F) Initial residency period The term ‘‘initial residency period’’ means the period of board eligibility, except that— (i) except as provided in clause (ii), in no case shall the initial period of residency exceed an aggregate period of formal train- ing of more than five years for any indi- vidual, and (ii) a period, of not more than two years, during which an individual is in a geriatric residency or fellowship program or a pre- ventive medicine residency or fellowship program which meets such criteria as the Secretary may establish, shall be treated as part of the initial residency period, but shall not be counted against any limita- tion on the initial residency period. Subject to subparagraph (G)(v), the initial residency period shall be determined, with respect to a resident, as of the time the resi- dent enters the residency training program. (G) Period of board eligibility (i) General rule Subject to clauses (ii), (iii), (iv), and (v), the term ‘‘period of board eligibility’’ means, for a resident, the minimum num- ber of years of formal training necessary to satisfy the requirements for initial board eligibility in the particular spe- cialty for which the resident is training. (ii) Application of 1985–1986 directory Except as provided in clause (iii), the pe- riod of board eligibility shall be such pe- riod specified in the 1985–1986 Directory of Residency Training Programs published by the Accreditation Council on Graduate Medical Education. (iii) Changes in period of board eligibility On or after July 1, 1989, if the Accredita- tion Council on Graduate Medical Edu- cation, in its Directory of Residency Training Programs— (I) increases the minimum number of years of formal training necessary to satisfy the requirements for a specialty, above the period specified in its 1985–1986 Directory, the Secretary may increase the period of board eligibility for that specialty, but not to exceed the period of board eligibility specified in that later Directory, or (II) decreases the minimum number of years of formal training necessary to satisfy the requirements for a specialty, below the period specified in its 1985–1986 Directory, the Secretary may decrease Page 3846 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 13 So in original. The comma probably should be a semicolon. the period of board eligibility for that specialty, but not below the period of board eligibility specified in that later Directory. (iv) Special rule for certain primary care combined residency programs (I) In the case of a resident enrolled in a combined medical residency training pro- gram in which all of the individual pro- grams (that are combined) are for training a primary care resident (as defined in sub- paragraph (H)), the period of board eligi- bility shall be the minimum number of years of formal training required to satisfy the requirements for initial board eligi- bility in the longest of the individual pro- grams plus one additional year. (II) A resident enrolled in a combined medical residency training program that includes an obstetrics and gynecology pro- gram shall qualify for the period of board eligibility under subclause (I) if the other programs such resident combines with such obstetrics and gynecology program are for training a primary care resident. (v) Child neurology training programs In the case of a resident enrolled in a child neurology residency training pro- gram, the period of board eligibility and the initial residency period shall be the pe- riod of board eligibility for pediatrics plus 2 years. (H) Primary care resident The term ‘‘primary care resident’’ means a resident enrolled in an approved medical residency training program in family medi- cine, general internal medicine, general pe- diatrics, preventive medicine, geriatric med- icine, or osteopathic general practice. (I) Resident The term ‘‘resident’’ includes an intern or other participant in an approved medical residency training program. (J) Adjustments for certain family practice residency programs (i) In general In the case of an approved medical resi- dency training program (meeting the re- quirements of clause (ii)) of a hospital which received funds from the United States, a State, or a political subdivision of a State or an instrumentality of such a State or political subdivision (other than payments under this subchapter or a State plan under subchapter XIX) for the pro- gram during the cost reporting period that began during fiscal year 1984, the Sec- retary shall— (I) provide for an average amount under paragraph (2)(A) that takes into account the Secretary’s estimate of the amount that would have been recognized as reasonable under this subchapter if the hospital had not received such funds, and (II) reduce the payment amount other- wise provided under this subsection in an amount equal to the proportion of such program funds received during the cost reporting period involved that is allo- cable to this subchapter. (ii) Additional requirements A hospital’s approved medical residency program meets the requirements of this clause if— (I) the program is limited to training for family and community medicine; (II) the program is the only approved medical residency program of the hos- pital; and (III) the average amount determined under paragraph (2)(A) for the hospital (as determined without regard to the in- crease in such amount described in clause (i)(I)) does not exceed $10,000. (K) Nonprovider setting that is primarily en- gaged in furnishing patient care The term ‘‘nonprovider setting that is pri- marily engaged in furnishing patient care’’ means a nonprovider setting in which the primary activity is the care and treatment of patients, as defined by the Secretary. (6) Incentive payment under plans for vol- untary reduction in number of residents (A) In general In the case of a voluntary residency reduc- tion plan for which an application is ap- proved under subparagraph (B), subject to subparagraph (F), each hospital which is part of the qualifying entity submitting the plan shall be paid an applicable hold harm- less percentage (as specified in subparagraph (E)) of the sum of— (i) the amount (if any) by which— (I) the amount of payment which would have been made under this sub- section if there had been a 5-percent re- duction in the number of full-time equiv- alent residents in the approved medical education training programs of the hos- pital as of June 30, 1997, exceeds (II) the amount of payment which is made under this subsection, taking into account the reduction in such number ef- fected under the reduction plan; and (ii) the amount of the reduction in pay- ment under subsection (d)(5)(B) for the hospital that is attributable to the reduc- tion in number of residents effected under the plan below 95 percent of the number of full-time equivalent residents in such pro- grams of the hospital as of June 30, 1997. The determination of the amounts under clauses (i) and (ii) for any year shall be made on the basis of the provisions of this sub- chapter in effect on the application deadline date for the first calendar year to which the reduction plan applies. (B) Approval of plan applications The Secretary may not approve the appli- cation of an qualifying entity unless— (i) the application is submitted in a form and manner specified by the Secretary and by not later than November 1, 1999,13 Page 3847 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (ii) the application provides for the oper- ation of a plan for the reduction in the number of full-time equivalent residents in the approved medical residency training programs of the entity consistent with the requirements of subparagraph (D); (iii) the entity elects in the application the period of residency training years (not greater than 5) over which the reduction will occur; (iv) the entity will not reduce the pro- portion of its residents in primary care (to the total number of residents) below such proportion as in effect as of the applicable time described in subparagraph (D)(v); and (v) the Secretary determines that the ap- plication and the entity and such plan meet such other requirements as the Sec- retary specifies in regulations. (C) Qualifying entity For purposes of this paragraph, any of the following may be a qualifying entity: (i) Individual hospitals operating one or more approved medical residency training programs. (ii) Two or more hospitals that operate such programs and apply for treatment under this paragraph as a single qualifying entity. (iii) A qualifying consortium (as de- scribed in section 4628 of the Balanced Budget Act of 1997). (D) Residency reduction requirements (i) Individual hospital applicants In the case of a qualifying entity de- scribed in subparagraph (C)(i), the number of full-time equivalent residents in all the approved medical residency training pro- grams operated by or through the entity shall be reduced as follows: (I) If the base number of residents ex- ceeds 750 residents, by a number equal to at least 20 percent of such base number. (II) Subject to subclause (IV), if the base number of residents exceeds 600 but is less than 750 residents, by 150 resi- dents. (III) Subject to subclause (IV), if the base number of residents does not exceed 600 residents, by a number equal to at least 25 percent of such base number. (IV) In the case of a qualifying entity which is described in clause (v) and which elects treatment under this sub- clause, by a number equal to at least 20 percent of the base number. (ii) Joint applicants In the case of a qualifying entity de- scribed in subparagraph (C)(ii), the number of full-time equivalent residents in the ag- gregate for all the approved medical resi- dency training programs operated by or through the entity shall be reduced as fol- lows: (I) Subject to subclause (II), by a num- ber equal to at least 25 percent of the base number. (II) In the case of such a qualifying en- tity which is described in clause (v) and which elects treatment under this sub- clause, by a number equal to at least 20 percent of the base number. (iii) Consortia In the case of a qualifying entity de- scribed in subparagraph (C)(iii), the num- ber of full-time equivalent residents in the aggregate for all the approved medical residency training programs operated by or through the entity shall be reduced by a number equal to at least 20 percent of the base number. (iv) Manner of reduction The reductions specified under the pre- ceding provisions of this subparagraph for a qualifying entity shall be below the base number of residents for that entity and shall be fully effective not later than the 5th residency training year in which the application under subparagraph (B) is ef- fective. (v) Entities providing assurance of in- crease in primary care residents An entity is described in this clause if— (I) the base number of residents for the entity is less than 750 or the entity is de- scribed in subparagraph (C)(ii); and (II) the entity represents in its applica- tion under subparagraph (B) that it will increase the number of full-time equiva- lent residents in primary care by at least 20 percent (from such number included in the base number of residents) by not later than the 5th residency training year in which the application under sub- paragraph (B) is effective. If a qualifying entity fails to comply with the representation described in subclause (II) by the end of such 5th residency train- ing year, the entity shall be subject to re- payment of all amounts paid under this paragraph, in accordance with procedures established to carry out subparagraph (F). (vi) ‘‘Base number of residents’’ defined For purposes of this paragraph, the term ‘‘base number of residents’’ means, with respect to a qualifying entity (or its par- ticipating hospitals) operating approved medical residency training programs, the number of full-time equivalent residents in such programs (before application of weighting factors) of the entity as of the most recent residency training year end- ing before June 30, 1997, or, if less, for any subsequent residency training year that ends before the date the entity makes ap- plication under this paragraph. (E) Applicable hold harmless percentage For purposes of subparagraph (A), the ‘‘ap- plicable hold harmless percentage’’ for the— (i) first and second residency training years in which the reduction plan is in ef- fect, 100 percent, (ii) third such year, 75 percent, (iii) fourth such year, 50 percent, and (iv) fifth such year, 25 percent. Page 3848 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (F) Penalty for noncompliance (i) In general No payment may be made under this paragraph to a hospital for a residency training year if the hospital has failed to reduce the number of full-time equivalent residents (in the manner required under subparagraph (D)) to the number agreed to by the Secretary and the qualifying entity in approving the application under this paragraph with respect to such year. (ii) Increase in number of residents in sub- sequent years If payments are made under this para- graph to a hospital, and if the hospital in- creases the number of full-time equivalent residents above the number of such resi- dents permitted under the reduction plan as of the completion of the plan, then, as specified by the Secretary, the entity is liable for repayment to the Secretary of the total amounts paid under this para- graph to the entity. (G) Treatment of rotating residents In applying this paragraph, the Secretary shall establish rules regarding the counting of residents who are assigned to institutions the medical residency training programs in which are not covered under approved appli- cations under this paragraph. (7) Redistribution of unused resident positions (A) Reduction in limit based on unused posi- tions (i) Programs subject to reduction (I) In general Except as provided in subclause (II), if a hospital’s reference resident level (specified in clause (ii)) is less than the otherwise applicable resident limit (as defined in subparagraph (C)(ii)), effective for portions of cost reporting periods oc- curring on or after July 1, 2005, the oth- erwise applicable resident limit shall be reduced by 75 percent of the difference between such otherwise applicable resi- dent limit and such reference resident level. (II) Exception for small rural hospitals This subparagraph shall not apply to a hospital located in a rural area (as de- fined in subsection (d)(2)(D)(ii)) with fewer than 250 acute care inpatient beds. (ii) Reference resident level (I) In general Except as otherwise provided in sub- clauses (II) and (III), the reference resi- dent level specified in this clause for a hospital is the resident level for the most recent cost reporting period of the hospital ending on or before September 30, 2002, for which a cost report has been settled (or, if not, submitted (subject to audit)), as determined by the Secretary. (II) Use of most recent accounting period to recognize expansion of existing programs If a hospital submits a timely request to increase its resident level due to an expansion of an existing residency train- ing program that is not reflected on the most recent settled cost report, after audit and subject to the discretion of the Secretary, the reference resident level for such hospital is the resident level for the cost reporting period that includes July 1, 2003, as determined by the Sec- retary. (III) Expansions under newly approved programs Upon the timely request of a hospital, the Secretary shall adjust the reference resident level specified under subclause (I) or (II) to include the number of med- ical residents that were approved in an application for a medical residency training program that was approved by an appropriate accrediting organization (as determined by the Secretary) before January 1, 2002, but which was not in op- eration during the cost reporting period used under subclause (I) or (II), as the case may be, as determined by the Sec- retary. (iii) Affiliation The provisions of clause (i) shall be ap- plied to hospitals which are members of the same affiliated group (as defined by the Secretary under paragraph (4)(H)(ii)) as of July 1, 2003. (B) Redistribution (i) In general The Secretary is authorized to increase the otherwise applicable resident limit for each qualifying hospital that submits a timely application under this subpara- graph by such number as the Secretary may approve for portions of cost reporting periods occurring on or after July 1, 2005. The aggregate number of increases in the otherwise applicable resident limits under this subparagraph may not exceed the Sec- retary’s estimate of the aggregate reduc- tion in such limits attributable to sub- paragraph (A). (ii) Considerations in redistribution In determining for which hospitals the increase in the otherwise applicable resi- dent limit is provided under clause (i), the Secretary shall take into account the dem- onstrated likelihood of the hospital filling the positions within the first 3 cost report- ing periods beginning on or after July 1, 2005, made available under this subpara- graph, as determined by the Secretary. (iii) Priority for rural and small urban areas In determining for which hospitals and residency training programs an increase in the otherwise applicable resident limit is provided under clause (i), the Secretary shall distribute the increase to programs of hospitals located in the following pri- ority order: (I) First, to hospitals located in rural areas (as defined in subsection (d)(2)(D)(ii)). Page 3849 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 14 So in original. Probably should be followed by ‘‘paragraph (9),’’. See 2020 Amendment notes below. (II) Second, to hospitals located in urban areas that are not large urban areas (as defined for purposes of sub- section (d)). (III) Third, to other hospitals in a State if the residency training program involved is in a specialty for which there are not other residency training pro- grams in the State. Increases of residency limits within the same priority category under this clause shall be determined by the Secretary. (iv) Limitation In no case shall more than 25 full-time equivalent additional residency positions be made available under this subparagraph with respect to any hospital. (v) Application of locality adjusted national average per resident amount With respect to additional residency po- sitions in a hospital attributable to the in- crease provided under this subparagraph, notwithstanding any other provision of this subsection, the approved FTE resident amount is deemed to be equal to the local- ity adjusted national average per resident amount computed under paragraph (4)(E) for that hospital. (vi) Construction Nothing in this subparagraph shall be construed as permitting the redistribution of reductions in residency positions attrib- utable to voluntary reduction programs under paragraph (6), under a demonstra- tion project approved as of October 31, 2003, under the authority of section 402 of Public Law 90–248, or as affecting the abil- ity of a hospital to establish new medical residency training programs under para- graph (4)(H). (C) Resident level and limit defined In this paragraph: (i) Resident level The term ‘‘resident level’’ means, with respect to a hospital, the total number of full-time equivalent residents, before the application of weighting factors (as deter- mined under paragraph (4)), in the fields of allopathic and osteopathic medicine for the hospital. (ii) Otherwise applicable resident limit The term ‘‘otherwise applicable resident limit’’ means, with respect to a hospital, the limit otherwise applicable under sub- paragraphs (F)(i) and (H) of paragraph (4) on the resident level for the hospital deter- mined without regard to this paragraph. (D) Adjustment based on settled cost report In the case of a hospital with a dual ac- credited osteopathic and allopathic family practice program for which— (i) the otherwise applicable resident limit was reduced under subparagraph (A)(i)(I); and (ii) such reduction was based on a ref- erence resident level that was determined using a cost report and where a revised or corrected notice of program reimburse- ment was issued for such cost report be- tween September 1, 2006 and September 15, 2006, whether as a result of an appeal or otherwise, and the reference resident level under such settled cost report is higher than the level used for the reduction under subparagraph (A)(i)(I); the Secretary shall apply subparagraph (A)(i)(I) using the higher resident reference level and make any necessary adjustments to such reduction. Any such necessary ad- justments shall be effective for portions of cost reporting periods occurring on or after July 1, 2005. (E) Judicial review There shall be no administrative or judi- cial review under section 1395ff of this title, 1395oo of this title, or otherwise, with re- spect to determinations made under this paragraph, paragraph (8),14 paragraph (10), clause (i), (ii), (iii), or (v) of paragraph (2)(F), or clause (i) or (vi) of paragraph (4)(H). (8) Distribution of additional residency posi- tions (A) Reductions in limit based on unused posi- tions (i) In general Except as provided in clause (ii), if a hos- pital’s reference resident level (as defined in subparagraph (H)(i)) is less than the otherwise applicable resident limit (as de- fined in subparagraph (H)(iii)), effective for portions of cost reporting periods oc- curring on or after July 1, 2011, the other- wise applicable resident limit shall be re- duced by 65 percent of the difference be- tween such otherwise applicable resident limit and such reference resident level. (ii) Exceptions This subparagraph shall not apply to— (I) a hospital located in a rural area (as defined in subsection (d)(2)(D)(ii)) with fewer than 250 acute care inpatient beds; (II) a hospital that was part of a quali- fying entity which had a voluntary resi- dency reduction plan approved under paragraph (6)(B) or under the authority of section 402 of Public Law 90–248, if the hospital demonstrates to the Secretary that it has a specified plan in place for filling the unused positions by not later than 2 years after March 23, 2010; or (III) a hospital described in paragraph (4)(H)(v). (B) Distribution (i) In general The Secretary shall increase the other- wise applicable resident limit for each qualifying hospital that submits an appli- cation under this subparagraph by such number as the Secretary may approve for portions of cost reporting periods occur- Page 3850 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ring on or after July 1, 2011. The aggregate number of increases in the otherwise appli- cable resident limit under this subpara- graph shall be equal to the aggregate re- duction in such limits attributable to sub- paragraph (A) (as estimated by the Sec- retary). (ii) Requirements Subject to clause (iii), a hospital that re- ceives an increase in the otherwise appli- cable resident limit under this subpara- graph shall ensure, during the 5-year pe- riod beginning on the date of such in- crease, that— (I) the number of full-time equivalent primary care residents, as defined in paragraph (5)(H) (as determined by the Secretary), excluding any additional po- sitions under subclause (II), is not less than the average number of full-time equivalent primary care residents (as so determined) during the 3 most recent cost reporting periods ending prior to March 23, 2010; and (II) not less than 75 percent of the posi- tions attributable to such increase are in a primary care or general surgery resi- dency (as determined by the Secretary). The Secretary may determine whether a hospital has met the requirements under this clause during such 5-year period in such manner and at such time as the Sec- retary determines appropriate, including at the end of such 5-year period. (iii) Redistribution of positions if hospital no longer meets certain requirements In the case where the Secretary deter- mines that a hospital described in clause (ii) does not meet either of the require- ments under subclause (I) or (II) of such clause, the Secretary shall— (I) reduce the otherwise applicable resident limit of the hospital by the amount by which such limit was in- creased under this paragraph; and (II) provide for the distribution of posi- tions attributable to such reduction in accordance with the requirements of this paragraph. (C) Considerations in redistribution In determining for which hospitals the in- crease in the otherwise applicable resident limit is provided under subparagraph (B), the Secretary shall take into account— (i) the demonstration likelihood of the hospital filling the positions made avail- able under this paragraph within the first 3 cost reporting periods beginning on or after July 1, 2011, as determined by the Secretary; and (ii) whether the hospital has an accred- ited rural training track (as described in paragraph (4)(H)(iv)). (D) Priority for certain areas In determining for which hospitals the in- crease in the otherwise applicable resident limit is provided under subparagraph (B), subject to subparagraph (E), the Secretary shall distribute the increase to hospitals based on the following factors: (i) Whether the hospital is located in a State with a resident-to-population ratio in the lowest quartile (as determined by the Secretary). (ii) Whether the hospital is located in a State, a territory of the United States, or the District of Columbia that is among the top 10 States, territories, or Districts in terms of the ratio of— (I) the total population of the State, territory, or District living in an area designated (under such section 332(a)(1)(A) 4) as a health professional shortage area (as of March 23, 2010); to (II) the total population of the State, territory, or District (as determined by the Secretary based on the most recent available population data published by the Bureau of the Census). (iii) Whether the hospital is located in a rural area (as defined in subsection (d)(2)(D)(ii)). (E) Reservation of positions for certain hos- pitals (i) In general Subject to clause (ii), the Secretary shall reserve the positions available for dis- tribution under this paragraph as follows: (I) 70 percent of such positions for dis- tribution to hospitals described in clause (i) of subparagraph (D). (II) 30 percent of such positions for dis- tribution to hospitals described in clause (ii) and (iii) of such subparagraph. (ii) Exception if positions not redistributed by July 1, 2011 In the case where the Secretary does not distribute positions to hospitals in accord- ance with clause (i) by July 1, 2011, the Secretary shall distribute such positions to other hospitals in accordance with the considerations described in subparagraph (C) and the priority described in subpara- graph (D). (F) Limitation A hospital may not receive more than 75 full-time equivalent additional residency po- sitions under this paragraph. (G) Application of per resident amounts for primary care and nonprimary care With respect to additional residency posi- tions in a hospital attributable to the in- crease provided under this paragraph, the approved FTE per resident amounts are deemed to be equal to the hospital per resi- dent amounts for primary care and nonpri- mary care computed under paragraph (2)(D) for that hospital. (H) Definitions In this paragraph: (i) Reference resident level The term ‘‘reference resident level’’ means, with respect to a hospital, the highest resident level for any of the 3 most Page 3851 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww recent cost reporting periods (ending be- fore March 23, 2010) of the hospital for which a cost report has been settled (or, if not, submitted (subject to audit)), as de- termined by the Secretary. (ii) Resident level The term ‘‘resident level’’ has the mean- ing given such term in paragraph (7)(C)(i). (iii) Otherwise applicable resident limit The term ‘‘otherwise applicable resident limit’’ means, with respect to a hospital, the limit otherwise applicable under sub- paragraphs (F)(i) and (H) of paragraph (4) on the resident level for the hospital deter- mined without regard to this paragraph but taking into account paragraph (7)(A). (I) Affiliation The provisions of this paragraph shall be applied to hospitals which are members of the same affiliated group (as defined by the Secretary under paragraph (4)(H)(ii)) and the reference resident level for each such hos- pital shall be the reference resident level with respect to the cost reporting period that results in the smallest difference be- tween the reference resident level and the otherwise applicable resident limit. (9) Distribution of additional residency posi- tions (A) Additional residency positions (i) In general For fiscal year 2023, and for each suc- ceeding fiscal year until the aggregate number of full-time equivalent residency positions distributed under this paragraph is equal to the aggregate number of such positions made available (as specified in clause (ii)(I)), the Secretary shall, subject to the succeeding provisions of this para- graph, increase the otherwise applicable resident limit for each qualifying hospital (as defined in subparagraph (F)) that sub- mits a timely application under this sub- paragraph by such number as the Sec- retary may approve effective beginning July 1 of the fiscal year of the increase. (ii) Number available for distribution (I) Total number available The aggregate number of such posi- tions made available under this para- graph shall be equal to 1,000. (II) Annual limit The aggregate number of such posi- tions so made available shall not exceed 200 for a fiscal year. (iii) Process for distributing positions (I) Rounds of applications The Secretary shall initiate a separate round of applications for an increase under clause (i) for each fiscal year for which such an increase is to be provided. (II) Timing The Secretary shall notify hospitals of the number of positions distributed to the hospital under this paragraph as a result of an increase in the otherwise ap- plicable resident limit by January 31 of the fiscal year of the increase. Such in- crease shall be effective beginning July 1 of such fiscal year. (B) Distribution For purposes of providing an increase in the otherwise applicable resident limit under subparagraph (A), the following shall apply: (i) Considerations in distribution In determining for which qualifying hos- pitals such an increase is provided under subparagraph (A), the Secretary shall take into account the demonstrated likelihood of the hospital filling the positions made available under this paragraph within the first 5 training years beginning after the date the increase would be effective, as de- termined by the Secretary. (ii) Minimum distribution for certain cat- egories of hospitals With respect to the aggregate number of such positions available for distribution under this paragraph, the Secretary shall distribute not less than 10 percent of such aggregate number to each of the following categories of hospitals: (I) Hospitals that are located in a rural area (as defined in subsection (d)(2)(D)) or are treated as being located in a rural area pursuant to subsection (d)(8)(E). (II) Hospitals in which the reference resident level of the hospital (as speci- fied in subparagraph (F)(iii)) is greater than the otherwise applicable resident limit. (III) Hospitals in States with— (aa) new medical schools that re- ceived ‘‘Candidate School’’ status from the Liaison Committee on Medical Education or that received ‘‘Pre-Ac- creditation’’ status from the American Osteopathic Association Commission on Osteopathic College Accreditation on or after January 1, 2000, and that have achieved or continue to progress toward ‘‘Full Accreditation’’ status (as such term is defined by the Liaison Committee on Medical Education) or toward ‘‘Accreditation’’ status (as such term is defined by the American Osteo- pathic Association Commission on Os- teopathic College Accreditation); or (bb) additional locations and branch campuses established on or after Janu- ary 1, 2000, by medical schools with ‘‘Full Accreditation’’ status (as such term is defined by the Liaison Com- mittee on Medical Education) or ‘‘Ac- creditation’’ status (as such term is de- fined by the American Osteopathic As- sociation Commission on Osteopathic College Accreditation). (IV) Hospitals that serve areas des- ignated as health professional shortage areas under section 254e(a)(1)(A) of this title, as determined by the Secretary. Page 3852 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (C) Limitations (i) In general A hospital may not receive more than 25 additional full-time equivalent residency positions under this paragraph. (ii) Prohibition on distribution to hospitals without an increase agreement No increase in the otherwise applicable resident limit of a hospital may be made under this paragraph unless such hospital agrees to increase the total number of full- time equivalent residency positions under the approved medical residency training program of such hospital by the number of such positions made available by such in- crease under this paragraph. (D) Application of per resident amounts for primary care and nonprimary care With respect to additional residency posi- tions in a hospital attributable to the in- crease provided under this paragraph, the approved FTE per resident amounts are deemed to be equal to the hospital per resi- dent amounts for primary care and nonpri- mary care computed under paragraph (2)(D) for that hospital. (E) Permitting facilities to apply aggregation rules The Secretary shall permit hospitals re- ceiving additional residency positions at- tributable to the increase provided under this paragraph to, beginning in the fifth year after the effective date of such increase, apply such positions to the limitation amount under paragraph (4)(F) that may be aggregated pursuant to paragraph (4)(H) among members of the same affiliated group. (F) Definitions In this paragraph: (i) Otherwise applicable resident limit The term ‘‘otherwise applicable resident limit’’ means, with respect to a hospital, the limit otherwise applicable under sub- paragraphs (F)(i) and (H) of paragraph (4) on the resident level for the hospital deter- mined without regard to this paragraph but taking into account paragraphs (7)(A), (7)(B), (8)(A), and (8)(B). (ii) Qualifying hospital The term ‘‘qualifying hospital’’ means a hospital described in any of subclauses (I) through (IV) of subparagraph (B)(ii). (iii) Reference resident level The term ‘‘reference resident level’’ means, with respect to a hospital, the resi- dent level for the most recent cost report- ing period of the hospital ending on or be- fore December 27, 2020, for which a cost re- port has been settled (or, if not, submitted (subject to audit)), as determined by the Secretary. (iv) Resident level The term ‘‘resident level’’ has the mean- ing given such term in paragraph (7)(C)(i). (10) Distribution of additional residency posi- tions in psychiatry and psychiatry sub- specialties (A) Additional residency positions (i) In general For fiscal year 2026, the Secretary shall, subject to the succeeding provisions of this paragraph, increase the otherwise applica- ble resident limit for each qualifying hos- pital (as defined in subparagraph (F)) that submits a timely application under this subparagraph by such number as the Sec- retary may approve effective beginning July 1 of the fiscal year of the increase. (ii) Number available for distribution The aggregate number of such positions made available under this paragraph shall be equal to 200. (iii) Distribution for psychiatry or psychi- atry subspecialty residencies At least 100 of the positions made avail- able under this paragraph shall be distrib- uted for a psychiatry or psychiatry sub- specialty residency (as defined in subpara- graph (F)). (iv) Timing The Secretary shall notify hospitals of the number of positions distributed to the hospital under this paragraph as a result of an increase in the otherwise applicable resident limit by January 31 of the fiscal year of the increase. Such increase shall be effective beginning July 1 of such fiscal year. (B) Distribution For purposes of providing an increase in the otherwise applicable resident limit under subparagraph (A), the following shall apply: (i) Considerations in distribution In determining for which qualifying hos- pitals such an increase is provided under subparagraph (A), the Secretary shall take into account the demonstrated likelihood of the hospital filling the positions made available under this paragraph within the first 5 training years beginning after the date the increase would be effective, as de- termined by the Secretary. (ii) Minimum distribution for certain cat- egories of hospitals With respect to the aggregate number of such positions available for distribution under this paragraph, the Secretary shall distribute not less than 10 percent of such aggregate number to each of the following categories of hospitals: (I) Hospitals that are located in a rural area (as defined in section 1395ww(d)(2)(D) of this title) or are treat- ed as being located in a rural area pursu- ant to section 1395ww(d)(8)(E) of this title. (II) Hospitals in which the reference resident level of the hospital (as speci- fied in subparagraph (F)(iii)) is greater Page 3853 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww than the otherwise applicable resident limit. (III) Hospitals in States with— (aa) new medical schools that re- ceived ‘‘Candidate School’’ status from the Liaison Committee on Medical Education or that received ‘‘Pre-Ac- creditation’’ status from the American Osteopathic Association Commission on Osteopathic College Accreditation on or after January 1, 2000, and that have achieved or continue to progress toward ‘‘Full Accreditation’’ status (as such term is defined by the Liaison Committee on Medical Education) or toward ‘‘Accreditation’’ status (as such term is defined by the American Osteo- pathic Association Commission on Os- teopathic College Accreditation); or (bb) additional locations and branch campuses established on or after Janu- ary 1, 2000, by medical schools with ‘‘Full Accreditation’’ status (as such term is defined by the Liaison Com- mittee on Medical Education) or ‘‘Ac- creditation’’ status (as such term is de- fined by the American Osteopathic As- sociation Commission on Osteopathic College Accreditation). (IV) Hospitals that serve areas des- ignated as health professional shortage areas under section 254e(a)(1)(A) of this title, as determined by the Secretary. (iii) Pro rata application The Secretary shall ensure that each qualifying hospital that submits a timely application under subparagraph (A) re- ceives at least 1 (or a fraction of 1) of the positions made available under this para- graph before any qualifying hospital re- ceives more than 1 of such positions. (C) Requirements (i) Limitation A hospital may not receive more than 10 additional full-time equivalent residency positions under this paragraph. (ii) Prohibition on distribution to hospitals without an increase agreement No increase in the otherwise applicable resident limit of a hospital may be made under this paragraph unless such hospital agrees to increase the total number of full- time equivalent residency positions under the approved medical residency training program of such hospital by the number of such positions made available by such in- crease under this paragraph. (iii) Requirement for hospitals to expand programs If a hospital that receives an increase in the otherwise applicable resident limit under this paragraph would be eligible for an adjustment to the otherwise applicable resident limit for participation in a new medical residency training program under section 413.79(e)(3) of title 42, Code of Fed- eral Regulations (or any successor regula- tion), the hospital shall ensure that any positions made available under this para- graph are used to expand an existing pro- gram of the hospital, and not for participa- tion in a new medical residency training program. (D) Application of per resident amounts for nonprimary care With respect to additional residency posi- tions in a hospital attributable to the in- crease provided under this paragraph, the approved FTE per resident amounts are deemed to be equal to the hospital per resi- dent amounts for nonprimary care computed under paragraph (2)(D) for that hospital. (E) Permitting facilities to apply aggregation rules The Secretary shall permit hospitals re- ceiving additional residency positions at- tributable to the increase provided under this paragraph to, beginning in the fifth year after the effective date of such increase, apply such positions to the limitation amount under paragraph (4)(F) that may be aggregated pursuant to paragraph (4)(H) among members of the same affiliated group. (F) Definitions In this paragraph: (i) Otherwise applicable resident limit The term ‘‘otherwise applicable resident limit’’ means, with respect to a hospital, the limit otherwise applicable under sub- paragraphs (F)(i) and (H) of paragraph (4) on the resident level for the hospital deter- mined without regard to this paragraph but taking into account paragraphs (7)(A), (7)(B), (8)(A), (8)(B), and (9)(A). (ii) Psychiatry or psychiatry subspecialty residency The term ‘‘psychiatry or psychiatry sub- specialty residency’’ means a residency in psychiatry as accredited by the Accredita- tion Council for Graduate Medical Edu- cation for the purpose of preventing, diag- nosing, and treating mental health dis- orders. (iii) Qualifying hospital The term ‘‘qualifying hospital’’ means a hospital described in any of subclauses (I) through (IV) of subparagraph (B)(ii). (iv) Reference resident level The term ‘‘reference resident level’’ means, with respect to a hospital, the resi- dent level for the most recent cost report- ing period of the hospital ending on or be- fore December 29, 2022, for which a cost re- port has been settled (or, if not, submitted (subject to audit)), as determined by the Secretary. (v) Resident level The term ‘‘resident level’’ has the mean- ing given such term in paragraph (7)(C)(i). (i) Avoiding duplicative payments to hospitals participating in rural demonstration pro- grams The Secretary shall reduce any payment amounts otherwise determined under this sec- Page 3854 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww tion to the extent necessary to avoid duplica- tion of any payment made under section 4005(e) of the Omnibus Budget Reconciliation Act of 1987. (j) Prospective payment for inpatient rehabilita- tion services (1) Payment during transition period (A) In general Notwithstanding section 1395f(b) of this title, but subject to the provisions of section 1395e of this title, the amount of the pay- ment with respect to the operating and cap- ital costs of inpatient hospital services of a rehabilitation hospital or a rehabilitation unit (in this subsection referred to as a ‘‘re- habilitation facility’’), other than a facility making an election under subparagraph (F) in a cost reporting period beginning on or after October 1, 2000, and before October 1, 2002, is equal to the sum of— (i) the TEFRA percentage (as defined in subparagraph (C)) of the amount that would have been paid under part A with re- spect to such costs if this subsection did not apply, and (ii) the prospective payment percentage (as defined in subparagraph (C)) of the product of (I) the per unit payment rate es- tablished under this subsection for the fis- cal year in which the payment unit of service occurs, and (II) the number of such payment units occurring in the cost re- porting period. (B) Fully implemented system Notwithstanding section 1395f(b) of this title, but subject to the provisions of section 1395e of this title, the amount of the pay- ment with respect to the operating and cap- ital costs of inpatient hospital services of a rehabilitation facility for a payment unit in a cost reporting period beginning on or after October 1, 2002, or, in the case of a facility making an election under subparagraph (F), for any cost reporting period described in such subparagraph, is equal to the per unit payment rate established under this sub- section for the fiscal year in which the pay- ment unit of service occurs. (C) TEFRA and prospective payment per- centages specified For purposes of subparagraph (A), for a cost reporting period beginning— (i) on or after October 1, 2000, and before October 1, 2001, the ‘‘TEFRA percentage’’ is 662⁄3 percent and the ‘‘prospective pay- ment percentage’’ is 331⁄3 percent; and (ii) on or after October 1, 2001, and before October 1, 2002, the ‘‘TEFRA percentage’’ is 331⁄3 percent and the ‘‘prospective pay- ment percentage’’ is 662⁄3 percent. (D) Payment unit For purposes of this subsection, the term ‘‘payment unit’’ means a discharge. (E) Construction relating to transfer author- ity Nothing in this subsection shall be con- strued as preventing the Secretary from pro- viding for an adjustment to payments to take into account the early transfer of a pa- tient from a rehabilitation facility to an- other site of care. (F) Election to apply full prospective pay- ment system A rehabilitation facility may elect, not later than 30 days before its first cost report- ing period for which the payment method- ology under this subsection applies to the fa- cility, to have payment made to the facility under this subsection under the provisions of subparagraph (B) (rather than subparagraph (A)) for each cost reporting period to which such payment methodology applies. (2) Patient case mix groups (A) Establishment The Secretary shall establish— (i) classes of patient discharges of reha- bilitation facilities by functional-related groups (each in this subsection referred to as a ‘‘case mix group’’), based on impair- ment, age, comorbidities, and functional capability of the patient and such other factors as the Secretary deems appropriate to improve the explanatory power of func- tional independence measure-function re- lated groups; and (ii) a method of classifying specific pa- tients in rehabilitation facilities within these groups. (B) Weighting factors For each case mix group the Secretary shall assign an appropriate weighting which reflects the relative facility resources used with respect to patients classified within that group compared to patients classified within other groups. (C) Adjustments for case mix (i) In general The Secretary shall from time to time adjust the classifications and weighting factors established under this paragraph as appropriate to reflect changes in treat- ment patterns, technology, case mix, num- ber of payment units for which payment is made under this subchapter, and other fac- tors which may affect the relative use of resources. Such adjustments shall be made in a manner so that changes in aggregate payments under the classification system are a result of real changes and are not a result of changes in coding that are unre- lated to real changes in case mix. (ii) Adjustment Insofar as the Secretary determines that such adjustments for a previous fiscal year (or estimates that such adjustments for a future fiscal year) did (or are likely to) re- sult in a change in aggregate payments under the classification system during the fiscal year that are a result of changes in the coding or classification of patients that do not reflect real changes in case mix, the Secretary shall adjust the per payment unit payment rate for subsequent years so as to eliminate the effect of such coding or classification changes. Page 3855 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (D) Data collection The Secretary is authorized to require re- habilitation facilities that provide inpatient hospital services to submit such data as the Secretary deems necessary to establish and administer the prospective payment system under this subsection. (3) Payment rate (A) In general The Secretary shall determine a prospec- tive payment rate for each payment unit for which such rehabilitation facility is entitled to receive payment under this subchapter. Subject to subparagraph (B), such rate for payment units occurring during a fiscal year shall be based on the average payment per payment unit under this subchapter for in- patient operating and capital costs of reha- bilitation facilities using the most recent data available (as estimated by the Sec- retary as of the date of establishment of the system) adjusted— (i) by updating such per-payment-unit amount to the fiscal year involved by the weighted average of the applicable per- centage increases provided under sub- section (b)(3)(B)(ii) (for cost reporting peri- ods beginning during the fiscal year) cov- ering the period from the midpoint of the period for such data through the midpoint of fiscal year 2000 and by an increase factor (described in subparagraph (C)) specified by the Secretary for subsequent fiscal years up to the fiscal year involved; (ii) by reducing such rates by a factor equal to the proportion of payments under this subsection (as estimated by the Sec- retary) based on prospective payment amounts which are additional payments described in paragraph (4) (relating to outlier and related payments); (iii) for variations among rehabilitation facilities by area under paragraph (6); (iv) by the weighting factors established under paragraph (2)(B); and (v) by such other factors as the Sec- retary determines are necessary to prop- erly reflect variations in necessary costs of treatment among rehabilitation facili- ties. (B) Budget neutral rates The Secretary shall establish the prospec- tive payment amounts under this subsection for payment units during fiscal years 2001 and 2002 at levels such that, in the Sec- retary’s estimation, the amount of total payments under this subsection for such fis- cal years (including any payment adjust- ments pursuant to paragraphs (4) and (6) but not taking into account any payment ad- justment resulting from an election per- mitted under paragraph (1)(F)) shall be equal to 98 percent for fiscal year 2001 and 100 per- cent for fiscal year 2002 of the amount of payments that would have been made under this subchapter during the fiscal years for operating and capital costs of rehabilitation facilities had this subsection not been en- acted. In establishing such payment amounts, the Secretary shall consider the effects of the prospective payment system established under this subsection on the total number of payment units from reha- bilitation facilities and other factors de- scribed in subparagraph (A). (C) Increase factor (i) In general For purposes of this subsection for pay- ment units in each fiscal year (beginning with fiscal year 2001), the Secretary shall establish an increase factor subject to clauses (ii) and (iii). Such factor shall be based on an appropriate percentage in- crease in a market basket of goods and services comprising services for which pay- ment is made under this subsection, which may be the market basket percentage in- crease described in subsection (b)(3)(B)(iii). The increase factor to be applied under this subparagraph for each of fiscal years 2008 and 2009 shall be 0 percent. (ii) Productivity and other adjustment Subject to clause (iii), after establishing the increase factor described in clause (i) for a fiscal year, the Secretary shall re- duce such increase factor— (I) for fiscal year 2012 and each subse- quent fiscal year, by the productivity ad- justment described in subsection (b)(3)(B)(xi)(II); and (II) for each of fiscal years 2010 through 2019, by the other adjustment described in subparagraph (D). The application of this clause may result in the increase factor under this subpara- graph being less than 0.0 for a fiscal year, and may result in payment rates under this subsection for a fiscal year being less than such payment rates for the preceding fiscal year. (iii) Special rule for fiscal year 2018 The increase factor to be applied under this subparagraph for fiscal year 2018, after the application of clause (ii), shall be 1 percent. (D) Other adjustment For purposes of subparagraph (C)(ii)(II), the other adjustment described in this sub- paragraph is— (i) for each of fiscal years 2010 and 2011, 0.25 percentage point; (ii) for each of fiscal years 2012 and 2013, 0.1 percentage point; (iii) for fiscal year 2014, 0.3 percentage point; (iv) for each of fiscal years 2015 and 2016, 0.2 percentage point; and (v) for each of fiscal years 2017, 2018, and 2019, 0.75 percentage point. (4) Outlier and special payments (A) Outliers (i) In general The Secretary may provide for an addi- tional payment to a rehabilitation facility for patients in a case mix group, based Page 3856 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww upon the patient being classified as an outlier based on an unusual length of stay, costs, or other factors specified by the Sec- retary. (ii) Payment based on marginal cost of care The amount of such additional payment under clause (i) shall be determined by the Secretary and shall approximate the mar- ginal cost of care beyond the cutoff point applicable under clause (i). (iii) Total payments The total amount of the additional pay- ments made under this subparagraph for payment units in a fiscal year may not ex- ceed 5 percent of the total payments pro- jected or estimated to be made based on prospective payment rates for payment units in that year. (B) Adjustment The Secretary may provide for such ad- justments to the payment amounts under this subsection as the Secretary deems ap- propriate to take into account the unique circumstances of rehabilitation facilities lo- cated in Alaska and Hawaii. (5) Publication The Secretary shall provide for publication in the Federal Register, on or before August 1 before each fiscal year (beginning with fiscal year 2001), of the classification and weighting factors for case mix groups under paragraph (2) for such fiscal year and a description of the methodology and data used in computing the prospective payment rates under this sub- section for that fiscal year. (6) Area wage adjustment The Secretary shall adjust the proportion (as estimated by the Secretary from time to time) of rehabilitation facilities’ costs which are attributable to wages and wage-related costs, of the prospective payment rates com- puted under paragraph (3) for area differences in wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the reha- bilitation facility compared to the national average wage level for such facilities. Not later than October 1, 2001 (and at least every 36 months thereafter), the Secretary shall update the factor under the preceding sentence on the basis of information available to the Secretary (and updated as appropriate) of the wages and wage-related costs incurred in furnishing reha- bilitation services. Any adjustments or up- dates made under this paragraph for a fiscal year shall be made in a manner that assures that the aggregated payments under this sub- section in the fiscal year are not greater or less than those that would have been made in the year without such adjustment. (7) Quality reporting (A) Reduction in update for failure to report (i) In general For purposes of fiscal year 2014 and each subsequent fiscal year, in the case of a re- habilitation facility that does not submit data to the Secretary in accordance with subparagraphs (C) and (F) with respect to such a fiscal year, after determining the increase factor described in paragraph (3)(C), and after application of subpara- graphs (C)(iii) and (D) of paragraph (3), the Secretary shall reduce such increase factor for payments for discharges occurring dur- ing such fiscal year by 2 percentage points. (ii) Special rule The application of this subparagraph may result in the increase factor described in paragraph (3)(C) being less than 0.0 for a fiscal year, and may result in payment rates under this subsection for a fiscal year being less than such payment rates for the preceding fiscal year. (B) Noncumulative application Any reduction under subparagraph (A) shall apply only with respect to the fiscal year involved and the Secretary shall not take into account such reduction in com- puting the payment amount under this sub- section for a subsequent fiscal year. (C) Submission of quality data Subject to subparagraph (G), for fiscal year 2014 and each subsequent fiscal year, each rehabilitation facility shall submit to the Secretary data on quality measures specified under subparagraph (D). Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this subparagraph. (D) Quality measures (i) In general Subject to clause (ii), any measure speci- fied by the Secretary under this subpara- graph must have been endorsed by the en- tity with a contract under section 1395aaa(a) of this title. (ii) Exception In the case of a specified area or medical topic determined appropriate by the Sec- retary for which a feasible and practical measure has not been endorsed by the enti- ty with a contract under section 1395aaa(a) of this title, the Secretary may specify a measure that is not so endorsed as long as due consideration is given to measures that have been endorsed or adopted by a consensus organization identified by the Secretary. (iii) Time frame Not later than October 1, 2012, the Sec- retary shall publish the measures selected under this subparagraph that will be appli- cable with respect to fiscal year 2014. (E) Public availability of data submitted (i) In general The Secretary shall establish procedures for making data submitted under subpara- graph (C) and subparagraph (F)(i) available to the public. Such procedures shall ensure that a rehabilitation facility has the op- portunity to review the data that is to be made public with respect to the facility Page 3857 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww prior to such data being made public. The Secretary shall report quality measures that relate to services furnished in inpa- tient settings in rehabilitation facilities on the Internet website of the Centers for Medicare & Medicaid Services. (ii) Public recognition of rehabilitation in- novation centers Beginning not later than 18 months after January 5, 2023, the Secretary shall make publicly available on such Internet website, in addition to the information re- quired to be reported on such website under clause (i), a list of all rehabilitation innovation centers, and shall update such list on such website not less frequently than biennially. (iii) Rehabilitation innovation centers de- fined For purposes of clause (ii), the term ‘‘re- habilitation innovation centers’’ means a rehabilitation facility that, as of the appli- cable date (as defined in clause (v)), is a re- habilitation facility described in clause (iv). (iv) Rehabilitation facility described (I) In general Subject to subclause (II), a rehabilita- tion facility described in this clause is a rehabilitation facility that— (aa) is classified as a rehabilitation facility under the IRF Rate Setting File for the Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2019 (83 Fed. Reg. 38514), or any successor regula- tions that contain such information; (bb) holds at least one Federal reha- bilitation research and training des- ignation for research projects on trau- matic brain injury or spinal cord in- jury from the National Institute on Disability, Independent Living, and Rehabilitation Research at the Depart- ment of Health and Human Services, based on such data submitted to the Secretary by a facility, in a form, manner, and time frame specified by the Secretary; (cc) submits to the Secretary a de- scription of the clinical research enter- prise of the facility and a summary of research activities of the facility that are supported by Federal agencies; (dd) has a minimum Medicare esti- mated average weight per discharge of 1.20 for the most recent fiscal year for which such information is available ac- cording to the IRF Rate Setting File described in item (aa), or any successor regulations that contain such informa- tion; and (ee) has a minimum teaching status of 0.075 for the most recent fiscal year for which such information is available according to the IRF Rate Setting File described in item (aa), or any successor regulations that contain such informa- tion. (II) Waiver The Secretary may, as determined ap- propriate, waive any of the requirements under items (aa) through (ee) of sub- clause (I). (v) Applicable date defined For purposes of clauses (iii) and (iv), the term ‘‘applicable date’’ means— (I) with respect to the initial publica- tion of a list under clause (ii), January 5, 2023; and (II) with respect to the publication of an updated list under clause (ii), a date specified by the Secretary that is not more than one year prior to the date of such publication. (vi) Implementation Notwithstanding any other provision of law the Secretary may implement clauses (ii) through (v) by program instruction or otherwise. (vii) Nonapplication of Paperwork Reduc- tion Act Chapter 35 of title 44 shall not apply to data collected under clauses (ii) through (v). (F) Submission of additional data (i) In general For the fiscal year beginning on the specified application date (as defined in subsection (a)(2)(E) of section 1395lll of this title), as applicable with respect to inpa- tient rehabilitation facilities and quality measures under subsection (c)(1) of such section and measures under subsection (d)(1) of such section, and each subsequent fiscal year, in addition to such data on the quality measures described in subpara- graph (C), each rehabilitation facility shall submit to the Secretary data on the qual- ity measures under such subsection (c)(1) and any necessary data specified by the Secretary under such subsection (d)(1). (ii) Standardized patient assessment data For fiscal year 2019 and each subsequent fiscal year, in addition to such data de- scribed in clause (i), each rehabilitation fa- cility shall submit to the Secretary stand- ardized patient assessment data required under subsection (b)(1) of section 1395lll of this title. (iii) Submission Such data shall be submitted in the form and manner, and at the time, specified by the Secretary for purposes of this subpara- graph. (G) Non-duplication To the extent data submitted under sub- paragraph (F) duplicates other data required to be submitted under subparagraph (C), the submission of such data under subparagraph (F) shall be in lieu of the submission of such data under subparagraph (C). The previous sentence shall not apply insofar as the Sec- retary determines it is necessary to avoid a delay in the implementation of section Page 3858 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 15 So in original. Probably should not be capitalized. 1395lll of this title, taking into account the different specified application dates under subsection (a)(2)(E) of such section. (8) Limitation on review There shall be no administrative or judicial review under section 1395ff of this title, 1395oo of this title, or otherwise of the establishment of— (A) case mix groups, of the methodology for the classification of patients within such groups, and of the appropriate weighting fac- tors thereof under paragraph (2), (B) the prospective payment rates under paragraph (3), (C) outlier and special payments under paragraph (4), and (D) area wage adjustments under para- graph (6). (k) Payment to nonhospital providers (1) In general For cost reporting periods beginning on or after October 1, 1997, the Secretary may estab- lish rules for payment to qualified nonhospital providers for their direct costs of medical edu- cation, if those costs are incurred in the oper- ation of an approved medical residency train- ing program described in subsection (h). Such rules shall specify the amounts, form, and manner in which such payments will be made and the portion of such payments that will be made from each of the trust funds under this subchapter. (2) Qualified nonhospital providers For purposes of this subsection, the term ‘‘qualified nonhospital providers’’ means— (A) a Federally 15 qualified health center, as defined in section 1395x(aa)(4) of this title; (B) a rural health clinic, as defined in sec- tion 1395x(aa)(2) of this title; (C) Medicare+Choice organizations; and (D) such other providers (other than hos- pitals) as the Secretary determines to be ap- propriate. (l) Payment for nursing and allied health edu- cation for managed care enrollees (1) In general For portions of cost reporting periods occur- ring in a year (beginning with 2000), the Sec- retary shall provide for an additional payment amount for any hospital that receives pay- ments for the costs of approved educational activities for nurse and allied health profes- sional training under section 1395x(v)(1) of this title. (2) Payment amount The additional payment amount under this subsection for each hospital for portions of cost reporting periods occurring in a year shall be an amount specified by the Secretary in a manner consistent with the following: (A) Determination of managed care enrollee payment ratio for graduate medical edu- cation payments The Secretary shall estimate the ratio of payments for all hospitals for portions of cost reporting periods occurring in the year under subsection (h)(3)(D) to total direct graduate medical education payments esti- mated for such portions of periods under subsection (h)(3). (B) Application to fee-for-service nursing and allied health education payments (i) In general Subject to clause (ii), such ratio shall be applied to the Secretary’s estimate of total payments for nursing and allied health education determined under section 1395x(v) of this title for portions of cost re- porting periods occurring in the year to determine a total amount of additional payments for nursing and allied health education to be distributed to hospitals under this subsection for portions of cost reporting periods occurring in the year; except that in no case shall such total amount exceed $60,000,000 in any year. (ii) Exception to annual limitation for each of 2010 through 2019 For each of 2010 through 2019, the limita- tion under clause (i) on the total amount of additional payments for nursing and al- lied health education to be distributed to hospitals under this subsection for por- tions of cost reporting periods occurring in the year shall not apply to such payments made in such year to those hospitals that, as of December 29, 2022, are operating a school of nursing, a school of allied health, or a school of nursing and allied health. (C) Application to hospital The amount of payment under this sub- section to a hospital for portions of cost re- porting periods occurring in a year is equal to the total amount of payments determined under subparagraph (B) for the year multi- plied by the ratio of— (i) the product of (I) the Secretary’s esti- mate of the ratio of the amount of pay- ments made under section 1395x(v) of this title to the hospital for nursing and allied health education activities for the hos- pital’s cost reporting period ending in the second preceding fiscal year, to the hos- pital’s total inpatient days for such period, and (II) the total number of inpatient days (as established by the Secretary) for such period which are attributable to services furnished to individuals who are enrolled under a risk sharing contract with an eli- gible organization under section 1395mm of this title and who are entitled to benefits under part A or who are enrolled with a Medicare+Choice organization under part C; to (ii) the sum of the products determined under clause (i) for such cost reporting pe- riods. (m) Prospective payment for long-term care hos- pitals (1) Reference to establishment and implemen- tation of system For provisions related to the establishment and implementation of a prospective payment Page 3859 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww system for payments under this subchapter for inpatient hospital services furnished by a long-term care hospital described in sub- section (d)(1)(B)(iv), see section 123 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999 and section 307(b) of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000. (2) Update for rate year 2008 In implementing the system described in paragraph (1) for discharges occurring during the rate year ending in 2008 for a hospital, the base rate for such discharges for the hospital shall be the same as the base rate for dis- charges for the hospital occurring during the rate year ending in 2007. (3) Implementation for rate year 2010 and sub- sequent years (A) In general Subject to subparagraph (C), in imple- menting the system described in paragraph (1) for rate year 2010 and each subsequent rate year, any annual update to a standard Federal rate for discharges for the hospital during the rate year, shall be reduced— (i) for rate year 2012 and each subsequent rate year, by the productivity adjustment described in subsection (b)(3)(B)(xi)(II); and (ii) for each of rate years 2010 through 2019, by the other adjustment described in paragraph (4). (B) Special rule The application of this paragraph may re- sult in such annual update being less than 0.0 for a rate year, and may result in pay- ment rates under the system described in paragraph (1) for a rate year being less than such payment rates for the preceding rate year. (C) Additional special rule For fiscal year 2018, the annual update under subparagraph (A) for the fiscal year, after application of clauses (i) and (ii) of sub- paragraph (A), shall be 1 percent. (4) Other adjustment For purposes of paragraph (3)(A)(ii), the other adjustment described in this paragraph is— (A) for rate year 2010, 0.25 percentage point; (B) for rate year 2011, 0.50 percentage point; (C) for each of the rate years beginning in 2012 and 2013, 0.1 percentage point; (D) for rate year 2014, 0.3 percentage point; (E) for each of rate years 2015 and 2016, 0.2 percentage point; and (F) for each of rate years 2017, 2018, and 2019, 0.75 percentage point. (5) Quality reporting (A) Reduction in update for failure to report (i) In general Under the system described in paragraph (1), for rate year 2014 and each subsequent rate year, in the case of a long-term care hospital that does not submit data to the Secretary in accordance with subpara- graphs (C) and (F) with respect to such a rate year, any annual update to a standard Federal rate for discharges for the hospital during the rate year, and after application of paragraph (3), shall be reduced by 2 per- centage points. (ii) Special rule The application of this subparagraph may result in such annual update being less than 0.0 for a rate year, and may re- sult in payment rates under the system de- scribed in paragraph (1) for a rate year being less than such payment rates for the preceding rate year. (B) Noncumulative application Any reduction under subparagraph (A) shall apply only with respect to the rate year involved and the Secretary shall not take into account such reduction in com- puting the payment amount under the sys- tem described in paragraph (1) for a subse- quent rate year. (C) Submission of quality data Subject to subparagraph (G), for rate year 2014 and each subsequent rate year, each long-term care hospital shall submit to the Secretary data on quality measures specified under subparagraph (D). Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this subparagraph. (D) Quality measures (i) In general Subject to clause (ii), any measure speci- fied by the Secretary under this subpara- graph must have been endorsed by the en- tity with a contract under section 1395aaa(a) of this title. (ii) Exception In the case of a specified area or medical topic determined appropriate by the Sec- retary for which a feasible and practical measure has not been endorsed by the enti- ty with a contract under section 1395aaa(a) of this title, the Secretary may specify a measure that is not so endorsed as long as due consideration is given to measures that have been endorsed or adopted by a consensus organization identified by the Secretary. (iii) Time frame Not later than October 1, 2012, the Sec- retary shall publish the measures selected under this subparagraph that will be appli- cable with respect to rate year 2014. (iv) Additional quality measures Not later than October 1, 2015, the Sec- retary shall establish a functional status quality measure for change in mobility among inpatients requiring ventilator sup- port. (E) Public availability of data submitted The Secretary shall establish procedures for making data submitted under subpara- Page 3860 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww graph (C) and subparagraph (F)(i) available to the public. Such procedures shall ensure that a long-term care hospital has the oppor- tunity to review the data that is to be made public with respect to the hospital prior to such data being made public. The Secretary shall report quality measures that relate to services furnished in inpatient settings in long-term care hospitals on the Internet website of the Centers for Medicare & Med- icaid Services. (F) Submission of additional data (i) In general For the rate year beginning on the speci- fied application date (as defined in sub- section (a)(2)(E) of section 1395lll of this title), as applicable with respect to long- term care hospitals and quality measures under subsection (c)(1) of such section and measures under subsection (d)(1) of such section, and each subsequent rate year, in addition to the data on the quality meas- ures described in subparagraph (C), each long-term care hospital (other than a hos- pital classified under subsection (d)(1)(B)(vi)) shall submit to the Secretary data on the quality measures under such subsection (c)(1) and any necessary data specified by the Secretary under such sub- section (d)(1). (ii) Standardized patient assessment data For rate year 2019 and each subsequent rate year, in addition to such data de- scribed in clause (i), each long-term care hospital (other than a hospital classified under subsection (d)(1)(B)(vi)) shall submit to the Secretary standardized patient as- sessment data required under subsection (b)(1) of section 1395lll of this title. (iii) Submission Such data shall be submitted in the form and manner, and at the time, specified by the Secretary for purposes of this subpara- graph. (G) Non-duplication To the extent data submitted under sub- paragraph (F) duplicates other data required to be submitted under subparagraph (C), the submission of such data under subparagraph (F) shall be in lieu of the submission of such data under subparagraph (C). The previous sentence shall not apply insofar as the Sec- retary determines it is necessary to avoid a delay in the implementation of section 1395lll of this title, taking into account the different specified application dates under subsection (a)(2)(E) of such section. (6) Application of site neutral IPPS payment rate in certain cases (A) General application of site neutral IPPS payment amount for discharges failing to meet applicable criteria (i) In general For a discharge in cost reporting periods beginning on or after October 1, 2015, ex- cept as provided in clause (ii) and subpara- graphs (C), (E), (F), and (G), payment under this subchapter to a long-term care hospital for inpatient hospital services shall be made at the applicable site neu- tral payment rate (as defined in subpara- graph (B)). (ii) Exception for certain discharges meet- ing criteria Clause (i) shall not apply (and payment shall be made to a long-term care hospital without regard to this paragraph) for a dis- charge if— (I) the discharge meets the ICU cri- terion under clause (iii) or the ventilator criterion under clause (iv); and (II) the discharge does not have a prin- cipal diagnosis relating to a psychiatric diagnosis or to rehabilitation. (iii) Intensive care unit (ICU) criterion (I) In general The criterion specified in this clause (in this paragraph referred to as the ‘‘ICU criterion’’), for a discharge from a long-term care hospital, is that the stay in the long-term care hospital ending with such discharge was immediately preceded by a discharge from a stay in a subsection (d) hospital that included at least 3 days in an intensive care unit (ICU), as determined by the Secretary. (II) Determining ICU days In determining intensive care unit days under subclause (I), the Secretary shall use data from revenue center codes 020x or 021x (or such successor codes as the Secretary may establish). (iv) Ventilator criterion The criterion specified in this clause (in this paragraph referred to as the ‘‘venti- lator criterion’’), for a discharge from a long-term care hospital, is that— (I) the stay in the long-term care hos- pital ending with such discharge was im- mediately preceded by a discharge from a stay in a subsection (d) hospital; and (II) the individual discharged was as- signed to a Medicare-Severity-Long- Term-Care-Diagnosis-Related-Group (MS–LTC–DRG) based on the receipt of ventilator services of at least 96 hours. (B) Applicable site neutral payment rate de- fined (i) In general In this paragraph, the term ‘‘applicable site neutral payment rate’’ means— (I) for discharges in cost reporting pe- riods beginning during fiscal years 2016 through 2019, the blended payment rate specified in clause (iii); and (II) for discharges in cost reporting pe- riods beginning during fiscal year 2020 or a subsequent fiscal year, the site neutral payment rate (as defined in clause (ii)). (ii) Site neutral payment rate defined Subject to clause (iv), in this paragraph, the term ‘‘site neutral payment rate’’ means the lower of— Page 3861 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (I) the IPPS comparable per diem amount determined under paragraph (d)(4) of section 412.529 of title 42, Code of Federal Regulations, including any ap- plicable outlier payments under section 412.525 of such title; or (II) 100 percent of the estimated cost for the services involved. (iii) Blended payment rate The blended payment rate specified in this clause, for a long-term care hospital for inpatient hospital services for a dis- charge, is comprised of— (I) half of the site neutral payment rate (as defined in clause (ii)) for the dis- charge; and (II) half of the payment rate that would otherwise be applicable to such discharge without regard to this para- graph, as determined by the Secretary. (iv) Adjustment For each of fiscal years 2018 through 2026, the amount that would otherwise apply under clause (ii)(I) for the year (de- termined without regard to this clause) shall be reduced by 4.6 percent. (C) Limiting payment for all hospital dis- charges to site neutral payment rate for hospitals failing to meet applicable LTCH discharge thresholds (i) Notice of LTCH discharge payment per- centage For cost reporting periods beginning dur- ing or after fiscal year 2016, the Secretary shall inform each long-term care hospital of its LTCH discharge payment percentage (as defined in clause (iv)) for such period. (ii) Limitation For cost reporting periods beginning dur- ing or after fiscal year 2020, if the Sec- retary determines for a long-term care hospital that its LTCH discharge payment percentage for the period is not at least 50 percent— (I) the Secretary shall inform the hos- pital of such fact; and (II) subject to clause (iii), for all dis- charges in the hospital in each suc- ceeding cost reporting period, the pay- ment amount under this subsection shall be the payment amount that would apply under subsection (d) for the dis- charge if the hospital were a subsection (d) hospital. (iii) Process for reinstatement The Secretary shall establish a process whereby a long-term care hospital may seek to and have the provisions of sub- clause (II) of clause (ii) discontinued with respect to that hospital. (iv) LTCH discharge payment percentage In this subparagraph, the term ‘‘LTCH discharge payment percentage’’ means, with respect to a long-term care hospital for a cost reporting period beginning dur- ing or after fiscal year 2020, the ratio (ex- pressed as a percentage) of— (I) the number of Medicare fee-for-serv- ice discharges for such hospital and pe- riod for which payment is not made at the site neutral payment rate, to (II) the total number of Medicare fee- for-service discharges for such hospital and period. (D) Inclusion of subsection (d) Puerto Rico hospitals In this paragraph, any reference in this paragraph to a subsection (d) hospital shall be deemed to include a reference to a sub- section (d) Puerto Rico hospital. (E) Temporary exception for certain severe wound discharges from certain long-term care hospitals (i) In general In the case of a discharge occurring prior to January 1, 2017, subparagraph (A)(i) shall not apply (and payment shall be made to a long-term care hospital without regard to this paragraph) if such dis- charge— (I) is from a long-term care hospital that is— (aa) identified by the last sentence of subsection (d)(1)(B); and (bb) located in a rural area (as de- fined in subsection (d)(2)(D)) or treated as being so located pursuant to sub- section (d)(8)(E); and (II) the individual discharged has a se- vere wound. (ii) Severe wound defined In this subparagraph, the term ‘‘severe wound’’ means a stage 3 wound, stage 4 wound, unstageable wound, non-healing surgical wound, infected wound, fistula, osteomyelitis, or wound with morbid obe- sity, as identified in the claim from the long-term care hospital. (F) Temporary exception for certain spinal cord specialty hospitals For discharges in cost reporting periods beginning during fiscal years 2018 and 2019, subparagraph (A)(i) shall not apply (and pay- ment shall be made to a long-term care hos- pital without regard to this paragraph) if such discharge is from a long-term care hos- pital that meets each of the following re- quirements: (i) Not-for-profit The long-term care hospital was a not- for-profit long-term care hospital on June 1, 2014, as determined by cost report data. (ii) Primarily providing treatment for cata- strophic spinal cord or acquired brain injuries or other paralyzing neuro- muscular conditions Of the discharges in calendar year 2013 from the long-term care hospital for which payment was made under this section, at least 50 percent were classified under MS–LTCH–DRGs 28, 29, 52, 57, 551, 573, and 963. Page 3862 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (iii) Significant out-of-state admissions (I) In general The long-term care hospital discharged inpatients (including both individuals entitled to, or enrolled for, benefits under this subchapter and individuals not so entitled or enrolled) during fiscal year 2014 who had been admitted from at least 20 of the 50 States, determined by the States of residency of such inpa- tients and based on such data submitted by the hospital to the Secretary as the Secretary may require. (II) Implementation Notwithstanding any other provision of law, the Secretary may implement subclause (I) by program instruction or otherwise. (III) Non-application of Paperwork Re- duction Act Chapter 35 of title 44 shall not apply to data collected under this clause. (G) Additional temporary exception for cer- tain severe wound discharges from cer- tain long-term care hospitals (i) In general For a discharge occurring in a cost re- porting period beginning during fiscal year 2018, subparagraph (A)(i) shall not apply (and payment shall be made to a long-term care hospital without regard to this para- graph) if such discharge— (I) is from a long-term care hospital identified by the last sentence of sub- section (d)(1)(B); (II) is classified under MS–LTCH–DRG 602, 603, 539, or 540; and (III) is with respect to an individual treated by a long-term care hospital for a severe wound. (ii) Severe wound defined In this subparagraph, the term ‘‘severe wound’’ means a wound which is a stage 3 wound, stage 4 wound, unstageable wound, non-healing surgical wound, or fistula as identified in the claim from the long-term care hospital. (iii) Wound defined In this subparagraph, the term ‘‘wound’’ means an injury involving division of tis- sue or rupture of the integument or mu- cous membrane with exposure to the ex- ternal environment. (7) Treatment of high cost outlier payments (A) Adjustment to the standard Federal pay- ment rate for estimated high cost outlier payments Under the system described in paragraph (1), for fiscal years beginning on or after Oc- tober 1, 2017, the Secretary shall reduce the standard Federal payment rate as if the esti- mated aggregate amount of high cost outlier payments for standard Federal payment rate discharges for each such fiscal year would be equal to 8 percent of estimated aggregate payments for standard Federal payment rate discharges for each such fiscal year. (B) Limitation on high cost outlier payment amounts Notwithstanding subparagraph (A), the Secretary shall set the fixed loss amount for high cost outlier payments such that the es- timated aggregate amount of high cost outlier payments made for standard Federal payment rate discharges for fiscal years be- ginning on or after October 1, 2017, shall be equal to 99.6875 percent of 8 percent of esti- mated aggregate payments for standard Fed- eral payment rate discharges for each such fiscal year. (C) Waiver of budget neutrality Any reduction in payments resulting from the application of subparagraph (B) shall not be taken into account in applying any budg- et neutrality provision under such system. (D) No effect on site neutral high cost outlier payment rate This paragraph shall not apply with re- spect to the computation of the applicable site neutral payment rate under paragraph (6). (n) Incentives for adoption and meaningful use of certified EHR technology (1) In general Subject to the succeeding provisions of this subsection, with respect to inpatient hospital services furnished by an eligible hospital dur- ing a payment year (as defined in paragraph (2)(G)), if the eligible hospital is a meaningful EHR user (as determined under paragraph (3)) for the EHR reporting period with respect to such year, in addition to the amount other- wise paid under this section, there also shall be paid to the eligible hospital, from the Fed- eral Hospital Insurance Trust Fund estab- lished under section 1395i of this title, an amount equal to the applicable amount speci- fied in paragraph (2)(A) for the hospital for such payment year. (2) Payment amount (A) In general Subject to the succeeding subparagraphs of this paragraph, the applicable amount specified in this subparagraph for an eligible hospital for a payment year is equal to the product of the following: (i) Initial amount The sum of— (I) the base amount specified in sub- paragraph (B); plus (II) the discharge related amount spec- ified in subparagraph (C) for a 12-month period selected by the Secretary with re- spect to such payment year. (ii) Medicare share The Medicare share as specified in sub- paragraph (D) for the eligible hospital for a period selected by the Secretary with re- spect to such payment year. (iii) Transition factor The transition factor specified in sub- paragraph (E) for the eligible hospital for the payment year. Page 3863 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (B) Base amount The base amount specified in this subpara- graph is $2,000,000. (C) Discharge related amount The discharge related amount specified in this subparagraph for a 12-month period se- lected by the Secretary shall be determined as the sum of the amount, estimated based upon total discharges for the eligible hos- pital (regardless of any source of payment) for the period, for each discharge up to the 23,000th discharge as follows: (i) For the first through 1,149th dis- charge, $0. (ii) For the 1,150th through the 23,000th discharge, $200. (iii) For any discharge greater than the 23,000th, $0. (D) Medicare share The Medicare share specified under this subparagraph for an eligible hospital for a period selected by the Secretary for a pay- ment year is equal to the fraction— (i) the numerator of which is the sum (for such period and with respect to the el- igible hospital) of— (I) the estimated number of inpatient- bed-days (as established by the Sec- retary) which are attributable to indi- viduals with respect to whom payment may be made under part A; and (II) the estimated number of inpatient- bed-days (as so established) which are at- tributable to individuals who are en- rolled with a Medicare Advantage orga- nization under part C; and (ii) the denominator of which is the product of— (I) the estimated total number of inpa- tient-bed-days with respect to the eligi- ble hospital during such period; and (II) the estimated total amount of the eligible hospital’s charges during such period, not including any charges that are attributable to charity care (as such term is used for purposes of hospital cost reporting under this subchapter), divided by the estimated total amount of the hospital’s charges during such period. Insofar as the Secretary determines that data are not available on charity care nec- essary to calculate the portion of the for- mula specified in clause (ii)(II), the Sec- retary shall use data on uncompensated care and may adjust such data so as to be an ap- propriate proxy for charity care including a downward adjustment to eliminate bad debt data from uncompensated care data. In the absence of the data necessary, with respect to a hospital, for the Secretary to compute the amount described in clause (ii)(II), the amount under such clause shall be deemed to be 1. In the absence of data, with respect to a hospital, necessary to compute the amount described in clause (i)(II), the amount under such clause shall be deemed to be 0. (E) Transition factor specified (i) In general Subject to clause (ii), the transition fac- tor specified in this subparagraph for an eligible hospital for a payment year is as follows: (I) For the first payment year for such hospital, 1. (II) For the second payment year for such hospital, 3⁄4. (III) For the third payment year for such hospital, 1⁄2. (IV) For the fourth payment year for such hospital, 1⁄4. (V) For any succeeding payment year for such hospital, 0. (ii) Phase down for eligible hospitals first adopting EHR after 2013 If the first payment year for an eligible hospital is after 2013, then the transition factor specified in this subparagraph for a payment year for such hospital is the same as the amount specified in clause (i) for such payment year for an eligible hospital for which the first payment year is 2013. If the first payment year for an eligible hos- pital is after 2015 then the transition fac- tor specified in this subparagraph for such hospital and for such year and any subse- quent year shall be 0. (F) Form of payment The payment under this subsection for a payment year may be in the form of a single consolidated payment or in the form of such periodic installments as the Secretary may specify. (G) Payment year defined (i) In general For purposes of this subsection, the term ‘‘payment year’’ means a fiscal year begin- ning with fiscal year 2011. (ii) First, second, etc. payment year The term ‘‘first payment year’’ means, with respect to inpatient hospital services furnished by an eligible hospital, the first fiscal year for which an incentive payment is made for such services under this sub- section. The terms ‘‘second payment year’’, ‘‘third payment year’’, and ‘‘fourth payment year’’ mean, with respect to an eligible hospital, each successive year im- mediately following the first payment year for that hospital. (3) Meaningful EHR user (A) In general For purposes of paragraph (1), an eligible hospital shall be treated as a meaningful EHR user for an EHR reporting period for a payment year (or, for purposes of subsection (b)(3)(B)(ix), for an EHR reporting period under such subsection for a fiscal year) if each of the following requirements are met: (i) Meaningful use of certified EHR tech- nology The eligible hospital demonstrates to the satisfaction of the Secretary, in ac- Page 3864 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 16 So in original. Probably should be ‘‘(6)(A)’’. cordance with subparagraph (C)(i), that during such period the hospital is using certified EHR technology in a meaningful manner. (ii) Information exchange The eligible hospital demonstrates to the satisfaction of the Secretary, in ac- cordance with subparagraph (C)(i), that during such period such certified EHR technology is connected in a manner that provides, in accordance with law and standards applicable to the exchange of in- formation, for the electronic exchange of health information to improve the quality of health care, such as promoting care co- ordination, and the hospital demonstrates (through a process specified by the Sec- retary, such as the use of an attestation) that the hospital has not knowingly and willfully taken action (such as to disable functionality) to limit or restrict the com- patibility or interoperability of the cer- tified EHR technology. (iii) Reporting on measures using EHR Subject to subparagraph (B)(ii) and using such certified EHR technology, the eligible hospital submits information for such pe- riod, in a form and manner specified by the Secretary, on such clinical quality meas- ures and such other measures as selected by the Secretary under subparagraph (B)(i). The Secretary shall seek to improve the use of electronic health records and health care quality over time. (B) Reporting on measures (i) Selection The Secretary shall select measures for purposes of subparagraph (A)(iii) but only consistent with the following: (I) The Secretary shall provide pref- erence to clinical quality measures that have been selected for purposes of apply- ing subsection (b)(3)(B)(viii) or that have been endorsed by the entity with a con- tract with the Secretary under section 1395aaa(a) of this title. (II) Prior to any measure (other than a clinical quality measure that has been selected for purposes of applying sub- section (b)(3)(B)(viii)) being selected under this subparagraph, the Secretary shall publish in the Federal Register such measure and provide for a period of public comment on such measure. (ii) Limitations The Secretary may not require the elec- tronic reporting of information on clinical quality measures under subparagraph (A)(iii) unless the Secretary has the capac- ity to accept the information electroni- cally, which may be on a pilot basis. (iii) Coordination of reporting of informa- tion In selecting such measures, and in estab- lishing the form and manner for reporting measures under subparagraph (A)(iii), the Secretary shall seek to avoid redundant or duplicative reporting with reporting other- wise required, including reporting under subsection (b)(3)(B)(viii). (C) Demonstration of meaningful use of cer- tified EHR technology and information exchange (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 in- clude— (I) an attestation; (II) the submission of claims with ap- propriate coding (such as a code indi- cating that inpatient care was docu- mented using certified EHR technology); (III) a survey response; (IV) reporting under subparagraph (A)(iii); and (V) other means specified by the Sec- retary. (ii) Use of part D data Notwithstanding sections 1395w–115(d)(2)(B) and 1395w–115(f)(2) of this title, the Secretary may use data regard- ing drug claims submitted for purposes of section 1395w–115 of this title that are nec- essary for purposes of subparagraph (A). (4) Application (A) Limitations on review There shall be no administrative or judi- cial review under section 1395ff of this title, section 1395oo of this title, or otherwise, of— (i) the methodology and standards for determining payment amounts under this subsection and payment adjustments under subsection (b)(3)(B)(ix), including se- lection of periods under paragraph (2) for determining, and making estimates or using proxies of, discharges under para- graph (2)(C) and inpatient-bed-days, hos- pital charges, charity charges, and Medi- care share under paragraph (2)(D); (ii) the methodology and standards for determining a meaningful EHR user under paragraph (3), including selection of meas- ures 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)(II); and (iii) the specification of EHR reporting periods under paragraph (6)(B) 16 and the selection of the form of payment under paragraph (2)(F). (B) Posting on website The Secretary shall post on the Internet website of the Centers for Medicare & Med- icaid Services, in an easily understandable format, a list of the names of the eligible hospitals that are meaningful EHR users under this subsection or subsection (b)(3)(B)(ix) (and a list of the names of crit- ical access hospitals to which paragraph (3) Page 3865 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww or (4) of section 1395f(l) of this title applies), and other relevant data as determined ap- propriate by the Secretary. The Secretary shall ensure that an eligible hospital (or critical access hospital) has the opportunity 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 EHR technology defined The term ‘‘certified EHR technology’’ has the meaning given such term in section 1395w–4(o)(4) of this title. (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 hos- pital that is a subsection (d) hospital or a subsection (d) Puerto Rico hospital. (o) Hospital value-based purchasing program (1) Establishment (A) In general Subject to the succeeding provisions of this subsection, the Secretary shall estab- lish a hospital value-based purchasing pro- gram (in this subsection referred to as the ‘‘Program’’) under which value-based incen- tive payments are made in a fiscal year to hospitals that meet the performance stand- ards under paragraph (3) for the performance period for such fiscal year (as established under paragraph (4)). (B) Program to begin in fiscal year 2013 The Program shall apply to payments for discharges occurring on or after October 1, 2012. (C) Applicability of Program to hospitals (i) In general For purposes of this subsection, subject to clause (ii), the term ‘‘hospital’’ means a subsection (d) hospital (as defined in sub- section (d)(1)(B)). (ii) Exclusions The term ‘‘hospital’’ shall not include, with respect to a fiscal year, a hospital— (I) that is subject to the payment re- duction under subsection (b)(3)(B)(viii)(I) for such fiscal year; (II) for which, during the performance period for such fiscal year, the Secretary has cited deficiencies that pose imme- diate jeopardy to the health or safety of patients; (III) for which there are not a min- imum number (as determined by the Sec- retary) of measures that apply to the hospital for the performance period for such fiscal year; or (IV) for which there are not a min- imum number (as determined by the Sec- retary) of cases for the measures that apply to the hospital for the perform- ance period for such fiscal year. (iii) Independent analysis For purposes of determining the min- imum numbers under subclauses (III) and (IV) of clause (ii), the Secretary shall have conducted an independent analysis of what numbers are appropriate. (iv) Exemption In the case of a hospital that is paid under section 1395f(b)(3) of this title, the Secretary may exempt such hospital from the application of this subsection if the State which is paid under such section sub- mits an annual report to the Secretary de- scribing how a similar program in the State for a participating hospital or hos- pitals achieves or surpasses the measured results in terms of patient health out- comes and cost savings established under this subsection. (2) Measures (A) In general The Secretary shall select measures, other than measures of readmissions, for purposes of the Program. Such measures shall be se- lected from the measures specified under subsection (b)(3)(B)(viii). (B) Requirements (i) For fiscal year 2013 For value-based incentive payments made with respect to discharges occurring during fiscal year 2013, the Secretary shall ensure the following: (I) Conditions or procedures Measures are selected under subpara- graph (A) that cover at least the fol- lowing 5 specific conditions or proce- dures: (aa) Acute myocardial infarction (AMI). (bb) Heart failure. (cc) Pneumonia. (dd) Surgeries, as measured by the Surgical Care Improvement Project (formerly referred to as ‘‘Surgical In- fection Prevention’’ for discharges oc- curring before July 2006). (ee) Healthcare-associated infections, as measured by the prevention metrics and targets established in the HHS Ac- tion Plan to Prevent Healthcare-Asso- ciated Infections (or any successor plan) of the Department of Health and Human Services. (II) HCAHPS Measures selected under subparagraph (A) shall be related to the Hospital Con- sumer Assessment of Healthcare Pro- viders and Systems survey (HCAHPS). (ii) Inclusion of efficiency measures For value-based incentive payments made with respect to discharges occurring during fiscal year 2014 or a subsequent fis- cal year, the Secretary shall ensure that measures selected under subparagraph (A) Page 3866 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww include efficiency measures, including measures of ‘‘Medicare spending per bene- ficiary’’. Such measures shall be adjusted for factors such as age, sex, race, severity of illness, and other factors that the Sec- retary determines appropriate. (iii) HCAHPS pain questions The Secretary may not include under subparagraph (A) a measure that is based on the questions appearing on the Hospital Consumer Assessment of Healthcare Pro- viders and Systems survey in 2018 or 2019 about communication by hospital staff with an individual about the individual’s pain. (C) Limitations (i) Time requirement for prior reporting and notice The Secretary may not select a measure under subparagraph (A) for use under the Program with respect to a performance pe- riod for a fiscal year (as established under paragraph (4)) unless such measure has been specified under subsection (b)(3)(B)(viii) and included on the Hospital Compare Internet website for at least 1 year prior to the beginning of such per- formance period. (ii) Measure not applicable unless hospital furnishes services appropriate to the measure A measure selected under subparagraph (A) shall not apply to a hospital if such hospital does not furnish services appro- priate to such measure. (D) Replacing measures Subclause (VI) of subsection (b)(3)(B)(viii) shall apply to measures selected under sub- paragraph (A) in the same manner as such subclause applies to measures selected under such subsection. (3) Performance standards (A) Establishment The Secretary shall establish performance standards with respect to measures selected under paragraph (2) for a performance period for a fiscal year (as established under para- graph (4)). (B) Achievement and improvement The performance standards established under subparagraph (A) shall include levels of achievement and improvement. (C) Timing The Secretary shall establish and an- nounce the performance standards under subparagraph (A) not later than 60 days prior to the beginning of the performance period for the fiscal year involved. (D) Considerations in establishing standards In establishing performance standards with respect to measures under this para- graph, the Secretary shall take into account appropriate factors, such as— (i) practical experience with the meas- ures involved, including whether a signifi- cant proportion of hospitals failed to meet the performance standard during previous performance periods; (ii) historical performance standards; (iii) improvement rates; and (iv) the opportunity for continued im- provement. (4) Performance period For purposes of the Program, the Secretary shall establish the performance period for a fiscal year. Such performance period shall begin and end prior to the beginning of such fiscal year. (5) Hospital performance score (A) In general Subject to subparagraph (B), the Secretary shall develop a methodology for assessing the total performance of each hospital based on performance standards with respect to the measures selected under paragraph (2) for a performance period (as established under paragraph (4)). Using such method- ology, the Secretary shall provide for an as- sessment (in this subsection referred to as the ‘‘hospital performance score’’) for each hospital for each performance period. (B) Application (i) Appropriate distribution The Secretary shall ensure that the ap- plication of the methodology developed under subparagraph (A) results in an ap- propriate distribution of value-based in- centive payments under paragraph (6) among hospitals achieving different levels of hospital performance scores, with hos- pitals achieving the highest hospital per- formance scores receiving the largest value-based incentive payments. (ii) Higher of achievement or improvement The methodology developed under sub- paragraph (A) shall provide that the hos- pital performance score is determined using the higher of its achievement or im- provement score for each measure. (iii) Weights The methodology developed under sub- paragraph (A) shall provide for the assign- ment of weights for categories of measures as the Secretary determines appropriate. (iv) No minimum performance standard The Secretary shall not set a minimum performance standard in determining the hospital performance score for any hos- pital. (v) Reflection of measures applicable to the hospital The hospital performance score for a hospital shall reflect the measures that apply to the hospital. (6) Calculation of value-based incentive pay- ments (A) In general In the case of a hospital that the Secretary determines meets (or exceeds) the perform- ance standards under paragraph (3) for the Page 3867 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww performance period for a fiscal year (as es- tablished under paragraph (4)), the Secretary shall increase the base operating DRG pay- ment amount (as defined in paragraph (7)(D)), as determined after application of paragraph (7)(B)(i), for a hospital for each discharge occurring in such fiscal year by the value-based incentive payment amount. (B) Value-based incentive payment amount The value-based incentive payment amount for each discharge of a hospital in a fiscal year shall be equal to the product of— (i) the base operating DRG payment amount (as defined in paragraph (7)(D)) for the discharge for the hospital for such fis- cal year; and (ii) the value-based incentive payment percentage specified under subparagraph (C) for the hospital for such fiscal year. (C) Value-based incentive payment percent- age (i) In general The Secretary shall specify a value- based incentive payment percentage for a hospital for a fiscal year. (ii) Requirements In specifying the value-based incentive payment percentage for each hospital for a fiscal year under clause (i), the Secretary shall ensure that— (I) such percentage is based on the hos- pital performance score of the hospital under paragraph (5); and (II) the total amount of value-based in- centive payments under this paragraph to all hospitals in such fiscal year is equal to the total amount available for value-based incentive payments for such fiscal year under paragraph (7)(A), as es- timated by the Secretary. (7) Funding for value-based incentive pay- ments (A) Amount The total amount available for value-based incentive payments under paragraph (6) for all hospitals for a fiscal year shall be equal to the total amount of reduced payments for all hospitals under subparagraph (B) for such fiscal year, as estimated by the Secretary. (B) Adjustment to payments (i) In general The Secretary shall reduce the base op- erating DRG payment amount (as defined in subparagraph (D)) for a hospital for each discharge in a fiscal year (beginning with fiscal year 2013) by an amount equal to the applicable percent (as defined in subpara- graph (C)) of the base operating DRG pay- ment amount for the discharge for the hos- pital for such fiscal year. The Secretary shall make such reductions for all hos- pitals in the fiscal year involved, regard- less of whether or not the hospital has been determined by the Secretary to have earned a value-based incentive payment under paragraph (6) for such fiscal year. (ii) No effect on other payments Payments described in items (aa) and (bb) of subparagraph (D)(i)(II) for a hos- pital shall be determined as if this sub- section had not been enacted. (C) Applicable percent defined For purposes of subparagraph (B), the term ‘‘applicable percent’’ means— (i) with respect to fiscal year 2013, 1.0 percent; (ii) with respect to fiscal year 2014, 1.25 percent; (iii) with respect to fiscal year 2015, 1.5 percent; (iv) with respect to fiscal year 2016, 1.75 percent; and (v) with respect to fiscal year 2017 and succeeding fiscal years, 2 percent. (D) Base operating DRG payment amount de- fined (i) In general Except as provided in clause (ii), in this subsection, the term ‘‘base operating DRG payment amount’’ means, with respect to a hospital for a fiscal year— (I) the payment amount that would otherwise be made under subsection (d) (determined without regard to sub- section (q)) for a discharge if this sub- section did not apply; reduced by (II) any portion of such payment amount that is attributable to— (aa) payments under paragraphs (5)(A), (5)(B), (5)(F), and (12) of sub- section (d); and (bb) such other payments under sub- section (d) determined appropriate by the Secretary. (ii) Special rules for certain hospitals (I) Sole community hospitals and medi- care-dependent, small rural hospitals In the case of a medicare-dependent, small rural hospital (with respect to dis- charges occurring during fiscal year 2012 and 2013) or a sole community hospital, in applying subparagraph (A)(i), the pay- ment amount that would otherwise be made under subsection (d) shall be deter- mined without regard to subparagraphs (I) and (L) of subsection (b)(3) and sub- paragraphs (D) and (G) of subsection (d)(5). (II) Hospitals paid under section 1395f In the case of a hospital that is paid under section 1395f(b)(3) of this title, the term ‘‘base operating DRG payment amount’’ means the payment amount under such section. (8) Announcement of net result of adjustments Under the Program, the Secretary shall, not later than 60 days prior to the fiscal year in- volved, inform each hospital of the adjust- ments to payments to the hospital for dis- charges occurring in such fiscal year under paragraphs (6) and (7)(B)(i). (9) No effect in subsequent fiscal years The value-based incentive payment under paragraph (6) and the payment reduction under paragraph (7)(B)(i) shall each apply only Page 3868 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww with respect to the fiscal year involved, and the Secretary shall not take into account such value-based incentive payment or payment re- duction in making payments to a hospital under this section in a subsequent fiscal year. (10) Public reporting (A) Hospital specific information (i) In general The Secretary shall make information available to the public regarding the per- formance of individual hospitals under the Program, including— (I) the performance of the hospital with respect to each measure that ap- plies to the hospital; (II) the performance of the hospital with respect to each condition or proce- dure; and (III) the hospital performance score as- sessing the total performance of the hos- pital. (ii) Opportunity to review and submit cor- rections The Secretary shall ensure that a hos- pital has the opportunity to review, and submit corrections for, the information to be made public with respect to the hos- pital under clause (i) prior to such infor- mation being made public. (iii) Website Such information shall be posted on the Hospital Compare Internet website in an easily understandable format. (B) Aggregate information The Secretary shall periodically post on the Hospital Compare Internet website ag- gregate information on the Program, includ- ing— (i) the number of hospitals receiving value-based incentive payments under paragraph (6) and the range and total amount of such value-based incentive pay- ments; and (ii) the number of hospitals receiving less than the maximum value-based incen- tive payment available to the hospital for the fiscal year involved and the range and amount of such payments. (11) Implementation (A) Appeals The Secretary shall establish a process by which hospitals may appeal the calculation of a hospital’s performance assessment with respect to the performance standards estab- lished under paragraph (3)(A) and the hos- pital performance score under paragraph (5). The Secretary shall ensure that such process provides for resolution of such appeals in a timely manner. (B) Limitation on review Except as provided in subparagraph (A), there shall be no administrative or judicial review under section 1395ff of this title, sec- tion 1395oo of this title, or otherwise of the following: (i) The methodology used to determine the amount of the value-based incentive payment under paragraph (6) and the de- termination of such amount. (ii) The determination of the amount of funding available for such value-based in- centive payments under paragraph (7)(A) and the payment reduction under para- graph (7)(B)(i). (iii) The establishment of the perform- ance standards under paragraph (3) and the performance period under paragraph (4). (iv) The measures specified under sub- section (b)(3)(B)(viii) and the measures se- lected under paragraph (2). (v) The methodology developed under paragraph (5) that is used to calculate hos- pital performance scores and the calcula- tion of such scores. (vi) The validation methodology speci- fied in subsection (b)(3)(B)(viii)(XI). (C) Consultation with small hospitals The Secretary shall consult with small rural and urban hospitals on the application of the Program to such hospitals. (12) Promulgation of regulations The Secretary shall promulgate regulations to carry out the Program, including the selec- tion of measures under paragraph (2), the methodology developed under paragraph (5) that is used to calculate hospital performance scores, and the methodology used to deter- mine the amount of value-based incentive pay- ments under paragraph (6). (p) Adjustment to hospital payments for hospital acquired conditions (1) In general In order to provide an incentive for applica- ble hospitals to reduce hospital acquired con- ditions under this subchapter, with respect to discharges from an applicable hospital occur- ring during fiscal year 2015 or a subsequent fis- cal year, the amount of payment under this section or section 1395f(b)(3) of this title, as applicable, for such discharges during the fis- cal year shall be equal to 99 percent of the amount of payment that would otherwise apply to such discharges under this section or section 1395f(b)(3) of this title (determined after the application of subsections (o) and (q) and section 1395f(l)(4) of this title but without regard to this subsection). (2) Applicable hospitals (A) In general For purposes of this subsection, the term ‘‘applicable hospital’’ means a subsection (d) hospital that meets the criteria described in subparagraph (B). (B) Criteria described (i) In general The criteria described in this subpara- graph, with respect to a subsection (d) hos- pital, is that the subsection (d) hospital is in the top quartile of all subsection (d) hospitals, relative to the national average, of hospital acquired conditions during the applicable period, as determined by the Secretary. Page 3869 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (ii) Risk adjustment In carrying out clause (i), the Secretary shall establish and apply an appropriate risk adjustment methodology. (C) Exemption In the case of a hospital that is paid under section 1395f(b)(3) of this title, the Secretary may exempt such hospital from the applica- tion of this subsection if the State which is paid under such section submits an annual report to the Secretary describing how a similar program in the State for a partici- pating hospital or hospitals achieves or sur- passes the measured results in terms of pa- tient health outcomes and cost savings es- tablished under this subsection. (3) Hospital acquired conditions For purposes of this subsection, the term ‘‘hospital acquired condition’’ means a condi- tion identified for purposes of subsection (d)(4)(D)(iv) and any other condition deter- mined appropriate by the Secretary that an individual acquires during a stay in an appli- cable hospital, as determined by the Sec- retary. (4) Applicable period In this subsection, the term ‘‘applicable pe- riod’’ means, with respect to a fiscal year, a period specified by the Secretary. (5) Reporting to hospitals Prior to fiscal year 2015 and each subsequent fiscal year, the Secretary shall provide con- fidential reports to applicable hospitals with respect to hospital acquired conditions of the applicable hospital during the applicable pe- riod. (6) Reporting hospital specific information (A) In general The Secretary shall make information available to the public regarding hospital ac- quired conditions of each applicable hos- pital. (B) Opportunity to review and submit correc- tions The Secretary shall ensure that an appli- cable hospital has the opportunity to review, and submit corrections for, the information to be made public with respect to the hos- pital under subparagraph (A) prior to such information being made public. (C) Website Such information shall be posted on the Hospital Compare Internet website in an easily understandable format. (7) Limitations on review There shall be no administrative or judicial review under section 1395ff of this title, sec- tion 1395oo of this title, or otherwise of the fol- lowing: (A) The criteria described in paragraph (2)(A). (B) The specification of hospital acquired conditions under paragraph (3). (C) The specification of the applicable pe- riod under paragraph (4). (D) The provision of reports to applicable hospitals under paragraph (5) and the infor- mation made available to the public under paragraph (6). (q) Hospital readmissions reduction program (1) In general With respect to payment for discharges from an applicable hospital (as defined in paragraph (5)(C)) occurring during a fiscal year beginning on or after October 1, 2012, in order to account for excess readmissions in the hospital, the Secretary shall make payments (in addition to the payments described in paragraph (2)(A)(ii)) for such a discharge to such hospital under subsection (d) (or section 1395f(b)(3) of this title, as the case may be) in an amount equal to the product of— (A) the base operating DRG payment amount (as defined in paragraph (2)) for the discharge; and (B) the adjustment factor (described in paragraph (3)(A)) for the hospital for the fis- cal year. (2) Base operating DRG payment amount de- fined (A) In general Except as provided in subparagraph (B), in this subsection, the term ‘‘base operating DRG payment amount’’ means, with respect to a hospital for a fiscal year— (i) the payment amount that would oth- erwise be made under subsection (d) (deter- mined without regard to subsection (o)) for a discharge if this subsection did not apply; reduced by (ii) any portion of such payment amount that is attributable to payments under paragraphs (5)(A), (5)(B), (5)(F), and (12) of subsection (d). (B) Special rules for certain hospitals (i) Sole community hospitals and medicare- dependent, small rural hospitals In the case of a medicare-dependent, small rural hospital (with respect to dis- charges occurring during fiscal years 2012 and 2013) or a sole community hospital, in applying subparagraph (A)(i), the payment amount that would otherwise be made under subsection (d) shall be determined without regard to subparagraphs (I) and (L) of subsection (b)(3) and subparagraphs (D) and (G) of subsection (d)(5). (ii) Hospitals paid under section 1395f of this title In the case of a hospital that is paid under section 1395f(b)(3) of this title, the Secretary may exempt such hospitals pro- vided that States paid under such section submit an annual report to the Secretary describing how a similar program in the State for a participating hospital or hos- pitals achieves or surpasses the measured results in terms of patient health out- comes and cost savings established herein with respect to this section. (3) Adjustment factor (A) In general For purposes of paragraph (1), subject to subparagraph (D), the adjustment factor Page 3870 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww under this paragraph for an applicable hos- pital for a fiscal year is equal to the greater of— (i) the ratio described in subparagraph (B) for the hospital for the applicable pe- riod (as defined in paragraph (5)(D)) for such fiscal year; or (ii) the floor adjustment factor specified in subparagraph (C). (B) Ratio The ratio described in this subparagraph for a hospital for an applicable period is equal to 1 minus the ratio of— (i) the aggregate payments for excess re- admissions (as defined in paragraph (4)(A)) with respect to an applicable hospital for the applicable period; and (ii) the aggregate payments for all dis- charges (as defined in paragraph (4)(B)) with respect to such applicable hospital for such applicable period. (C) Floor adjustment factor For purposes of subparagraph (A), the floor adjustment factor specified in this subpara- graph for— (i) fiscal year 2013 is 0.99; (ii) fiscal year 2014 is 0.98; or (iii) fiscal year 2015 and subsequent fiscal years is 0.97. (D) Transitional adjustment for dual eligibles (i) In general In determining a hospital’s adjustment factor under this paragraph for purposes of making payments for discharges occurring during and after fiscal year 2019, and be- fore the application of clause (i) of sub- paragraph (E), the Secretary shall assign hospitals to groups (as defined by the Sec- retary under clause (ii)) and apply the ap- plicable provisions of this subsection using a methodology in a manner that allows for separate comparison of hospitals within each such group, as determined by the Sec- retary. (ii) Defining groups For purposes of this subparagraph, the Secretary shall define groups of hospitals, based on their overall proportion, of the inpatients who are entitled to, or enrolled for, benefits under part A, and who are full-benefit dual eligible individuals (as de- fined in section 1396u–5(c)(6) of this title). In defining groups, the Secretary shall consult the Medicare Payment Advisory Commission and may consider the analysis done by such Commission in preparing the portion of its report submitted to Congress in June 2013 relating to readmissions. (iii) Minimizing reporting burden on hos- pitals In carrying out this subparagraph, the Secretary shall not impose any additional reporting requirements on hospitals. (iv) Budget neutral design methodology The Secretary shall design the method- ology to implement this subparagraph so that the estimated total amount of reduc- tions in payments under this subsection equals the estimated total amount of re- ductions in payments that would other- wise occur under this subsection if this subparagraph did not apply. (E) Changes in risk adjustment (i) Consideration of recommendations in IMPACT reports The Secretary may take into account the studies conducted and the rec- ommendations made by the Secretary under section 2(d)(1) of the IMPACT Act of 2014 (Public Law 113–185; 42 U.S.C. 1395lll note) with respect to the application under this subsection of risk adjustment meth- odologies. Nothing in this clause shall be construed as precluding consideration of the use of groupings of hospitals. (ii) Consideration of exclusion of patient cases based on V or other appropriate codes In promulgating regulations to carry out this subsection with respect to discharges occurring after fiscal year 2018, the Sec- retary may consider the use of V or other ICD-related codes for removal of a read- mission. The Secretary may consider modifying measures under this subsection to incorporate V or other ICD-related codes at the same time as other changes are being made under this subparagraph. (iii) Removal of certain readmissions In promulgating regulations to carry out this subsection, with respect to discharges occurring after fiscal year 2018, the Sec- retary may consider removal as a readmis- sion of an admission that is classified within one or more of the following: trans- plants, end-stage renal disease, burns, trauma, psychosis, or substance abuse. The Secretary may consider modifying meas- ures under this subsection to remove re- admissions at the same time as other changes are being made under this sub- paragraph. (4) Aggregate payments, excess readmission ratio defined For purposes of this subsection: (A) Aggregate payments for excess readmis- sions The term ‘‘aggregate payments for excess readmissions’’ means, for a hospital for an applicable period, the sum, for applicable conditions (as defined in paragraph (5)(A)), of the product, for each applicable condition, of— (i) the base operating DRG payment amount for such hospital for such applica- ble period for such condition; (ii) the number of admissions for such condition for such hospital for such appli- cable period; and (iii) the excess readmissions ratio (as de- fined in subparagraph (C)) for such hos- pital for such applicable period minus 1. (B) Aggregate payments for all discharges The term ‘‘aggregate payments for all dis- charges’’ means, for a hospital for an appli- Page 3871 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww cable period, the sum of the base operating DRG payment amounts for all discharges for all conditions from such hospital for such applicable period. (C) Excess readmission ratio (i) In general Subject to clause (ii), the term ‘‘excess readmissions ratio’’ means, with respect to an applicable condition for a hospital for an applicable period, the ratio (but not less than 1.0) of— (I) the risk adjusted readmissions based on actual readmissions, as deter- mined consistent with a readmission measure methodology that has been en- dorsed under paragraph (5)(A)(ii)(I), for an applicable hospital for such condition with respect to such applicable period; to (II) the risk adjusted expected readmis- sions (as determined consistent with such a methodology) for such hospital for such condition with respect to such applicable period. (ii) Exclusion of certain readmissions For purposes of clause (i), with respect to a hospital, excess readmissions shall not include readmissions for an applicable con- dition for which there are fewer than a minimum number (as determined by the Secretary) of discharges for such applica- ble condition for the applicable period and such hospital. (5) Definitions For purposes of this subsection: (A) Applicable condition The term ‘‘applicable condition’’ means, subject to subparagraph (B), a condition or procedure selected by the Secretary among conditions and procedures for which— (i) readmissions (as defined in subpara- graph (E)) that represent conditions or procedures that are high volume or high expenditures under this subchapter (or other criteria specified by the Secretary); and (ii) measures of such readmissions— (I) have been endorsed by the entity with a contract under section 1395aaa(a) of this title; and (II) such endorsed measures have ex- clusions for readmissions that are unre- lated to the prior discharge (such as a planned readmission or transfer to an- other applicable hospital). (B) Expansion of applicable conditions Beginning with fiscal year 2015, the Sec- retary shall, to the extent practicable, ex- pand the applicable conditions beyond the 3 conditions for which measures have been en- dorsed as described in subparagraph (A)(ii)(I) as of March 23, 2010, to the additional 4 con- ditions that have been identified by the Medicare Payment Advisory Commission in its report to Congress in June 2007 and to other conditions and procedures as deter- mined appropriate by the Secretary. In ex- panding such applicable conditions, the Sec- retary shall seek the endorsement described in subparagraph (A)(ii)(I) but may apply such measures without such an endorsement in the case of a specified area or medical topic determined appropriate by the Sec- retary for which a feasible and practical measure has not been endorsed by the entity with a contract under section 1395aaa(a) of this title as long as due consideration is given to measures that have been endorsed or adopted by a consensus organization iden- tified by the Secretary. (C) Applicable hospital The term ‘‘applicable hospital’’ means a subsection (d) hospital or a hospital that is paid under section 1395f(b)(3) of this title, as the case may be. (D) Applicable period The term ‘‘applicable period’’ means, with respect to a fiscal year, such period as the Secretary shall specify. (E) Readmission The term ‘‘readmission’’ means, in the case of an individual who is discharged from an applicable hospital, the admission of the individual to the same or another applicable hospital within a time period specified by the Secretary from the date of such dis- charge. Insofar as the discharge relates to an applicable condition for which there is an endorsed measure described in subparagraph (A)(ii)(I), such time period (such as 30 days) shall be consistent with the time period specified for such measure. (6) Reporting hospital specific information (A) In general The Secretary shall make information available to the public regarding readmis- sion rates of each subsection (d) hospital under the program. (B) Opportunity to review and submit correc- tions The Secretary shall ensure that a sub- section (d) hospital has the opportunity to review, and submit corrections for, the in- formation to be made public with respect to the hospital under subparagraph (A) prior to such information being made public. (C) Website Such information shall be posted on the Hospital Compare Internet website in an easily understandable format. (7) Limitations on review There shall be no administrative or judicial review under section 1395ff of this title, sec- tion 1395oo of this title, or otherwise of the fol- lowing: (A) The determination of base operating DRG payment amounts. (B) The methodology for determining the adjustment factor under paragraph (3), in- cluding excess readmissions ratio under paragraph (4)(C), aggregate payments for ex- cess readmissions under paragraph (4)(A), and aggregate payments for all discharges under paragraph (4)(B), and applicable peri- Page 3872 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ods and applicable conditions under para- graph (5). (C) The measures of readmissions as de- scribed in paragraph (5)(A)(ii). (8) Readmission rates for all patients (A) Calculation of readmission The Secretary shall calculate readmission rates for all patients (as defined in subpara- graph (D)) for a specified hospital (as defined in subparagraph (D)(ii)) for an applicable condition (as defined in paragraph (5)(B)) and other conditions deemed appropriate by the Secretary for an applicable period (as de- fined in paragraph (5)(D)) in the same man- ner as used to calculate such readmission rates for hospitals with respect to this sub- chapter and posted on the CMS Hospital Compare website. (B) Posting of hospital specific all patient re- admission rates The Secretary shall make information on all patient readmission rates calculated under subparagraph (A) available on the CMS Hospital Compare website in a form and manner determined appropriate by the Secretary. The Secretary may also make other information determined appropriate by the Secretary available on such website. (C) Hospital submission of all patient data (i) Except as provided for in clause (ii), each specified hospital (as defined in sub- paragraph (D)(ii)) shall submit to the Sec- retary, in a form, manner and time speci- fied by the Secretary, data and informa- tion determined necessary by the Sec- retary for the Secretary to calculate the all patient readmission rates described in subparagraph (A). (ii) Instead of a specified hospital sub- mitting to the Secretary the data and in- formation described in clause (i), such data and information may be submitted to the Secretary, on behalf of such a specified hospital, by a state or an entity deter- mined appropriate by the Secretary. (D) Definitions For purposes of this paragraph: (i) The term ‘‘all patients’’ means pa- tients who are treated on an inpatient basis and discharged from a specified hos- pital (as defined in clause (ii)). (ii) The term ‘‘specified hospital’’ means a subsection (d) hospital, hospitals de- scribed in clauses (i) through (v) of sub- section (d)(1)(B) and, as determined fea- sible and appropriate by the Secretary, other hospitals not otherwise described in this subparagraph. (r) Adjustments to medicare DSH payments (1) Empirically justified DSH payments For fiscal year 2014 and each subsequent fis- cal year, instead of the amount of dispropor- tionate share hospital payment that would otherwise be made under subsection (d)(5)(F) to a subsection (d) hospital for the fiscal year, the Secretary shall pay to the subsection (d) hospital 25 percent of such amount (which rep- resents the empirically justified amount for such payment, as determined by the Medicare Payment Advisory Commission in its March 2007 Report to the Congress). (2) Additional payment In addition to the payment made to a sub- section (d) hospital under paragraph (1), for fiscal year 2014 and each subsequent fiscal year, the Secretary shall pay to such sub- section (d) hospitals an additional amount equal to the product of the following factors: (A) Factor one A factor equal to the difference between— (i) the aggregate amount of payments that would be made to subsection (d) hos- pitals under subsection (d)(5)(F) if this subsection did not apply for such fiscal year (as estimated by the Secretary); and (ii) the aggregate amount of payments that are made to subsection (d) hospitals under paragraph (1) for such fiscal year (as so estimated). (B) Factor two (i) Fiscal years 2014, 2015, 2016, and 2017 For each of fiscal years 2014, 2015, 2016, and 2017, a factor equal to 1 minus the per- cent change in the percent of individuals under the age of 65 who are uninsured, as determined by comparing the percent of such individuals— (I) who are uninsured in 2013, the last year before coverage expansion under the Patient Protection and Affordable Care Act (as calculated by the Secretary based on the most recent estimates available from the Director of the Con- gressional Budget Office before a vote in either House on the Health Care and Education Reconciliation Act of 2010 that, if determined in the affirmative, would clear such Act for enrollment); and (II) who are uninsured in the most re- cent period for which data is available (as so calculated), minus 0.1 percentage points for fiscal year 2014 and minus 0.2 percentage points for each of fiscal years 2015, 2016, and 2017. (ii) 2018 and subsequent years For fiscal year 2018 and each subsequent fiscal year, a factor equal to 1 minus the percent change in the percent of individ- uals who are uninsured, as determined by comparing the percent of individuals— (I) who are uninsured in 2013 (as esti- mated by the Secretary, based on data from the Census Bureau or other sources the Secretary determines appropriate, and certified by the Chief Actuary of the Centers for Medicare & Medicaid Serv- ices); and (II) who are uninsured in the most re- cent period for which data is available (as so estimated and certified), minus 0.2 percentage points for each of fis- cal years 2018 and 2019. Page 3873 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (C) Factor three A factor equal to the percent, for each sub- section (d) hospital, that represents the quotient of— (i) the amount of uncompensated care for such hospital for a period selected by the Secretary (as estimated by the Sec- retary, based on appropriate data (includ- ing, in the case where the Secretary deter- mines that alternative data is available which is a better proxy for the costs of subsection (d) hospitals for treating the uninsured, the use of such alternative data)); and (ii) the aggregate amount of uncompen- sated care for all subsection (d) hospitals that receive a payment under this sub- section for such period (as so estimated, based on such data). (3) Limitations on review There shall be no administrative or judicial review under section 1395ff of this title, sec- tion 1395oo of this title, or otherwise of the fol- lowing: (A) Any estimate of the Secretary for pur- poses of determining the factors described in paragraph (2). (B) Any period selected by the Secretary for such purposes. (s) Prospective payment for psychiatric hospitals (1) Reference to establishment and implemen- tation of system For provisions related to the establishment and implementation of a prospective payment system for payments under this subchapter for inpatient hospital services furnished by psy- chiatric hospitals (as described in clause (i) of subsection (d)(1)(B)) and psychiatric units (as described in the matter following clause (v) of such subsection), see section 124 of the Medi- care, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999. (2) Implementation for rate year beginning in 2010 and subsequent rate years (A) In general In implementing the system described in paragraph (1) for the rate year beginning in 2010 and any subsequent rate year, any up- date to a base rate for days during the rate year for a psychiatric hospital or unit, re- spectively, shall be reduced— (i) for the rate year beginning in 2012 and each subsequent rate year, by the produc- tivity adjustment described in subsection (b)(3)(B)(xi)(II); and (ii) for each of the rate years beginning in 2010 through 2019, by the other adjust- ment described in paragraph (3). (B) Special rule The application of this paragraph may re- sult in such update being less than 0.0 for a rate year, and may result in payment rates under the system described in paragraph (1) for a rate year being less than such payment rates for the preceding rate year. (3) Other adjustment For purposes of paragraph (2)(A)(ii), the other adjustment described in this paragraph is— (A) for each of the rate years beginning in 2010 and 2011, 0.25 percentage point; (B) for each of the rate years beginning in 2012 and 2013, 0.1 percentage point; (C) for the rate year beginning in 2014, 0.3 percentage point; (D) for each of the rate years beginning in 2015 and 2016, 0.2 percentage point; and (E) for each of the rate years beginning in 2017, 2018, and 2019, 0.75 percentage point. (4) Quality reporting (A) Reduction in update for failure to report (i) In general Under the system described in paragraph (1), for rate year 2014 and each subsequent rate year, in the case of a psychiatric hos- pital or psychiatric unit that does not sub- mit data to the Secretary in accordance with subparagraphs (C) and (E) with re- spect to such a rate year, any annual up- date to a standard Federal rate for dis- charges for the hospital during the rate year, and after application of paragraph (2), shall be reduced by 2 percentage points. (ii) Special rule The application of this subparagraph may result in such annual update being less than 0.0 for a rate year, and may re- sult in payment rates under the system de- scribed in paragraph (1) for a rate year being less than such payment rates for the preceding rate year. (B) Noncumulative application Any reduction under subparagraph (A) shall apply only with respect to the rate year involved and the Secretary shall not take into account such reduction in com- puting the payment amount under the sys- tem described in paragraph (1) for a subse- quent rate year. (C) Submission of quality data For rate year 2014 and each subsequent rate year, each psychiatric hospital and psy- chiatric unit shall submit to the Secretary data on quality measures specified under subparagraph (D). Such data shall be sub- mitted in a form and manner, and at a time, specified by the Secretary for purposes of this subparagraph. (D) Quality measures (i) In general Subject to clause (ii), any measure speci- fied by the Secretary under this subpara- graph must have been endorsed by the en- tity with a contract under section 1395aaa(a) of this title. (ii) Exception In the case of a specified area or medical topic determined appropriate by the Sec- retary for which a feasible and practical measure has not been endorsed by the enti- ty with a contract under section 1395aaa(a) of this title, the Secretary may specify a measure that is not so endorsed as long as due consideration is given to measures Page 3874 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww that have been endorsed or adopted by a consensus organization identified by the Secretary. (iii) Time frame Not later than October 1, 2012, the Sec- retary shall publish the measures selected under this subparagraph that will be appli- cable with respect to rate year 2014. (iv) Patients’ perspective on care Not later than for rate year 2031, the quality measures specified under this subparagraph shall include a quality measure of patients’ perspective on care. (E) Standardized patient assessment data (i) In general For rate year 2028 and each subsequent rate year, in addition to such data on the quality measures described in subpara- graph (C), each psychiatric hospital and psychiatric unit shall submit to the Sec- retary, through the use of a standardized assessment instrument implemented under clause (iii), the standardized patient as- sessment data described in clause (ii). Such data shall be submitted with respect to admission and discharge of an indi- vidual (and may be submitted more fre- quently as the Secretary determines ap- propriate). (ii) Standardized patient assessment data described For purposes of clause (i), the standard- ized patient assessment data described in this clause, with respect to a psychiatric hospital or psychiatric unit, is data with respect to the following categories: (I) Functional status, such as mobility and self-care at admission to a psy- chiatric hospital or unit and before dis- charge from a psychiatric hospital or unit. (II) Cognitive function, such as ability to express ideas and to understand, and mental status, such as depression and de- mentia. (III) Special services, treatments, and interventions for psychiatric conditions. (IV) Medical conditions and co- morbidities, such as diabetes, congestive heart failure, and pressure ulcers. (V) Impairments, such as incontinence and an impaired ability to hear, see, or swallow. (VI) Other categories as determined appropriate by the Secretary. (iii) Standardized assessment instrument (I) In general For purposes of clause (i), the Sec- retary shall implement a standardized assessment instrument that provides for the submission of standardized patient assessment data under this subchapter with respect to psychiatric hospitals and psychiatric units which enables compari- son of such assessment data across all such hospitals and units to which such data are applicable. (II) Funding The Secretary shall provide for the transfer, from the Federal Hospital In- surance Trust Fund under section 1395i of this title to the Centers for Medicare & Medicaid Services Program Manage- ment Account, of $10,000,000 for purposes of carrying out subclause (I). (F) Public availability of data submitted The Secretary shall establish procedures for making data submitted under subpara- graphs (C) and (F) available to the public. Such procedures shall ensure that a psy- chiatric hospital and a psychiatric unit has the opportunity to review the data that is to be made public with respect to the hospital or unit prior to such data being made public. The Secretary shall report quality measures, including the quality measure of patients’ perspective on care described in subpara- graph (D)(iv), that relate to services fur- nished in inpatient settings in psychiatric hospitals and psychiatric units on the Inter- net website of the Centers for Medicare & Medicaid Services. (5) Additional data and information (A) In general The Secretary shall collect data and infor- mation as the Secretary determines appro- priate to revise payments under the system described in paragraph (1) for psychiatric hospitals and psychiatric units pursuant to subparagraph (D) and for other purposes as determined appropriate by the Secretary. The Secretary shall begin to collect such data by not later than October 1, 2023. (B) Data and information The data and information to be collected under subparagraph (A) may include— (i) charges, including those related to ancillary services; (ii) the required intensity of behavioral monitoring, such as cognitive deficit, sui- cide ideations, violent behavior, and need for physical restraint; and (iii) interventions, such as detoxification services for substance abuse, dependence on respirator, total parenteral nutritional support, dependence on renal dialysis, and burn care. (C) Method of collection The Secretary may collect the additional data and information under subparagraph (A) on cost reports, on claims, or otherwise. (D) Revisions to payment rates (i) In general Notwithstanding the preceding para- graphs of this subsection or section 124 of the Medicare, Medicaid, and SCHIP Bal- anced Budget Refinement Act of 1999, for rate year 2025 (and for any subsequent rate year, if determined appropriate by the Sec- retary), the Secretary shall, by regulation, implement revisions to the methodology for determining the payment rates under the system described in paragraph (1) for psychiatric hospitals and psychiatric Page 3875 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww units, as the Secretary determines to be appropriate. Such revisions may be based on a review of data and information col- lected under subparagraph (A). (ii) Review The Secretary may make revisions to the diagnosis-related group classifications, in accordance with subsection (d)(4)(C), to reflect nursing and staff resource use and costs involved in furnishing services at such hospitals and units, including consid- erations for patient complexity and prior admission to an inpatient psychiatric fa- cility, which may be based on review of data and information collected under sub- paragraph (A), as the Secretary deter- mines to be appropriate. (iii) Budget neutrality Revisions in payment implemented pur- suant to clause (i) for a rate year shall re- sult in the same estimated amount of ag- gregate expenditures under this sub- chapter for psychiatric hospitals and psy- chiatric units furnished in the rate year as would have been made under this sub- chapter for such care in such rate year if such revisions had not been implemented. (6) Additional considerations for diagnosis-re- lated group classifications (A) In general Notwithstanding the preceding paragraphs of this subsection (other than paragraph (5)) or section 124 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, beginning not later than rate year 2031, in addition to any revisions pursuant to paragraph (5), the Secretary shall, by regula- tion, implement revisions to the method- ology for determining the payment rates under the system described in paragraph (1) for psychiatric hospitals and psychiatric units, as the Secretary determines to be ap- propriate, to take into account the patient assessment data described in paragraph (4)(E)(ii). (B) Budget neutrality Revisions in payment implemented pursu- ant to subparagraph (A) for a rate year shall result in the same estimated amount of ag- gregate expenditures under this subchapter for psychiatric hospitals and psychiatric units furnished in the rate year as would have been made under this subchapter for such care in such rate year if such revisions had not been implemented. (t) Relating similar inpatient and outpatient hos- pital services (1) Development of HCPCS version of MS–DRG codes Not later than January 1, 2018, the Secretary shall develop HCPCS versions for MS–DRGs that are similar to the ICD–10–PCS for such MS–DRGs such that, to the extent possible, the MS–DRG assignment shall be similar for a claim coded with the HCPCS version as an identical claim coded with a ICD–10–PCS code. (2) Coverage of surgical MS–DRGs In carrying out paragraph (1), the Secretary shall develop HCPCS versions of MS–DRG codes for not fewer than 10 surgical MS–DRGs. (3) Publication and dissemination of the HCPCS versions of MS–DRGs (A) In general The Secretary shall develop a HCPCS MS–DRG definitions manual and software that is similar to the definitions manual and software for ICD–10–PCS codes for such MS–DRGs. The Secretary shall post the HCPCS MS–DRG definitions manual and software on the Internet website of the Cen- ters for Medicare & Medicaid Services. The HCPCS MS–DRG definitions manual and software shall be in the public domain and available for use and redistribution without charge. (B) Use of previous analysis done by MedPAC In developing the HCPCS MS–DRG defini- tions manual and software under subpara- graph (A), the Secretary shall consult with the Medicare Payment Advisory Commission and shall consider the analysis done by such Commission in translating outpatient sur- gical claims into inpatient surgical MS–DRGs in preparing chapter 7 (relating to hospital short-stay policy issues) of its ‘‘Medicare and the Health Care Delivery System’’ report submitted to Congress in June 2015. (4) Definition and reference In this subsection: (A) HCPCS The term ‘‘HCPCS’’ means, with respect to hospital items and services, the code under the Healthcare Common Procedure Coding System (HCPCS) (or a successor code) for such items and services. (B) ICD–10–PCS The term ‘‘ICD–10–PCS’’ means the Inter- national Classification of Diseases, 10th Re- vision, Procedure Coding System, and in- cludes any subsequent revision of such Inter- national Classification of Diseases, Proce- dure Coding System. (Aug. 14, 1935, ch. 531, title XVIII, § 1886, as added and amended Pub. L. 97–248, title I, §§ 101(a)(1), 110, Sept. 3, 1982, 96 Stat. 331, 339; Pub. L. 97–448, title III, § 309(b)(13)–(15), Jan. 12, 1983, 96 Stat. 2409; Pub. L. 98–21, title VI, § 601(a)(1), (2), (b), (c), (d)(2), (e), Apr. 20, 1983, 97 Stat. 149, 150, 152; Pub. L. 98–369, div. B, title III, §§ 2307(b)(1), 2310(a), 2311(a)–(c), 2312(a), (b), 2313(a), (b), (d), 2315(a)–(c), 2354(b)(42)–(44), July 18, 1984, 98 Stat. 1073, 1075–1080, 1102; Pub. L. 98–617, § 3(b)(9), Nov. 8, 1984, 98 Stat. 3296; Pub. L. 99–272, title IX, §§ 9101(b), (c), 9102(a)–(c), 9104(a), (b), 9105(a)–(c), 9106(a), 9107(a), 9109(a), 9111(a), 9127(a), 9202(a), Apr. 7, 1986, 100 Stat. 153–155, 157–162, 170, 171; Pub. L. 99–349, title II, § 206, July 2, 1986, 100 Stat. 749; Pub. L. 99–509, title IX, §§ 9302(a)(1), (2), (b)(1), (c), (d)(1)(A), (e), 9303, 9304(a)–(c), 9306(a)–(c), 9307(c)(1), 9314(a), 9320(g), 9321(e)(2), Oct. 21, 1986, 100 Stat. 1982–1985, 1988, 1995, 2005, 2015, 2018; Pub. L. 99–514, § 2, title XVIII, Page 3876 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww § 1895(b)(1)(A)–(C), (2)(A)–(C), (3), (9), Oct. 22, 1986, 100 Stat. 2095, 2931–2933; Pub. L. 100–93, § 8(c)(4), Aug. 18, 1987, 101 Stat. 693; Pub. L. 100–203, title IV, §§ 4002(a)–(f)(1), 4003(a)–(c), 4004(a), 4005(a)(1), (c)(1), (d)(1)(A), 4006(a)–(b)(2), 4007(b)(1), 4009(d)(1), (j)(1)–(6)(B), 4083(b)(1), Dec. 22, 1987, 101 Stat. 1330–42 to 1330–44, 1330–46, 1330–47, 1330–49, 1330–52, 1330–53, 1330–57 to 1330–59, 1330–129, as amended Pub. L. 100–360, title IV, § 411(b)(1)(E), (3), (4)(C)(i), (5)(B), (6)(B), (8)(B), July 1, 1988, 102 Stat. 769, 770, 772; Pub. L. 100–360, title IV, § 411(b)(1)(A)–(D), (F)–(H)(i), (4)(A), (B), (5)(A), July 1, 1988, 102 Stat. 768–770; Pub. L. 100–485, title VI, § 608(d)(18)(A), (B), Oct. 13, 1988, 102 Stat. 2418; Pub. L. 100–647, title I, § 1018(r)(1), title VIII, §§ 8401, 8403(a), Nov. 10, 1988, 102 Stat. 3586, 3798; Pub. L. 101–234, title III, § 301(b)(3), (c)(3), Dec. 13, 1989, 103 Stat. 1985, 1986; Pub. L. 101–239, title VI, §§ 6002, 6003(a)(1), (b)–(c)(3), (e)(1), (2)(B)–(E), (f), (g)(2), (4)–(h)(4), (6), 6004(a)(1), (2), (b)(1), 6011(a), 6015(a), 6022, Dec. 19, 1989, 103 Stat. 2140–2144, 2151, 2154–2157, 2159–2161, 2164, 2167; Pub. L. 101–403, title I, § 115(b)(1), Oct. 1, 1990, 104 Stat. 870; Pub. L. 101–508, title IV, §§ 4001, 4002(a)(1), (b)(1)–(4), (c)(1), (2), (e)(1), (g)(1), (2), (h)(1)(A), (2)(B), 4003(a), 4005(a)(1), (c)(1)(B), (2), 4008(f)(1), (m)(2)(A), Nov. 5, 1990, 104 Stat. 1388–31 to 1388–38, 1388–40, 1388–42, 1388–45, 1388–53; Pub. L. 103–66, title XIII, §§ 13501(a), (b)(1), (c), (e)(1), (f), 13502, 13506, 13563(a), (b)(1), (c)(1), Aug. 10, 1993, 107 Stat. 572, 574, 575, 577, 579, 605; Pub. L. 103–432, title I, §§ 101(a)(1), (b), (c), 102(b)(1)(B), 105, 108–110(a), (c), 153(a), Oct. 31, 1994, 108 Stat. 4400–4402, 4405, 4407, 4408, 4437; Pub. L. 105–33, title IV, §§ 4022(b)(1)(A), 4201(c)(1), (4), 4202(a), 4204(a)(1), (2), 4401(a), 4402, 4403(a), 4405(a)–(c), 4406, 4407, 4411–4415(c), 4416, 4417(a)(1), (b)(1), 4418(a), 4419(a)(1), 4421(a), (b), 4621–4626(a), 4627(a), 4644(a)(1), (b)(1), (c)(1), Aug. 5, 1997, 111 Stat. 354, 373–375, 397, 398, 400, 401, 403–410, 413, 475–480, 483, 488; Pub. L. 106–113, div. B, § 1000(a)(6) [title I, §§ 111(a), (c), 112(a), 121(a), 122, 125(a), title III, §§ 311, 312(a), 321(b), (e), (f), (h), (k)(15)–(17), title IV, §§ 401(a), 402(a), 404(a), (b)(1), 405–407(a)(2), (b)(1), (2), (c)(1), title V, § 541], Nov. 29, 1999, 113 Stat. 1536, 1501A–329 to 1501A–332, 1501A–362 to 150A–366, 1501A–368, 1501A–369, 1501A–372 to 1501A–374, 1501A–391; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 152(a), (b)], § 1(a)(6) [title II, §§ 211, 212(a), 213(a), title III, §§ 301(a), (e)(1), 302(a), (c), (d), 303(a), (c), (d)(1), 304(a), (c)(2), 305(a), (b), 307(a)(1), title V, §§ 511, 512(a), 533(b)(1), (3)], Dec. 21, 2000, 114 Stat. 2763, 2763A–251, 2763A–252, 2763A–483, 2763A–485, 2763A–491 to 2763A–496, 2763A–533, 2763A–548, 2763A–550; Pub. L. 108–173, title IV, §§ 401(a)–(c), 402, 403, 406, 407(a), 422(a), (b)(1), title V, §§ 501(a), (b), 502(a), (b), 503(a)–(d)(1), 504, 505(a), title VII, §§ 711, 736(a)(9), (15), (c)(6), Dec. 8, 2003, 117 Stat. 2262–2265, 2269, 2270, 2284, 2286, 2289–2293, 2340, 2355, 2356; Pub. L. 109–171, title V, §§ 5001(a), (c), 5002(a), 5003(a)(1), (2)(A), (b)–(d), Feb. 8, 2006, 120 Stat. 28, 30–32; Pub. L. 109–432, div. B, title I, §§ 106(c), 109(a)(2), title II, § 205(b)(1), Dec. 20, 2006, 120 Stat. 2983, 2985, 2989; Pub. L. 110–161, div. G, title II, § 225(a), (b)(1), Dec. 26, 2007, 121 Stat. 2189; Pub. L. 110–173, title I, §§ 114(e)(1), 115(a)(1), Dec. 29, 2007, 121 Stat. 2504, 2506; Pub. L. 110–275, title I, § 122, July 15, 2008, 122 Stat. 2514; Pub. L. 111–5, div. B, title IV, § 4102(a)(1), (b)(1), Feb. 17, 2009, 123 Stat. 477, 482; Pub. L. 111–148, title III, §§ 3001(a)(1)–(3), 3004(a), (b), 3008(a), 3025(a), 3124(a), (b)(1), 3125, 3133, 3401(a), (c), (d), (f), title V, §§ 5503(a), (b), 5504(a), (b), 5505(a), (b), 5506(a), (b), (e), title X, §§ 10309, 10314, 10316, 10319(a)–(c), (e), 10322(a), 10324(a), 10335, Mar. 23, 2010, 124 Stat. 353–360, 368, 369, 376, 408, 424, 425, 432, 480–483, 655, 658–663, 942, 944, 946, 948, 949, 952, 959, 974; Pub. L. 111–152, title I, §§ 1104–1105(d), Mar. 30, 2010, 124 Stat. 1047, 1048; Pub. L. 111–192, title I, § 102(a), June 25, 2010, 124 Stat. 1281; Pub. L. 111–309, title II, § 203, Dec. 15, 2010, 124 Stat. 3289; Pub. L. 112–40, title II, § 261(a)(3)(A), Oct. 21, 2011, 125 Stat. 423; Pub. L. 112–240, title VI, §§ 605–606(b)(1), Jan. 2, 2013, 126 Stat. 2349; Pub. L. 113–67, div. B, title I, §§ 1105–1106(b)(1), title II, § 1206(a)(1), (c), Dec. 26, 2013, 127 Stat. 1197, 1200, 1204; Pub. L. 113–93, title I, §§ 105–106(b)(1), 112(a), Apr. 1, 2014, 128 Stat. 1042, 1044; Pub. L. 113–185, § 2(c)(2), (3), Oct. 6, 2014, 128 Stat. 1963, 1964; Pub. L. 114–10, title I, § 106(b)(2)(B), title II, §§ 204–205(b)(1), title IV, § 411(b), (e), Apr. 16, 2015, 129 Stat. 139, 144, 145, 161, 162; Pub. L. 114–113, div. H, title II, § 231, div. O, title VI, §§ 601–602(b)(1), Dec. 18, 2015, 129 Stat. 2626, 3023, 3024; Pub. L. 114–115, § 4(b), Dec. 28, 2015, 129 Stat. 3133; Pub. L. 114–255, div. A, title IV, § 4002(b)(2), div. C, title XV, §§ 15001—15002(b), 15004(b), 15008(a), (b), (d)(2), 15009(a), 15010(a), Dec. 13, 2016, 130 Stat. 1161, 1315—1317, 1319, 1321–1323; Pub. L. 115–123, div. E, title II, §§ 50204(a), 50205(a), (b)(1), title IV, § 50413, title X, § 51005, title XII, § 53109(a), Feb. 9, 2018, 132 Stat. 181–183, 221, 296, 303; Pub. L. 115–141, div. G, title IV, § 429, Mar. 23, 2018, 132 Stat. 693; Pub. L. 115–271, title VI, § 6104, Oct. 24, 2018, 132 Stat. 4006; Pub. L. 116–94, div. N, title I, § 108, Dec. 20, 2019, 133 Stat. 3102; Pub. L. 116–136, div. A, title III, § 3710(a), Mar. 27, 2020, 134 Stat. 422; Pub. L. 116–260, div. CC, title I, §§ 126(a)–(c), 127, 131(a)–(c), Dec. 27, 2020, 134 Stat. 2967–2970, 2974, 2976; Pub. L. 117–2, title IX, § 9831, Mar. 11, 2021, 135 Stat. 221; Pub. L. 117–180, div. D, title I, §§ 101(a), 102(a), (b)(1), Sept. 30, 2022, 136 Stat. 2134, 2135; Pub. L. 117–229, div. C, title I, §§ 101(a), 102(a), (b)(1), Dec. 16, 2022, 136 Stat. 2310; Pub. L. 117–328, div. FF, title IV, §§ 4101(a), 4102(a), (b)(1), 4122, 4125, 4143(a), (b), Dec. 29, 2022, 136 Stat. 5895, 5896, 5903, 5910, 5930; Pub. L. 117–341, § 2(a), Jan. 5, 2023, 136 Stat. 6179; Pub. L. 118–42, div. G, title I, §§ 306(a), 307(a), (b)(1), Mar. 9, 2024, 138 Stat. 416, 417; Pub. L. 118–158, div. C, title II, §§ 3201(a), 3202(a), (b)(1), Dec. 21, 2024, 138 Stat. 1764.) Editorial Notes REFERENCES IN TEXT Section 5001(b) of the Deficit Reduction Act of 2005, referred to in subsec. (b)(3)(B)(viii)(I), is section 5001(b) of Pub. L. 109–171, which is set out below. The Medicare Prescription Drug, Improvement, and Modernization Act of 2003, referred to in subsecs. (b)(3)(B)(viii)(IV) and (d)(2)(C)(i), is Pub. L. 108–173, Dec. 8, 2003, 117 Stat. 2066. Section 238(b) of the Act is set out as a note under section 1395ll of this title. Section 402(a) of the Act, which amended this section, does not con- tain a par. (1). Section 403(a)(1) of the Act amended this section. For complete classification of this Act to the Code, see Short Title of 2003 Amendment note set out under section 1305 of this title and Tables. The Internal Revenue Code of 1986, referred to in sub- sec. (b)(6), is classified generally to Title 26, Internal Revenue Code. Section 222(a) of the Social Security Amendments of 1972, referred to in subsec. (c)(4)(B), is section 222(a) of Page 3877 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Pub. L. 92–603, Oct. 30, 1972, 86 Stat. 1329, which is set out as a note under section 1395b–1 of this title. The effective date of such clause (vi), referred to in concluding provisions of subsec. (d)(1)(B), probably means the date of enactment of Pub. L. 114–255, which redesignated subcl. (II) of cl. (iv) of subsec. (d)(1)(B) as cl. (vi) of subsec. (d)(1)(B), and which was approved Dec. 13, 2016. Section 9104(a) of the Medicare and Medicaid Budget Reconciliation Amendments of 1985, referred to in sub- sec. (d)(2)(C)(i), is section 9104(a) of Pub. L. 99–272, which amended subsec. (d)(5)(B) of this section. Section 4621(a)(1) of the Balanced Budget Act of 1997, referred to in subsec. (d)(2)(C)(i), is section 4621(a)(1) of Pub. L. 105–33, which amended subsec. (d)(5)(B)(ii) of this section. Section 111 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, referred to in subsec. (d)(2)(C)(i), is section 1000(a)(6) [title I, § 111] of Pub. L. 106–113, which amended this section and en- acted provisions set out as a note under this section. Section 302 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, re- ferred to in subsec. (d)(2)(C)(i), is section 1(a)(6) [title III, § 302] of Pub. L. 106–554, which amended this section and enacted provisions set out as a note under this sec- tion. Section 6003(c) of the Omnibus Budget Reconciliation Act of 1989, referred to in subsec. (d)(2)(C)(iv), is section 6003(c) of Pub. L. 101–239, which amended this section and enacted provisions set out below. Section 4002(b) of the Omnibus Budget Reconciliation Act of 1990, referred to in subsec. (d)(2)(C)(iv), is section 4002(b) of Pub. L. 101–508, which amended this section and enacted provisions set out below. Section 303 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, re- ferred to in subsec. (d)(2)(C)(iv), is section 1(a)(6) [title III, § 303] of Pub. L. 106–554, which amended this section and enacted provisions set out as notes under this sec- tion. Section 9104 of the Medicare and Medicaid Budget Reconciliation Amendments of 1985, referred to in sub- sec. (d)(3)(C)(ii), is section 9104 of Pub. L. 99–272, which amended subsec. (d)(2)(C)(i), (3)(C), (D)(i)(I), (ii)(I), and (5)(B) of this section. Section 4003(a)(1) of the Omnibus Budget Reconcili- ation Act of 1987, referred to in subsec. (d)(3)(C)(ii), is section 4003(a)(1) of Pub. L. 100–203, which amended sub- sec. (d)(5)(B)(ii) of this section. The Omnibus Budget Reconciliation Act of 1990, re- ferred to in subsec. (d)(3)(C)(ii), is Pub. L. 101–508, Nov. 5, 1990, 104 Stat. 1388. For complete classification of this Act to the Code, see Tables. The Patient Protection and Affordable Care Act, re- ferred to in subsecs. (d)(3)(E)(i) and (r)(2)(B)(i)(I), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119. Section 10324(a)(1) of the Act amended this section. For com- plete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables. Section 9831(a) of the American Rescue Plan Act of 2021, referred to in subsec. (d)(3)(E)(i), is section 9831(a) of Pub. L. 117–2, which amended subsec. (d)(3)(E)(i), (iv) of this section. Section 9304 of the Omnibus Budget Reconciliation Act of 1986, referred to in subsec. (e)(1)(C)(ii), is section 9304 of Pub. L. 99–509, which enacted subsecs. (d)(9) and (e)(1)(C) of this section and amended subsec. (d)(5)(C)(i)(I), (ii) of this section. Section 4628 of the Balanced Budget Act of 1997, re- ferred to in subsec. (h)(6)(C)(iii), is section 4628 of Pub. L. 105–33, which is set out as a note below. Section 402 of Public Law 90–248, referred to in sub- sec. (h)(7)(B)(vi), (8)(A)(ii)(II), is section 402 of Pub. L. 90–248, title IV, Jan. 2, 1968, 81 Stat. 930, which enacted section 1395b–1 of this title and amended section 1395ll of this title. Such section 332(a)(1)(A), referred to in subsec. (h)(8)(D)(ii)(I), probably means section 332(a)(1)(A) of the Public Health Service Act, which is classified to section 254e(a)(1)(A) of this title. Section 4005(e) of the Omnibus Budget Reconciliation Act of 1987, referred to in subsec. (i), is section 4005(e) of Pub. L. 100–203, which is set out below. Section 123 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, referred to in subsec. (m)(1), is section 1000(a)(6) [title I, § 123] of Pub. L. 106–113, which enacted provisions set out as a note under this section. Section 307(b) of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, re- ferred to in subsec. (m)(1), is section 1(a)(6) [title III, § 307(b)] of Pub. L. 106–554, which enacted provisions set out as a note under this section. The Health Care and Education Reconciliation Act of 2010, referred to in subsec. (r)(2)(B)(i)(I), is Pub. L. 111–152, Mar. 30, 2010, 124 Stat. 1029. For complete classi- fication of this Act to the Code, see Short Title of 2010 Amendment note set out under section 1305 of this title and Tables. Section 124 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, referred to in subsec. (s)(1), (5)(D)(i), (6)(A), is section 1000(a)(6) [title I, § 124] of Pub. L. 106–113, which enacted provisions set out as a note under this section. AMENDMENTS 2024—Subsec. (b)(3)(D). Pub. L. 118–158, § 3202(b)(1)(A), substituted ‘‘April 1, 2025’’ for ‘‘January 1, 2025’’ in in- troductory provisions. Pub. L. 118–42, § 307(b)(1)(A), substituted ‘‘January 1, 2025’’ for ‘‘October 1, 2024’’ in introductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 118–158, § 3202(b)(1)(B), substituted ‘‘March 31, 2025’’ for ‘‘December 31, 2024’’. Pub. L. 118–42, § 307(b)(1)(B), inserted ‘‘and the portion of fiscal year 2025 beginning on October 1, 2024, and end- ing on December 31, 2024,’’ after ‘‘fiscal year 2024’’. Subsec. (d)(5)(G)(i). Pub. L. 118–158, § 3202(a)(1), sub- stituted ‘‘April 1, 2025’’ for ‘‘January 1, 2025’’. Pub. L. 118–42, § 307(a)(1), substituted ‘‘January 1, 2025’’ for ‘‘October 1, 2024’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 118–158, § 3202(a)(2), substituted ‘‘April 1, 2025’’ for ‘‘January 1, 2025’’. Pub. L. 118–42, § 307(a)(2), substituted ‘‘January 1, 2025’’ for ‘‘October 1, 2024’’. Subsec. (d)(12)(B). Pub. L. 118–158, § 3201(a)(1), sub- stituted ‘‘April 1, 2025’’ for ‘‘January 1, 2025’’ in intro- ductory provisions. Pub. L. 118–42, § 306(a)(1), substituted ‘‘during the por- tion of fiscal year 2025 beginning on January 1, 2025, and ending on September 30, 2025, and in fiscal year 2026 and subsequent fiscal years’’ for ‘‘in fiscal year 2025 and subsequent fiscal years’’ in introductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 118–158, § 3201(a)(2)(A), substituted ‘‘March 31, 2025’’ for ‘‘December 31, 2024’’ in introductory provisions. Pub. L. 118–42, § 306(a)(2)(A), inserted ‘‘or portion of a fiscal year’’ after ‘‘for a fiscal year’’ and ‘‘and the por- tion of fiscal year 2025 beginning on October 1, 2024, and ending on December 31, 2024’’ after ‘‘through 2024’’ in introductory provisions. Subsec. (d)(12)(C)(i)(III). Pub. L. 118–158, § 3201(a)(2)(B), substituted ‘‘March 31, 2025’’ for ‘‘December 31, 2024’’. Pub. L. 118–42, § 306(a)(2)(B), inserted ‘‘and the portion of fiscal year 2025 beginning on October 1, 2024, and end- ing on December 31, 2024’’ after ‘‘through 2024’’. Subsec. (d)(12)(C)(i)(IV). Pub. L. 118–158, § 3201(a)(2)(C), substituted ‘‘April 1, 2025’’ for ‘‘January 1, 2025’’. Pub. L. 118–42, § 306(a)(2)(C), substituted ‘‘the portion of fiscal year 2025 beginning on January 1, 2025, and ending on September 30, 2025, and fiscal year 2026’’ for ‘‘fiscal year 2025’’. Subsec. (d)(12)(D). Pub. L. 118–158, § 3201(a)(3)(A), sub- stituted ‘‘March 31, 2025’’ for ‘‘December 31, 2024’’ in in- troductory provisions. Pub. L. 118–42, § 306(a)(3)(A), inserted ‘‘or during the portion of fiscal year 2025 beginning on October 1, 2024, and ending on December 31, 2024’’ after ‘‘through 2024’’ in introductory provisions. Page 3878 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(12)(D)(ii). Pub. L. 118–158, § 3201(a)(3)(B), substituted ‘‘March 31, 2025’’ for ‘‘December 31, 2024’’. Pub. L. 118–42, § 306(a)(3)(B), inserted ‘‘and the portion of fiscal year 2025 beginning on October 1, 2024, and end- ing on December 31, 2024’’ after ‘‘through 2024’’. 2023—Subsec. (j)(7)(E). Pub. L. 117–341 designated ex- isting provisions as cl. (i), inserted heading, and added cls. (ii) to (vii). 2022—Subsec. (b)(3)(D). Pub. L. 117–328, § 4102(b)(1)(A), substituted ‘‘October 1, 2024’’ for ‘‘December 24, 2022’’ in introductory provisions. Pub. L. 117–229, § 102(b)(1)(A), substituted ‘‘December 24, 2022’’ for ‘‘December 17, 2022’’ in introductory provi- sions. Pub. L. 117–180, § 102(b)(1)(A), substituted ‘‘December 17, 2022’’ for ‘‘October 1, 2022’’ in introductory provi- sions. Subsec. (b)(3)(D)(iv). Pub. L. 117–328, § 4102(b)(1)(B), substituted ‘‘fiscal year 2024’’ for ‘‘fiscal year 2022 and the portion of fiscal year 2023 beginning on October 1, 2022, and ending on December 23, 2022,’’. Pub. L. 117–229, § 102(b)(1)(B), substituted ‘‘December 23, 2022’’ for ‘‘December 16, 2022,’’. Pub. L. 117–180, § 102(b)(1)(B), inserted ‘‘and the por- tion of fiscal year 2023 beginning on October 1, 2022, and ending on December 16, 2022,’’ after ‘‘through fiscal year 2022’’. Subsec. (d)(5)(B)(v). Pub. L. 117–328, § 4122(b)(1), sub- stituted ‘‘(h)(9), and (h)(10)’’ for ‘‘and (h)(9)’’. Subsec. (d)(5)(B)(xii). Pub. L. 117–328, § 4122(b)(2), re- aligned margins. Subsec. (d)(5)(B)(xiii). Pub. L. 117–328, § 4122(b)(3), added cl. (xiii). Subsec. (d)(5)(G)(i). Pub. L. 117–328, § 4102(a)(1), sub- stituted ‘‘October 1, 2024’’ for ‘‘December 24, 2022’’. Pub. L. 117–229, § 102(a)(1), substituted ‘‘December 24, 2022’’ for ‘‘December 17, 2022’’. Pub. L. 117–180, § 102(a)(1), substituted ‘‘December 17, 2022’’ for ‘‘October 1, 2022’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 117–328, § 4102(a)(2), substituted ‘‘October 1, 2024’’ for ‘‘December 24, 2022’’. Pub. L. 117–229, § 102(a)(2), substituted ‘‘December 24, 2022’’ for ‘‘December 17, 2022’’. Pub. L. 117–180, § 102(a)(2), substituted ‘‘December 17, 2022’’ for ‘‘October 1, 2022’’. Subsec. (d)(12)(B). Pub. L. 117–328, § 4101(a)(1), sub- stituted ‘‘in fiscal year 2025’’ for ‘‘during the portion of fiscal year 2023 beginning on December 24, 2022, and ending on September 30, 2023, and in fiscal year 2024’’ in introductory provisions. Pub. L. 117–229, § 101(a)(1), substituted ‘‘December 24, 2022’’ for ‘‘December 17, 2022’’ in introductory provi- sions. Pub. L. 117–180, § 101(a)(1), substituted ‘‘during the portion of fiscal year 2023 beginning on December 17, 2022, and ending on September 30, 2023, and in fiscal year 2024 and subsequent fiscal years’’ for ‘‘in fiscal year 2023 and subsequent fiscal years’’ in introductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 117–328, § 4101(a)(2)(A)(ii), which directed the substitution of ‘‘through 2024’’ for ‘‘through 2022 and the portion of fiscal year 2023 begin- ning on October 1, 2022, and ending on December 23, 2022’ ’’ in introductory provisions, was executed by making the substitution for ‘‘through 2022 and the por- tion of fiscal year 2023 beginning on October 1, 2022, and ending on December 23, 2022’’, to reflect the probable intent of Congress. Pub. L. 117–328, § 4101(a)(2)(A)(i), struck out ‘‘or por- tion of a fiscal year’’ after ‘‘for a fiscal year’’ in intro- ductory provisions. Pub. L. 117–229, § 101(a)(2)(A), substituted ‘‘December 23, 2022’’ for ‘‘December 16, 2022’’ in introductory provi- sions. Pub. L. 117–180, § 101(a)(2)(A), inserted ‘‘or portion of a fiscal year’’ after ‘‘for a fiscal year’’ and ‘‘and the por- tion of fiscal year 2023 beginning on October 1, 2022, and ending on December 16, 2022’’ after ‘‘through 2022’’ in introductory provisions. Subsec. (d)(12)(C)(i)(III). Pub. L. 117–328, § 4101(a)(2)(B), which directed the substitution of ‘‘through 2024’’ for ‘‘through 2022 and the portion of fiscal year 2023 begin- ning on October 1, 2022, and ending on December 23, 2022’ ’’, was executed by making the substitution for ‘‘through 2022 and the portion of fiscal year 2023 begin- ning on October 1, 2022, and ending on December 23, 2022’’, to reflect the probable intent of Congress. Pub. L. 117–229, § 101(a)(2)(B), which directed the sub- stitution of ‘‘December 23, 2022’’ for ‘‘December 16, 2022’ ’’, was executed by making the substitution for ‘‘December 16, 2022’’ to reflect the probable intent of Congress. Pub. L. 117–180, § 101(a)(2)(B), inserted ‘‘and the por- tion of fiscal year 2023 beginning on October 1, 2022, and ending on December 16, 2022’’ after ‘‘through 2022’’. Subsec. (d)(12)(C)(i)(IV). Pub. L. 117–328, § 4101(a)(2)(C), substituted ‘‘fiscal year 2025’’ for ‘‘the portion of fiscal year 2023 beginning on December 24, 2022, and ending on September 30, 2023, and fiscal year 2024’’. Pub. L. 117–229, § 101(a)(2)(C), substituted ‘‘December 24, 2022’’ for ‘‘December 17, 2022’’. Pub. L. 117–180, § 101(a)(2)(C), substituted ‘‘the portion of fiscal year 2023 beginning on December 17, 2022, and ending on September 30, 2023, and fiscal year 2024’’ for ‘‘fiscal year 2023’’. Subsec. (d)(12)(D). Pub. L. 117–328, § 4101(a)(3)(A), which directed the substitution of ‘‘through 2024’’ for ‘‘through 2022 or during the portion of fiscal year 2023 beginning on October 1, 2022, and ending on December 23, 2022’ ’’ in introductory provisions, was executed by making the substitution for ‘‘through 2022 or during the portion of fiscal year 2023 beginning on October 1, 2022, and ending on December 23, 2022’’, to reflect the probable intent of Congress. Pub. L. 117–229, § 101(a)(3)(A), which directed the sub- stitution of ‘‘December 23, 2022’’ for ‘‘December 16, 2022’ ’’ in introductory provisions, was executed by making the substitution for ‘‘December 16, 2022’’ to re- flect the probable intent of Congress. Pub. L. 117–180, § 101(a)(3)(A), inserted ‘‘or during the portion of fiscal year 2023 beginning on October 1, 2022, and ending on December 16, 2022’’ after ‘‘through 2022’’ in introductory provisions. Subsec. (d)(12)(D)(ii). Pub. L. 117–328, § 4101(a)(3)(B), which directed the substitution of ‘‘through 2024’’ for ‘‘through 2022 and the portion of fiscal year 2023 begin- ning on October 1, 2022, and ending on December 23, 2022’ ’’, was executed by making the substitution for ‘‘through 2022 and the portion of fiscal year 2023 begin- ning on October 1, 2022, and ending on December 23, 2022’’, to reflect the probable intent of Congress. Pub. L. 117–229, § 101(a)(3)(B), which directed the sub- stitution of ‘‘December 23, 2022’’ for ‘‘December 16, 2022’ ’’, was executed by making the substitution for ‘‘December 16, 2022’’ to reflect the probable intent of Congress. Pub. L. 117–180, § 101(a)(3)(B), inserted ‘‘and the por- tion of fiscal year 2023 beginning on October 1, 2022, and ending on December 16, 2022’’ after ‘‘through 2022’’. Subsec. (h)(3)(D)(iii). Pub. L. 117–328, § 4143(b), in- serted at end ‘‘In applying the preceding sentence for each of 2010 through 2019, the Secretary shall not take into account any increase in the total amount of such additional payment amounts for such nursing and al- lied health education for portions of cost reporting pe- riods occurring in the year pursuant to the application of paragraph (2)(B)(ii) of such subsection.’’ Subsec. (h)(4)(F)(i). Pub. L. 117–328, § 4122(a)(1), sub- stituted ‘‘(9), and (10)’’ for ‘‘and (9)’’. Subsec. (h)(4)(H)(i)(I). Pub. L. 117–328, § 4122(a)(2), sub- stituted ‘‘(9), and (10)’’ for ‘‘and (9)’’. Subsec. (h)(7)(E). Pub. L. 117–328, § 4122(c), inserted ‘‘paragraph (10),’’ after ‘‘paragraph (8),’’. Subsec. (h)(10). Pub. L. 117–328, § 4122(a)(3), added par. (10). Subsec. (l)(2)(B). Pub. L. 117–328, § 4143(a), designated existing provisions as cl. (i), inserted heading, sub- stituted ‘‘Subject to clause (ii), such ratio’’ for ‘‘Such ratio’’, and added cl. (ii). Subsec. (s)(4)(A)(i). Pub. L. 117–328, § 4125(b)(1)(A), sub- stituted ‘‘subparagraphs (C) and (E)’’ for ‘‘subparagraph (C)’’. Page 3879 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (s)(4)(D)(iv). Pub. L. 117–328, § 4125(c)(1), added cl. (iv). Subsec. (s)(4)(E). Pub. L. 117–328, § 4125(b)(1)(C), added subpar. (E). Former subpar. (E) redesignated (F). Subsec. (s)(4)(F). Pub. L. 117–328, § 4125(c)(2), which di- rected amendment of subpar. (E) by inserting ‘‘, including the quality measure of patients’ perspec- tive on care described in subparagraph (D)(iv),’’ after ‘‘shall report quality measures’’, was executed by mak- ing the insertion in subpar. (F) to reflect the probable intent of Congress and intervening amendment by Pub. L. 117–328, § 4125(b)(1)(B). See below. Pub. L. 117–328, § 4125(b)(1)(B), (D), redesignated sub- par. (E) as (F) and substituted ‘‘subparagraphs (C) and (F)’’ for ‘‘subparagraph (C)’’. Subsec. (s)(5). Pub. L. 117–328, § 4125(a), added par. (5). Subsec. (s)(6). Pub. L. 117–328, § 4125(b)(2), added par. (6). 2021—Subsec. (d)(3)(E)(i). Pub. L. 117–2, § 9831(b), sub- stituted ‘‘, the amendments’’ for ‘‘and the amend- ments’’ and inserted ‘‘, and the amendments made by section 9831(a) of the American Rescue Plan Act of 2021’’ after ‘‘the Patient Protection and Affordable Care Act’’. Pub. L. 117–2, § 9831(a)(1), substituted ‘‘, (iii), or (iv)’’ for ‘‘or (iii)’’. Subsec. (d)(3)(E)(iv). Pub. L. 117–2, § 9831(a)(2), added cl. (iv). 2020—Subsec. (d)(4)(C)(iv). Pub. L. 116–136 added cl. (iv). Subsec. (d)(5)(B)(v). Pub. L. 116–260, § 126(b)(1), sub- stituted ‘‘(h)(8), and (h)(9)’’ for ‘‘and (h)(8)’’. Subsec. (d)(5)(B)(viii). Pub. L. 116–260, § 131(c)(1), sub- stituted ‘‘paragraphs (2)(F)(iv) and (4)(H) of subsection (h)’’ for ‘‘subsection (h)(4)(H)’’. Subsec. (d)(5)(B)(x), (xi). Pub. L. 116–260, § 126(b)(2), re- designated cl. (x), relating to determining the hos- pital’s number of full-time equivalent residents, as (xi) and realigned margins. Subsec. (d)(5)(B)(xii). Pub. L. 116–260, § 126(b)(3), added cl. (xii). Subsec. (h)(2)(F). Pub. L. 116–260, § 131(a), designated existing provisions as cl. (i) and added cls. (ii) to (v). Subsec. (h)(4)(F)(i). Pub. L. 116–260, § 126(a)(1), sub- stituted ‘‘paragraphs (7), (8), and (9)’’ for ‘‘paragraphs (7) and (8)’’. Subsec. (h)(4)(H)(i). Pub. L. 116–260, § 131(b), des- ignated existing provisions as subcl. (I) and added subcls. (II) to (V). Pub. L. 116–260, § 126(a)(2), substituted ‘‘paragraphs (7), (8), and (9)’’ for ‘‘paragraphs (7) and (8)’’. Subsec. (h)(4)(H)(iv). Pub. L. 116–260, § 127, substituted ‘‘Training programs in rural areas’’ for ‘‘Nonrural hos- pitals operating training programs in rural areas’’ in heading, designated existing provisions as subcl. (I), in- serted heading, and substituted ‘‘For cost reporting pe- riods beginning before October 1, 2022, in the case of’’ for ‘‘In the case of’’, and added subcl. (II). Substitution in cl. (iv) heading was executed by striking ‘‘hospitals’’ instead of ‘‘hospital’’ as directed, to reflect the prob- able intent of Congress. Subsec. (h)(4)(H)(iv)(I). Pub. L. 116–260, § 131(c)(2)(A), substituted ‘‘a rural area or has’’ for ‘‘an rural area or has’’. Subsec. (h)(7)(E). Pub. L. 116–260, § 131(c)(2)(B), sub- stituted ‘‘under this paragraph, paragraph (8), clause (i), (ii), (iii), or (v) of paragraph (2)(F), or clause (i) or (vi) of paragraph (4)(H).’’ for ‘‘under this this para- graph, paragraph (8), paragraph (9), or paragraph (4)(H)(vi).’’ Pub. L. 116–260, § 126(a)(3), (c), which amended subpar. (E) identically by inserting ‘‘paragraph (9),’’ after ‘‘paragraph (8),’’, was effectively undone by the subse- quent amendment made by Pub. L. 116–260, § 131(c)(2)(B). See above. Subsec. (h)(9). Pub. L. 116–260, § 126(a)(4), added par. (9). 2019—Subsec. (a)(4). Pub. L. 116–94, § 108(1), in intro- ductory provisions, inserted ‘‘for cost reporting periods beginning on or after October 1, 2020, costs related to hematopoietic stem cell acquisition for the purpose of an allogeneic hematopoietic stem cell transplant (as described in subsection (d)(5)(M)),’’ after ‘‘October 1, 1987),’’. Subsec. (d)(4)(C)(iii). Pub. L. 116–94, § 108(2)(A), in- serted ‘‘or payments under paragraph (5)(M) (beginning with fiscal year 2021)’’ after ‘‘fiscal year 1991)’’ and ‘‘or payments under paragraph (5)(M)’’ before period at end. Subsec. (d)(5)(M). Pub. L. 116–94, § 108(2)(B), added sub- par. (M). 2018—Subsec. (b)(3)(B)(viii)(XII). Pub. L. 115–271, § 6104(a), added subcl. (XII). Subsec. (b)(3)(D). Pub. L. 115–123, § 50205(b)(1)(A), sub- stituted ‘‘October 1, 2022’’ for ‘‘October 1, 2017’’ in intro- ductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 115–123, § 50205(b)(1)(B), substituted ‘‘through fiscal year 2022’’ for ‘‘through fis- cal year 2017’’. Subsec. (d)(5)(G)(i). Pub. L. 115–123, § 50205(a)(1), sub- stituted ‘‘October 1, 2022’’ for ‘‘October 1, 2017’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 115–123, § 50205(a)(2), substituted ‘‘October 1, 2022’’ for ‘‘October 1, 2017’’. Subsec. (d)(5)(G)(iv). Pub. L. 115–123, § 50205(a)(4), in- serted concluding provisions. Subsec. (d)(5)(G)(iv)(I). Pub. L. 115–123, § 50205(a)(3), added subcl. (I) and struck out former subcl. (I) which read as follows: ‘‘located in a rural area,’’. Subsec. (d)(5)(J)(ii)(IV), (V). Pub. L. 115–123, § 53109(a)(1), added subcl. (IV) and redesignated former subcl. (IV) as (V). Subsec. (d)(5)(J)(iv). Pub. L. 115–123, § 53109(a)(2)(A), inserted ‘‘The Secretary shall include in the proposed rule published for fiscal year 2019, a description of the effect of clause (ii)(IV).’’ after ‘‘this subparagraph.’’ in introductory provisions. Subsec. (d)(5)(J)(iv)(I). Pub. L. 115–123, § 53109(a)(2)(B), substituted ‘‘(III), and, in the case of proposed and final rules for fiscal year 2019 and subsequent fiscal years, (IV)’’ for ‘‘and (III)’’. Subsec. (d)(12)(B). Pub. L. 115–123, § 50204(a)(1), sub- stituted ‘‘fiscal year 2023’’ for ‘‘fiscal year 2018’’ in in- troductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 115–123, § 50204(a)(2)(A), substituted ‘‘through 2022, 15 road miles) from another subsection (d) hospital and has—’’ for ‘‘through 2017, 15 road miles) from another subsection (d) hospital and has less than 800 discharges (or, with respect to fiscal years 2011 through 2017, 1,600 discharges of individuals entitled to, or enrolled for, benefits under part A) dur- ing the fiscal year or portion of fiscal year.’’ and added subcls. (I) to (IV). Subsec. (d)(12)(C)(ii). Pub. L. 115–123, § 50204(a)(2)(B), substituted ‘‘subparagraphs (B) and (D)’’ for ‘‘subpara- graph (B)’’ and inserted ‘‘(except as provided in clause (i)(II) and subparagraph (D)(i))’’ after ‘‘regardless’’. Subsec. (d)(12)(C)(iii). Pub. L. 115–141 added cl. (iii). Subsec. (d)(12)(D). Pub. L. 115–123, § 50204(a)(3), sub- stituted ‘‘through 2022’’ for ‘‘through 2017’’, ‘‘hos- pitals— ‘‘(i) with respect to each of fiscal years 2011 through 2018, with 200 or fewer’’ for ‘‘hospitals with 200 or fewer’’, and ‘‘fiscal year or portion of fiscal year; and’’ for ‘‘fiscal year.’’, and added cl. (ii). Subsec. (m)(6)(B)(i)(I). Pub. L. 115–123, § 51005(a)(1), substituted ‘‘fiscal years 2016 through 2019’’ for ‘‘fiscal year 2016 or fiscal year 2017’’. Subsec. (m)(6)(B)(i)(II). Pub. L. 115–123, § 51005(a)(2), substituted ‘‘2020’’ for ‘‘2018’’. Subsec. (m)(6)(B)(ii). Pub. L. 115–123, § 51005(b)(1), sub- stituted ‘‘Subject to clause (iv), in this paragraph’’ for ‘‘In this paragraph’’ in introductory provisions. Subsec. (m)(6)(B)(iv). Pub. L. 115–123, § 51005(b)(2), added cl. (iv). Subsec. (n)(3)(A). Pub. L. 115–123, § 50413, struck out ‘‘by requiring more stringent measures of meaningful use selected under this paragraph’’ after ‘‘quality over time’’ in concluding provisions. Subsec. (o)(2)(B)(iii). Pub. L. 115–271, § 6104(b), added cl. (iii). Page 3880 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 2016—Subsec. (b)(3)(B)(ix)(II). Pub. L. 114–255, § 4002(b)(2), inserted after first sentence ‘‘The Secretary shall exempt an eligible hospital from the application of the payment adjustment under subclause (I) with re- spect to a fiscal year, subject to annual renewal, if the Secretary determines that compliance with the re- quirement for being a meaningful EHR user is not pos- sible because the certified EHR technology used by such hospital is decertified under a program kept or recognized pursuant to section 300jj–11(c)(5) of this title.’’ Subsec. (d)(1)(B). Pub. L. 114–255, § 15008(b), in con- cluding provisions, inserted ‘‘(as in effect as of such date)’’ after ‘‘clause (iv)’’ and ‘‘(or, in the case of a hos- pital described in clause (iv)(II), as so in effect, shall be classified under clause (vi) on and after the effective date of such clause (vi) and for cost reporting periods beginning on or after January 1, 2015, shall not be sub- ject to subsection (m) as of the date of such classifica- tion)’’ after ‘‘so classified’’. Subsec. (d)(1)(B)(iv). Pub. L. 114–255, § 15008(a), struck out subcl. (I) designation before ‘‘a hospital’’ and redes- ignated subcl. (II) as cl. (vi). Subsec. (d)(1)(B)(vi). Pub. L. 114–255, § 15008(a)(2), re- designated subcl. (II) of cl. (iv) as cl. (vi). Subsec. (m)(5)(F)(i), (ii). Pub. L. 114–255, § 15008(d)(2), substituted ‘‘(d)(1)(B)(vi)’’ for ‘‘(d)(1)(B)(iv)(II)’’. Subsec. (m)(6)(A)(i). Pub. L. 114–255, § 15010(a)(1), sub- stituted ‘‘(F), and (G)’’ for ‘‘and (F)’’. Pub. L. 114–255, § 15009(a)(1), substituted ‘‘, (E), and (F)’’ for ‘‘and (E)’’. Subsec. (m)(6)(E)(i)(I)(aa). Pub. L. 114–255, § 15010(a)(2), substituted ‘‘the last sentence of subsection (d)(1)(B)’’ for ‘‘the amendment made by section 4417(a) of the Bal- anced Budget Act of 1997 (42 U.S.C. 1395ww note, Public Law 105–33)’’. Subsec. (m)(6)(F). Pub. L. 114–255, § 15009(a)(2), added subpar. (F). Subsec. (m)(6)(G). Pub. L. 114–255, § 15010(a)(3), added subpar. (G). Subsec. (m)(7). Pub. L. 114–255, § 15004(b), added par. (7). Subsec. (q)(3)(A). Pub. L. 114–255, § 15002(a)(1), inserted ‘‘subject to subparagraph (D),’’ after ‘‘purposes of para- graph (1),’’. Subsec. (q)(3)(D), (E). Pub. L. 114–255, § 15002(a)(2), (b), added subpars. (D) and (E). Subsec. (t). Pub. L. 114–255, § 15001, added subsec. (t). 2015—Subsec. (b)(3)(B)(ix)(I). Pub. L. 114–115, § 4(b)(1), which directed substitution of ‘‘(n)(6)’’ for ‘‘(n)(6)(A)’’, was executed by making the substitution for ‘‘(n)(6)(B)’’ to reflect the probable intent of Congress and the intervening amendment by Pub. L. 114–113, § 602(b)(1)(A). See below. Pub. L. 114–113, § 602(b)(1)(A), substituted ‘‘(n)(6)(B)’’ for ‘‘(n)(6)(A)’’. Subsec. (b)(3)(B)(ix)(II). Pub. L. 114–115, § 4(b)(2), in- serted ‘‘(and, with respect to the application of sub- clause (I) for fiscal year 2017, for categories of sub- section (d) hospitals, as established by the Secretary and posted on the Internet website of the Centers for Medicare & Medicaid Services prior to December 15, 2015, an application for which must be submitted to the Secretary by not later than April 1, 2016)’’ after ‘‘case- by-case basis’’. Pub. L. 114–113, § 602(b)(1)(B), substituted ‘‘an eligible hospital’’ for ‘‘a subsection (d) hospital’’. Subsec. (b)(3)(D). Pub. L. 114–10, § 205(b)(1)(A), sub- stituted ‘‘October 1, 2017’’ for ‘‘April 1, 2015’’ in intro- ductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 114–10, § 205(b)(1)(B), sub- stituted ‘‘through fiscal year 2017’’ for ‘‘through fiscal year 2014 and the portion of fiscal year 2015 before April 1, 2015’’. Subsec. (d)(5)(G)(i). Pub. L. 114–10, § 205(a)(1), sub- stituted ‘‘October 1, 2017’’ for ‘‘April 1, 2015’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 114–10, § 205(a)(2), sub- stituted ‘‘October 1, 2017’’ for ‘‘April 1, 2015’’. Subsec. (d)(9)(E)(iv). Pub. L. 114–113, § 601(2)(A), in- serted ‘‘and before January 1, 2016,’’ after ‘‘2004,’’. Subsec. (d)(9)(E)(v). Pub. L. 114–113, § 601(1), (2)(B), (3), added cl. (v). Subsec. (d)(12)(B). Pub. L. 114–10, § 204(1), substituted ‘‘in fiscal year 2018 and subsequent fiscal years’’ for ‘‘in fiscal year 2015 (beginning on April 1, 2015), fiscal year 2016, and subsequent fiscal years’’ in introductory pro- visions. Subsec. (d)(12)(C)(i). Pub. L. 114–10, § 204(2), sub- stituted ‘‘fiscal years 2011 through 2017,’’ for ‘‘fiscal years 2011 through 2014 and fiscal year 2015 (before April 1, 2015),’’ in two places. Subsec. (d)(12)(D). Pub. L. 114–10, § 204(3), substituted ‘‘fiscal years 2011 through 2017,’’ for ‘‘fiscal years 2011 through 2014 and fiscal year 2015 (before April 1, 2015),’’. Subsec. (j)(3)(C)(i). Pub. L. 114–10, § 411(b)(1)(A), sub- stituted ‘‘clauses (ii) and (iii)’’ for ‘‘clause (ii)’’. Subsec. (j)(3)(C)(ii). Pub. L. 114–10, § 411(b)(1)(B), sub- stituted ‘‘Subject to clause (iii), after’’ for ‘‘After’’ in introductory provisions. Subsec. (j)(3)(C)(iii). Pub. L. 114–10, § 411(b)(1)(C), added cl. (iii). Subsec. (j)(7)(A)(i). Pub. L. 114–10, § 411(b)(2), sub- stituted ‘‘subparagraphs (C)(iii) and (D) of paragraph (3)’’ for ‘‘paragraph (3)(D)’’. Subsec. (m)(3)(A). Pub. L. 114–10, § 411(e)(1), sub- stituted ‘‘Subject to subparagraph (C), in imple- menting’’ for ‘‘In implementing’’ in introductory provi- sions. Subsec. (m)(3)(C). Pub. L. 114–10, § 411(e)(2), added sub- par. (C). Subsec. (m)(6)(A)(i). Pub. L. 114–113, § 231(1), sub- stituted ‘‘subparagraphs (C) and (E)’’ for ‘‘subparagraph (C)’’. Subsec. (m)(6)(E). Pub. L. 114–113, § 231(2), added sub- par. (E). Subsec. (n)(3)(A)(ii). Pub. L. 114–10, § 106(b)(2)(B), in- serted before period at end ‘‘, and the hospital dem- onstrates (through a process specified by the Secretary, such as the use of an attestation) that the hospital has not knowingly and willfully taken action (such as to disable functionality) to limit or restrict the compat- ibility or interoperability of the certified EHR tech- nology’’. Subsec. (n)(6)(B). Pub. L. 114–113, § 602(a), substituted ‘‘hospital that is a subsection (d) hospital or a sub- section (d) Puerto Rico hospital’’ for ‘‘subsection (d) hospital’’. 2014—Subsec. (b)(3)(D). Pub. L. 113–93, § 106(b)(1)(A), substituted ‘‘April 1, 2015’’ for ‘‘April 1, 2014’’ in intro- ductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 113–93, § 106(b)(1)(B), sub- stituted ‘‘through fiscal year 2014 and the portion of fis- cal year 2015 before April 1, 2015’’ for ‘‘through fiscal year 2013 and the portion of fiscal year 2014 before April 1, 2014’’. Subsec. (d)(5)(G)(i). Pub. L. 113–93, § 106(a)(1), sub- stituted ‘‘April 1, 2015’’ for ‘‘April 1, 2014’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 113–93, § 106(a)(2), sub- stituted ‘‘April 1, 2015’’ for ‘‘April 1, 2014’’. Subsec. (d)(12)(B). Pub. L. 113–93, § 105(1), substituted ‘‘in fiscal year 2015 (beginning on April 1, 2015), fiscal year 2016, and subsequent fiscal years’’ for ‘‘in the por- tion of fiscal year 2014 beginning on April 1, 2014, fiscal year 2015, and subsequent fiscal years’’ in introductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 113–93, § 105(2), sub- stituted ‘‘fiscal years 2011 through 2014 and fiscal year 2015 (before April 1, 2015),’’ for ‘‘fiscal years 2011, 2012, and 2013, and the portion of fiscal year 2014 before’’ in two places. Subsec. (d)(12)(D). Pub. L. 113–93, § 105(3), substituted ‘‘fiscal years 2011 through 2014 and fiscal year 2015 (be- fore April 1, 2015),’’ for ‘‘fiscal years 2011, 2012, and 2013, and the portion of fiscal year 2014 before April 1, 2014,’’. Subsec. (j)(7)(A)(i). Pub. L. 113–185, § 2(c)(2)(A), sub- stituted ‘‘subparagraphs (C) and (F)’’ for ‘‘subparagraph (C)’’. Subsec. (j)(7)(C). Pub. L. 113–185, § 2(c)(2)(B), sub- stituted ‘‘Subject to subparagraph (G), for fiscal year 2014 and each subsequent fiscal year’’ for ‘‘For fiscal year 2014 and each subsequent rate year’’. Page 3881 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (j)(7)(E). Pub. L. 113–185, § 2(c)(2)(C), inserted ‘‘and subparagraph (F)(i)’’ after ‘‘subparagraph (C)’’. Subsec. (j)(7)(F), (G). Pub. L. 113–185, § 2(c)(2)(D), added subpars. (F) and (G). Subsec. (m)(5)(A)(i). Pub. L. 113–185, § 2(c)(3)(A), sub- stituted ‘‘subparagraphs (C) and (F)’’ for ‘‘subparagraph (C)’’. Subsec. (m)(5)(C). Pub. L. 113–185, § 2(c)(3)(B), sub- stituted ‘‘Subject to subparagraph (G), for rate year’’ for ‘‘For rate year’’. Subsec. (m)(5)(E). Pub. L. 113–185, § 2(c)(3)(C), inserted ‘‘and subparagraph (F)(i)’’ after ‘‘subparagraph (C)’’. Subsec. (m)(5)(F), (G). Pub. L. 113–185, § 2(c)(3)(D), added subpars. (F) and (G). Subsec. (m)(6)(C)(iv). Pub. L. 113–93, § 112(a), sub- stituted ‘‘Medicare fee-for-service discharges’’ for ‘‘dis- charges’’ in subcls. (I) and (II). 2013—Subsec. (b)(3)(D). Pub. L. 113–67, § 1106(b)(1)(A), substituted ‘‘April 1, 2014’’ for ‘‘October 1, 2013’’ in in- troductory provisions. Pub. L. 112–240, § 606(b)(1)(A), substituted ‘‘October 1, 2013’’ for ‘‘October 1, 2012’’ in introductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 113–67, § 1106(b)(1)(B), in- serted ‘‘and the portion of fiscal year 2014 before April 1, 2014’’ after ‘‘through fiscal year 2013’’. Pub. L. 112–240, § 606(b)(1)(B), substituted ‘‘through fiscal year 2013’’ for ‘‘through fiscal year 2012’’. Subsec. (d)(5)(G)(i). Pub. L. 113–67, § 1106(a)(1), sub- stituted ‘‘April 1, 2014’’ for ‘‘October 1, 2013’’. Pub. L. 112–240, § 606(a)(1), substituted ‘‘October 1, 2013’’ for ‘‘October 1, 2012’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 113–67, § 1106(a)(2), sub- stituted ‘‘April 1, 2014’’ for ‘‘October 1, 2013’’. Pub. L. 112–240, § 606(a)(2), substituted ‘‘October 1, 2013’’ for ‘‘October 1, 2012’’. Subsec. (d)(12)(B). Pub. L. 113–67, § 1105(1), substituted ‘‘the portion of fiscal year 2014 beginning on April 1, 2014, fiscal year 2015, and subsequent fiscal years’’ for ‘‘fiscal year 2014 and subsequent fiscal years’’ in intro- ductory provisions. Pub. L. 112–240, § 605(1), substituted ‘‘2014’’ for ‘‘2013’’ in introductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 113–67, § 1105(2), inserted ‘‘and the portion of fiscal year 2014 before’’ after ‘‘and 2013,’’ in two places and ‘‘or portion of fiscal year’’ after ‘‘during the fiscal year’’. Pub. L. 112–240, § 605(2), substituted ‘‘, 2012, and 2013’’ for ‘‘and 2012’’ in two places. Subsec. (d)(12)(D). Pub. L. 113–67, § 1105(3)(B), which directed insertion of ‘‘or the portion of fiscal year’’ after ‘‘in the fiscal year’’, was executed by making the insertion after ‘‘in the fiscal year’’ both places appear- ing to reflect the probable intent of Congress. Pub. L. 113–67, § 1105(3)(A), inserted ‘‘and the portion of fiscal year 2014 before April 1, 2014,’’ after ‘‘and 2013,’’. Pub. L. 112–240, § 605(3), substituted ‘‘, 2012, and 2013’’ for ‘‘and 2012’’. Subsec. (m)(5)(D)(iv). Pub. L. 113–67, § 1206(c), added cl. (iv). Subsec. (m)(6). Pub. L. 113–67, § 1206(a)(1), added par. (6). 2011—Subsec. (f)(2). Pub. L. 112–40 substituted ‘‘qual- ity improvement’’ for ‘‘utilization and quality control peer review’’ in introductory provisions. 2010—Subsec. (a)(4). Pub. L. 111–192, § 102(a)(1), in- serted ‘‘In applying the first sentence of this para- graph, the term ‘other services related to the admis- sion’ includes all services that are not diagnostic serv- ices (other than ambulance and maintenance renal di- alysis services) for which payment may be made under this subchapter that are provided by a hospital (or an entity wholly owned or operated by the hospital) to a patient—’’ after ‘‘hemophilia.’’ and added subpars. (A) and (B). Subsec. (b)(3)(B)(i)(XX). Pub. L. 111–148, § 3401(a)(1), substituted ‘‘clauses (viii), (ix), (xi), and (xii)’’ for ‘‘clause (viii)’’. Subsec. (b)(3)(B)(viii)(I). Pub. L. 111–148, § 3401(a)(2), inserted ‘‘of such applicable percentage increase (deter- mined without regard to clause (ix), (xi), or (xii))’’ after ‘‘one-quarter’’. Subsec. (b)(3)(B)(viii)(II). Pub. L. 111–148, § 3001(a)(2)(A), inserted at end ‘‘The Secretary may re- quire hospitals to submit data on measures that are not used for the determination of value-based incentive payments under subsection (o).’’ Subsec. (b)(3)(B)(viii)(V). Pub. L. 111–148, § 3001(a)(2)(B), substituted ‘‘for fiscal years 2008 through 2012’’ for ‘‘beginning with fiscal year 2008’’. Subsec. (b)(3)(B)(viii)(VII). Pub. L. 111–148, § 3001(a)(2)(C), substituted ‘‘information regarding measures submitted’’ for ‘‘data submitted’’. Subsec. (b)(3)(B)(viii)(VIII) to (XI). Pub. L. 111–148, § 3001(a)(2)(D), added subcls. (VIII) to (XI). Subsec. (b)(3)(B)(ix)(I). Pub. L. 111–148, § 3401(a)(3), in- serted ‘‘(determined without regard to clause (viii), (xi), or (xii))’’ after ‘‘otherwise applicable under clause (i)’’. Subsec. (b)(3)(B)(x). Pub. L. 111–148, § 3001(a)(3), added cl. (x). Subsec. (b)(3)(B)(xi), (xii). Pub. L. 111–148, § 3401(a)(4), added cls. (xi) and (xii). Subsec. (b)(3)(B)(xii)(I). Pub. L. 111–148, § 10319(a)(1), struck out ‘‘and’’ at end. Subsec. (b)(3)(B)(xii)(II). Pub. L. 111–152, § 1105(a)(1)(A), placed subcl. (II), which was directed to be added by Pub. L. 111–148, § 10319(a)(3), after subcl. (I) and struck out ‘‘and’’ at end. See Amendment note below. Pub. L. 111–148, § 10319(a)(3), which directed addition of subcl. (II) ‘‘after subclause (II)’’, could not be exe- cuted. See Amendment note above. Former subcl. (II) redesignated (III). Subsec. (b)(3)(B)(xii)(III). Pub. L. 111–152, § 1105(a)(1)(B), added subcl. (III) and struck out former subcl. (III) which read ‘‘subject to clause (xiii), for each of fiscal years 2014 through 2019, by 0.2 percentage point.’’ Pub. L. 111–148, § 10319(a)(2), (4), redesignated subcl. (II) as (III) and substituted ‘‘2014’’ for ‘‘2012’’. Subsec. (b)(3)(B)(xii)(IV), (V). Pub. L. 111–152, § 1105(a)(1)(B), added subcls. (IV) and (V). Subsec. (b)(3)(B)(xiii). Pub. L. 111–152, § 1105(a)(2), struck out cl. (xiii) which read as follows: ‘‘Clause (xii) shall be applied with respect to any of fiscal years 2014 through 2019 by substituting ‘0.0 percentage points’ for ‘0.2 percentage point’, if for such fiscal year— ‘‘(I) the excess (if any) of— ‘‘(aa) the total percentage of the non-elderly in- sured population for the preceding fiscal year (based on the most recent estimates available from the Director of the Congressional Budget Office be- fore a vote in either House on the Patient Protec- tion and Affordable Care Act that, if determined in the affirmative, would clear such Act for enroll- ment); over ‘‘(bb) the total percentage of the non-elderly in- sured population for such preceding fiscal year (as estimated by the Secretary); exceeds ‘‘(II) 5 percentage points.’’ Pub. L. 111–148, § 3401(a)(4), added cl. (xiii). Subsec. (b)(3)(D). Pub. L. 111–148, § 3124(b)(1)(A), sub- stituted ‘‘October 1, 2012’’ for ‘‘October 1, 2011’’ in intro- ductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 111–148, § 3124(b)(1)(B), substituted ‘‘through fiscal year 2012’’ for ‘‘through fis- cal year 2011’’. Subsec. (d)(3)(E)(i). Pub. L. 111–148, § 10324(a)(2), which directed the amendment of the third sentence of sub- sec. (d)(3)(E) by inserting ‘‘and the amendments made by section 10324(a)(1) of the Patient Protection and Af- fordable Care Act’’ after ‘‘2003’’, was executed by mak- ing the insertion in the fifth sentence of cl. (i) to re- flect the probable intent of Congress. Pub. L. 111–148, § 10324(a)(1)(A), substituted ‘‘clause (ii) or (iii)’’ for ‘‘clause (ii)’’. Subsec. (d)(3)(E)(iii). Pub. L. 111–148, § 10324(a)(1)(B), added cl. (iii). Subsec. (d)(5)(B)(iv). Pub. L. 111–148, § 5504(b), des- ignated existing provisions as subcl. (I), inserted ‘‘, and before July 1, 2010’’ after ‘‘1997’’, and added subcl. (II). Page 3882 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(5)(B)(v). Pub. L. 111–148, § 5506(b), which di- rected substitution of ‘‘subsections (h)(4)(H)(vi), (h)(7), and (h)(8)’’ for ‘‘subsections (h)(7) and (h)(8)’’ in second sentence, was executed by making the substitution in the third sentence to reflect the probable intent of Con- gress. Pub. L. 111–148, § 5503(b)(1), which directed the substi- tution, in second sentence, of ‘‘subsections (h)(7) and (h)(8)’’ for ‘‘subsection (h)(7)’’ and ‘‘they apply’’ for ‘‘it applies’’, was executed by making the substitution in the third sentence to reflect the probable intent of Con- gress. Subsec. (d)(5)(B)(x). Pub. L. 111–148, § 5505(b), added cl. (x) relating to determining the hospital’s number of full-time equivalent residents. Pub. L. 111–148, § 5503(b)(2), added cl. (x) relating to in- direct teaching adjustment factor for additional pay- ment amount attributable to resident positions. Subsec. (d)(5)(F)(i). Pub. L. 111–148, § 3133(1), sub- stituted ‘‘Subject to subsection (r), for’’ for ‘‘For’’ in introductory provisions. Subsec. (d)(5)(G)(i). Pub. L. 111–148, § 3124(a)(1), sub- stituted ‘‘October 1, 2012’’ for ‘‘October 1, 2011’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 111–148, § 3124(a)(2), substituted ‘‘October 1, 2012’’ for ‘‘October 1, 2011’’. Subsec. (d)(7)(C). Pub. L. 111–192, § 102(a)(2), added sub- par. (C). Subsec. (d)(12)(A). Pub. L. 111–148, § 3125(1), inserted ‘‘or (D)’’ after ‘‘subparagraph (B)’’. Subsec. (d)(12)(B). Pub. L. 111–148, § 3125(2), sub- stituted ‘‘For discharges occurring in fiscal years 2005 through 2010 and for discharges occurring in fiscal year 2013 and subsequent fiscal years, the Secretary’’ for ‘‘The Secretary’’ in introductory provisions. Subsec. (d)(12)(C)(i). Pub. L. 111–148, § 10314(1), sub- stituted ‘‘1,600 discharges’’ for ‘‘1,500 discharges’’. Pub. L. 111–148, § 3125(3), inserted ‘‘(or, with respect to fiscal years 2011 and 2012, 15 road miles)’’ after ‘‘25 road miles’’ and ‘‘(or, with respect to fiscal years 2011 and 2012, 1,500 discharges of individuals entitled to, or en- rolled for, benefits under part A)’’ after ‘‘800 dis- charges’’. Subsec. (d)(12)(D). Pub. L. 111–148, § 10314(2), sub- stituted ‘‘1,600 discharges’’ for ‘‘1,500 discharges’’. Pub. L. 111–148, § 3125(4), added subpar. (D). Subsec. (h)(4)(E). Pub. L. 111–148, § 5505(a)(1)(A), sub- stituted ‘‘Subject to subparagraphs (J) and (K), such rules’’ for ‘‘Such rules’’ in introductory provisions. Pub. L. 111–148, § 5504(a), substituted ‘‘shall be count- ed and that—’’ for ‘‘shall be counted and that all the time’’, inserted cl. (i) designation and ‘‘effective for cost reporting periods beginning before July 1, 2010, all the time;’’ before ‘‘so spent’’, substituted ‘‘; and’’ for period at end, added cl. (ii), and inserted concluding provisions. Subsec. (h)(4)(F)(i). Pub. L. 111–148, § 5503(a)(1), sub- stituted ‘‘paragraphs (7) and (8)’’ for ‘‘paragraph (7)’’. Subsec. (h)(4)(H)(i). Pub. L. 111–148, § 5503(a)(2), sub- stituted ‘‘paragraphs (7) and (8)’’ for ‘‘paragraph (7)’’. Subsec. (h)(4)(H)(vi). Pub. L. 111–148, § 5506(a), added cl. (vi). Subsec. (h)(4)(J), (K). Pub. L. 111–148, § 5505(a)(1)(B), added subpars. (J) and (K). Subsec. (h)(5)(K). Pub. L. 111–148, § 5505(a)(2), added subpar. (K). Subsec. (h)(7)(E). Pub. L. 111–148, § 5506(e), substituted ‘‘this paragraph, paragraph (8), or paragraph (4)(H)(vi)’’ for ‘‘paragraph or paragraph (8)’’. Pub. L. 111–148, § 5503(a)(3), inserted ‘‘or paragraph (8)’’ before period at end. Subsec. (h)(8). Pub. L. 111–148, § 5503(a)(4), added par. (8). Subsec. (h)(8)(I). Pub. L. 111–309 added subpar. (I). Subsec. (j)(3)(C). Pub. L. 111–148, § 3401(d)(1), des- ignated existing provisions as cl. (i), inserted heading and ‘‘subject to clause (ii)’’ after ‘‘establish an increase factor’’ in text, and added cl. (ii). Subsec. (j)(3)(D). Pub. L. 111–152, § 1105(c)(3), struck out cl. (i) designation and heading, redesignated subcls. (I) to (V) of former cl. (i) as cls. (i) to (v), respectively, and realigned margins. Pub. L. 111–148, § 3401(d)(2), added subpar. (D). Subsec. (j)(3)(D)(i)(I). Pub. L. 111–148, § 10319(c)(1), struck out ‘‘and’’ at end. Subsec. (j)(3)(D)(i)(II). Pub. L. 111–152, § 1105(c)(1)(A), placed subcl. (II), which was directed to be added by Pub. L. 111–148, § 10319(c)(3), after subcl. (I) and struck out ‘‘and’’ at end. See Amendment note below. Pub. L. 111–148, § 10319(c)(3), which directed addition of subcl. (II) ‘‘after subclause (II)’’, could not be exe- cuted. See Amendment note above. Former subcl. (II) redesignated (III). Subsec. (j)(3)(D)(i)(III). Pub. L. 111–152, § 1105(c)(1)(B), added subcl. (III) and struck out former subcl. (III) which read as follows: ‘‘subject to clause (ii), for each of fiscal years 2014 through 2019, 0.2 percentage point.’’ Pub. L. 111–148, § 10319(c)(2), (4), redesignated subcl. (II) as (III) and substituted ‘‘2014’’ for ‘‘2012’’. Subsec. (j)(3)(D)(i)(IV), (V). Pub. L. 111–152, § 1105(c)(1)(B), added subcls. (IV) and (V). Subsec. (j)(3)(D)(ii). Pub. L. 111–152, § 1105(c)(2), struck out cl. (ii). Text read as follows: ‘‘Clause (i)(II) shall be applied with respect to any of fiscal years 2014 through 2019 by substituting ‘0.0 percentage points’ for ‘0.2 per- centage point’, if for such fiscal year— ‘‘(I) the excess (if any) of— ‘‘(aa) the total percentage of the non-elderly in- sured population for the preceding fiscal year (based on the most recent estimates available from the Director of the Congressional Budget Office be- fore a vote in either House on the Patient Protec- tion and Affordable Care Act that, if determined in the affirmative, would clear such Act for enroll- ment); over ‘‘(bb) the total percentage of the non-elderly in- sured population for such preceding fiscal year (as estimated by the Secretary); exceeds ‘‘(II) 5 percentage points.’’ Subsec. (j)(7), (8). Pub. L. 111–148, § 3004(b), added par. (7) and redesignated former par. (7) as (8). Subsec. (m)(3), (4). Pub. L. 111–148, § 3401(c), added pars. (3) and (4). Subsec. (m)(4)(A). Pub. L. 111–152, § 1105(b)(3), struck out subpar. (A) designation and heading before ‘‘For purposes’’, redesignated cl. (i) as subpar. (A), and re- aligned margin. Subsec. (m)(4)(A)(i). Pub. L. 111–148, § 10319(b)(1)(A), substituted ‘‘rate year 2010’’ for ‘‘each of rate years 2010 and 2011’’ and struck out ‘‘and’’ at end. Subsec. (m)(4)(A)(ii), (iii). Pub. L. 111–152, § 1105(b)(3), redesignated cls. (ii) and (iii) as subpars. (B) and (C), re- spectively, and realigned margins. Pub. L. 111–148, § 10319(b)(1), (C), added cls. (ii) and (iii). Former cl. (ii) redesignated (iv). Subsec. (m)(4)(A)(iv). Pub. L. 111–152, § 1105(b)(3), re- designated cl. (iv) as subpar. (D) and realigned margin. Pub. L. 111–152, § 1105(b)(1), added cl. (iv) and struck out former cl. (iv), which read as follows: ‘‘subject to subparagraph (B), for each of rate years 2014 through 2019, 0.2 percentage point.’’ Pub. L. 111–148, § 10319(b)(1)(B), (D), redesignated cl. (ii) as (iv) and substituted ‘‘2014’’ for ‘‘2012’’. Subsec. (m)(4)(A)(v), (vi). Pub. L. 111–152, § 1105(b)(3), redesignated cls. (v) and (vi) as subpars. (E) and (F), re- spectively, and realigned margins. Pub. L. 111–152, § 1105(b)(1)(B), added cls. (v) and (vi). Subsec. (m)(4)(B). Pub. L. 111–152, § 1105(b)(3), redesig- nated cl. (ii) of former subpar. (A) as subpar. (B) and re- aligned margin. Pub. L. 111–152, § 1105(b)(2), struck out subpar. (B). Prior to amendment, text read as follows: ‘‘Subpara- graph (A)(iv) shall be applied with respect to any of rate years 2014 through 2019 by substituting ‘0.0 per- centage points’ for ‘0.2 percentage point’, if for such rate year— ‘‘(i) the excess (if any) of— ‘‘(I) the total percentage of the non-elderly in- sured population for the preceding rate year (based on the most recent estimates available from the Di- rector of the Congressional Budget Office before a vote in either House on the Patient Protection and Page 3883 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Affordable Care Act that, if determined in the af- firmative, would clear such Act for enrollment); over ‘‘(II) the total percentage of the non-elderly in- sured population for such preceding rate year (as estimated by the Secretary); exceeds ‘‘(ii) 5 percentage points.’’ Pub. L. 111–148, § 10319(b)(2), substituted ‘‘(A)(iv)’’ for ‘‘(A)(ii)’’ in introductory provisions. Subsec. (m)(4)(C) to (F). Pub. L. 111–152, § 1105(b)(3), redesignated cls. (iii) to (vi) of former subpar. (A) as subpars. (C) to (F), respectively, and realigned margins. Subsec. (m)(5). Pub. L. 111–148, § 3004(a), added par. (5). Subsec. (o). Pub. L. 111–148, § 3001(a)(1), added subsec. (o). Subsec. (o)(2)(A). Pub. L. 111–148, § 10335, inserted ‘‘, other than measures of readmissions,’’ after ‘‘shall select measures’’. Subsec. (p). Pub. L. 111–148, § 3008(a), added subsec. (p). Subsec. (q). Pub. L. 111–148, § 3025(a), added subsec. (q). Subsec. (q)(1). Pub. L. 111–148, § 10309, in introductory provisions, substituted ‘‘the Secretary shall make pay- ments (in addition to the payments described in para- graph (2)(A)(ii)) for such a discharge to such hospital under subsection (d) (or section 1395f(b)(3) of this title, as the case may be) in an amount equal to the product of’’ for ‘‘the Secretary shall reduce the payments that would otherwise be made to such hospital under sub- section (d) (or section 1395f(b)(3) of this title, as the case may be) for such a discharge by an amount equal to the product of’’. Subsec. (r). Pub. L. 111–148, § 3133(2), added subsec. (r). Subsec. (r)(1). Pub. L. 111–152, § 1104(1), substituted ‘‘2014’’ for ‘‘2015’’. Subsec. (r)(2). Pub. L. 111–152, § 1104(2)(A), substituted ‘‘2014’’ for ‘‘2015’’ in introductory provisions. Subsec. (r)(2)(B)(i). Pub. L. 111–152, § 1104(2)(B)(i), (ii), (iv), inserted ‘‘2014,’’ after ‘‘years’’ in heading and ‘‘2014,’’ after ‘‘each of fiscal years’’ in introductory pro- visions and substituted ‘‘minus 0.1 percentage points for fiscal year 2014 and minus 0.2 percentage points for each of fiscal years 2015, 2016, and 2017’’ for ‘‘minus 1.5 percentage points’’ in concluding provisions. Pub. L. 111–148, § 10316(1)(A), (D), struck out ‘‘(divided by 100)’’ after ‘‘change’’ in introductory provisions and inserted concluding provisions. Subsec. (r)(2)(B)(i)(I). Pub. L. 111–152, § 1104(2)(B)(iii), substituted ‘‘on the Health Care and Education Rec- onciliation Act of 2010’’ for ‘‘on such Act’’. Pub. L. 111–148, § 10316(1)(B), substituted ‘‘2013’’ for ‘‘2012’’. Subsec. (r)(2)(B)(i)(II). Pub. L. 111–148, § 10316(1)(C), substituted comma for period at end. Subsec. (r)(2)(B)(ii). Pub. L. 111–152, § 1104(2)(C), sub- stituted ‘‘minus 0.2 percentage points for each of fiscal years 2018 and 2019’’ for ‘‘and, for each of 2018 and 2019, minus 1.5 percentage points’’ in concluding provisions. Pub. L. 111–148, § 10316(2), struck out ‘‘(divided by 100)’’ after ‘‘change’’ in introductory provisions, sub- stituted ‘‘2013’’ for ‘‘2012’’ in subcl. (I), substituted comma for period at end of subcl. (II), and inserted con- cluding provisions. Subsec. (s). Pub. L. 111–148, § 3401(f), added subsec. (s). Subsec. (s)(3). Pub. L. 111–152, § 1105(d)(3), struck out subpar. (A) designation and heading, redesignated cls. (i) to (v) of former subpar. (A) as subpars. (A) to (E), re- spectively, and realigned margins. Subsec. (s)(3)(A)(i). Pub. L. 111–148, § 10319(e)(1), struck out ‘‘and’’ at end. Subsec. (s)(3)(A)(ii). Pub. L. 111–152, § 1105(d)(1)(A), placed cl. (ii), which was directed to be added by Pub. L. 111–148, § 10319(e)(3), after cl. (i) and struck out ‘‘and’’ at end. See Amendment note below. Pub. L. 111–148, § 10319(e)(3), which directed addition of cl. (ii) ‘‘after clause (ii)’’, could not be executed. See Amendment note above. Former cl. (ii) redesignated (iii). Subsec. (s)(3)(A)(iii). Pub. L. 111–152, § 1105(d)(1)(B), added cl. (iii) and struck out former cl. (iii) which read as follows: ‘‘subject to subparagraph (B), for each of the rate years beginning in 2014 through 2019, 0.2 percentage point.’’ Pub. L. 111–148, § 10319(e)(2), (4), redesignated cl. (ii) as (iii) and substituted ‘‘2014’’ for ‘‘2012’’. Subsec. (s)(3)(A)(iv), (v). Pub. L. 111–152, § 1105(d)(1)(B), added cls. (iv) and (v). Subsec. (s)(3)(B). Pub. L. 111–152, § 1105(d)(2), struck out subpar. (B). Prior to amendment, text read as fol- lows: ‘‘Subparagraph (A)(ii) shall be applied with re- spect to any of rate years 2014 through 2019 by sub- stituting ‘0.0 percentage points’ for ‘0.2 percentage point’, if for such rate year— ‘‘(i) the excess (if any) of— ‘‘(I) the total percentage of the non-elderly in- sured population for the preceding rate year (based on the most recent estimates available from the Di- rector of the Congressional Budget Office before a vote in either House on the Patient Protection and Affordable Care Act that, if determined in the af- firmative, would clear such Act for enrollment); over ‘‘(II) the total percentage of the non-elderly in- sured population for such preceding rate year (as estimated by the Secretary); exceeds ‘‘(ii) 5 percentage points.’’ Subsec. (s)(4). Pub. L. 111–148, § 10322(a), added par. (4). 2009—Subsec. (b)(3)(B)(viii)(I). Pub. L. 111–5, § 4102(b)(1)(A), inserted ‘‘(or, beginning with fiscal year 2015, by one-quarter)’’ after ‘‘2.0 percentage points’’. Subsec. (b)(3)(B)(ix). Pub. L. 111–5, § 4102(b)(1)(B), added cl. (ix). Subsec. (n). Pub. L. 111–5, § 4102(a)(1), added subsec. (n). 2008—Subsec. (b)(3)(C). Pub. L. 110–275, § 122(b)(1), sub- stituted ‘‘subparagraphs (I) and (L)’’ for ‘‘subparagraph (I)’’ in introductory provisions. Subsec. (b)(3)(I)(i). Pub. L. 110–275, § 122(b)(2), sub- stituted ‘‘Subject to subparagraph (L), for’’ for ‘‘For’’ in introductory provisions. Subsec. (b)(3)(L). Pub. L. 110–275, § 122(a), added sub- par. (L). 2007—Subsec. (h)(4)(H)(v). Pub. L. 110–161, § 225(a), added cl. (v). Subsec. (h)(7)(D), (E). Pub. L. 110–161, § 225(b)(1), added subpar. (D) and redesignated former subpar. (D) as (E). Subsec. (j)(3)(C). Pub. L. 110–173, § 115(a)(1), inserted at end ‘‘The increase factor to be applied under this sub- paragraph for each of fiscal years 2008 and 2009 shall be 0 percent.’’ Subsec. (m). Pub. L. 110–173, § 114(e)(1), added subsec. (m). 2006—Subsec. (b)(3)(B)(i)(XIX). Pub. L. 109–171, § 5001(a)(1)(A), substituted ‘‘2006’’ for ‘‘2007’’. Subsec. (b)(3)(B)(i)(XX). Pub. L. 109–171, § 5001(a)(1)(B), substituted ‘‘for each subsequent fiscal year, subject to clause (viii),’’ for ‘‘for fiscal year 2008 and each subse- quent fiscal year,’’. Subsec. (b)(3)(B)(vii)(I). Pub. L. 109–171, § 5001(a)(2)(A), substituted ‘‘for fiscal years 2005 and 2006’’ for ‘‘for each of fiscal years 2005 through 2007’’. Subsec. (b)(3)(B)(vii)(II). Pub. L. 109–171, § 5001(a)(2)(B), substituted ‘‘For fiscal years 2005 and 2006, each’’ for ‘‘Each’’. Subsec. (b)(3)(B)(viii). Pub. L. 109–432, § 205(b)(1), re- aligned margins. Pub. L. 109–171, § 5001(a)(3), added cl. (viii). Subsec. (b)(3)(B)(viii)(III). Pub. L. 109–432, § 109(a)(2), inserted ‘‘(including medication errors)’’ after ‘‘quality of care’’. Subsec. (b)(3)(D). Pub. L. 109–171, § 5003(b)(1), inserted ‘‘subject to subparagraph (K),’’ after ‘‘(d)(5)(G)),’’ in in- troductory provisions. Pub. L. 109–171, § 5003(a)(2)(A)(i), substituted ‘‘occur- ring’’ for ‘‘beginning’’ and ‘‘October 1, 2011’’ for ‘‘Octo- ber 1, 2006’’ in introductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 109–171, § 5003(a)(2)(A)(ii), substituted ‘‘through fiscal year 2011’’ for ‘‘through fis- cal year 2005’’. Subsec. (b)(3)(K). Pub. L. 109–171, § 5003(b)(2), added subpar. (K). Page 3884 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(4)(C)(iv). Pub. L. 109–432, § 106(c)(1), struck out cl. (iv) which read as follows: ‘‘The Secretary shall include recommendations with respect to adjustments to weighting factors under clause (i) in the annual re- port to Congress required under subsection (e)(3)(B) of this section.’’ Subsec. (d)(4)(D). Pub. L. 109–171, § 5001(c)(1), added subpar. (D). Subsec. (d)(5)(F)(vi). Pub. L. 109–171, § 5002(a), inserted concluding provisions. Subsec. (d)(5)(F)(xiv)(II). Pub. L. 109–171, § 5003(d), in- serted ‘‘or, in the case of discharges occurring on or after October 1, 2006, as a medicare-dependent, small rural hospital under subparagraph (G)(iv)’’ before pe- riod at end. Subsec. (d)(5)(G)(i). Pub. L. 109–171, § 5003(a)(1)(A), sub- stituted ‘‘October 1, 2011’’ for ‘‘October 1, 2006’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 109–171, § 5003(c), in- serted ‘‘(or 75 percent in the case of discharges occur- ring on or after October 1, 2006)’’ after ‘‘50 percent’’. Pub. L. 109–171, § 5003(a)(1)(B), substituted ‘‘October 1, 2011’’ for ‘‘October 1, 2006’’ and inserted ‘‘or for dis- charges in the fiscal year’’ after ‘‘for the cost reporting period’’. Subsec. (d)(7)(B). Pub. L. 109–171, § 5001(c)(2), inserted ‘‘, including the selection and revision of codes under paragraph (4)(D)’’ before period at end. Subsec. (e)(3). Pub. L. 109–432, § 106(c)(2), struck out par. (3) which read as follows: ‘‘The Secretary, not later than April 1, 1987, for fiscal year 1988 and not later than March 1 before the beginning of each fiscal year (begin- ning with fiscal year 1989), shall report to the Congress the Secretary’s initial estimate of the percentage change that the Secretary will recommend under para- graph (4) with respect to that fiscal year.’’ 2003—Subsec. (b)(3)(B)(i)(XIX), (XX). Pub. L. 108–173, § 501(a), added subcls. (XIX) and (XX) and struck out former subcl. (XIX) which read as follows: ‘‘for fiscal year 2004 and each subsequent fiscal year, the market basket percentage increase for hospitals in all areas.’’ Subsec. (b)(3)(B)(vii). Pub. L. 108–173, § 501(b), added cl. (vii). Subsec. (b)(3)(I)(i)(I). Pub. L. 108–173, § 736(a)(9), sub- stituted ‘‘the amount’’ for ‘‘the the amount’’. Subsec. (b)(3)(I)(iii). Pub. L. 108–173, § 407(a), added cl. (iii). Subsec. (d)(2)(C)(i). Pub. L. 108–173, § 502(b), sub- stituted ‘‘1999,’’ for ‘‘1999 or’’ and inserted ‘‘, or the Medicare Prescription Drug, Improvement, and Mod- ernization Act of 2003’’ before comma at end. Subsec. (d)(2)(C)(iv). Pub. L. 108–173, § 402(b)(2), struck out ‘‘or’’ before ‘‘the enactment of section 303’’ and in- serted ‘‘, or the enactment of section 402(a)(1) of the Medicare Prescription Drug, Improvement, and Mod- ernization Act of 2003’’ before period at end. Subsec. (d)(3). Pub. L. 108–173, § 401(b)(2)(A), inserted ‘‘, for fiscal years before fiscal year 1997,’’ before ‘‘a re- gional adjusted DRG prospective payment rate’’ in in- troductory provisions. Subsec. (d)(3)(A)(iii). Pub. L. 108–173, § 401(b)(3), sub- stituted ‘‘in an urban area’’ for ‘‘in an other urban area’’. Subsec. (d)(3)(A)(iv). Pub. L. 108–173, § 401(a), des- ignated existing provisions as subcl. (I), substituted ‘‘Subject to subclause (II), for discharges’’ for ‘‘For dis- charges’’, and added subcl. (II). Subsec. (d)(3)(D). Pub. L. 108–173, § 401(b)(1)(A), (B), (2)(B), in heading, struck out ‘‘in different areas’’ after ‘‘hospitals’’ and, in introductory provisions, inserted ‘‘, for fiscal years before fiscal year 1997,’’ before ‘‘a re- gional DRG prospective payment rate’’ and struck out ‘‘, each of’’ before ‘‘which is equal—’’. Subsec. (d)(3)(D)(i). Pub. L. 108–173, § 401(b)(1)(C)(i), in- serted ‘‘for fiscal years before fiscal year 2004,’’ before ‘‘for hospitals’’ in introductory provisions. Subsec. (d)(3)(D)(i)(II). Pub. L. 108–173, § 401(b)(1)(C)(ii), struck out ‘‘and’’ at end. Subsec. (d)(3)(D)(ii). Pub. L. 108–173, § 401(b)(1)(D)(i), inserted ‘‘for fiscal years before fiscal year 2004,’’ before ‘‘for hospitals’’ in introductory provisions. Subsec. (d)(3)(D)(ii)(II). Pub. L. 108–173, § 401(b)(1)(D)(ii), substituted ‘‘; and’’ for period at end. Subsec. (d)(3)(D)(iii). Pub. L. 108–173, § 401(b)(1)(E), added cl. (iii). Subsec. (d)(3)(E). Pub. L. 108–173, § 403(a), designated existing provisions as cl. (i), inserted cl. heading, sub- stituted ‘‘Except as provided in clause (ii), the Sec- retary’’ for ‘‘The Secretary’’, inserted at end ‘‘The Sec- retary shall apply the previous sentence for any period as if the amendments made by section 403(a)(1) of the Medicare Prescription Drug, Improvement, and Mod- ernization Act of 2003 had not been enacted.’’, and added cl. (ii). Subsec. (d)(5)(B)(ii). Pub. L. 108–173, § 422(b)(1)(A), sub- stituted ‘‘Subject to clause (ix), for discharges’’ for ‘‘For discharges’’ in introductory provisions. Subsec. (d)(5)(B)(ii)(VI). Pub. L. 108–173, § 502(a)(1), struck out ‘‘and’’ at end. Subsec. (d)(5)(B)(ii)(VII). Pub. L. 108–173, § 502(a)(2), inserted ‘‘and before April 1, 2004,’’ after ‘‘on or after October 1, 2002,’’ and substituted semicolon for period at end. Subsec. (d)(5)(B)(ii)(VIII) to (XII). Pub. L. 108–173, § 502(a)(3), added subcls. (VIII) to (XII). Subsec. (d)(5)(B)(v). Pub. L. 108–173, § 422(b)(1)(B), in- serted at end ‘‘The provisions of subsection (h)(7) shall apply with respect to the first sentence of this clause in the same manner as it applies with respect to sub- section (h)(4)(F)(i).’’ Subsec. (d)(5)(B)(ix). Pub. L. 108–173, § 422(b)(1)(C), added cl. (ix). Subsec. (d)(5)(F)(iv)(II) to (VI). Pub. L. 108–173, § 402(b)(1)(A), inserted ‘‘subject to clause (xiv) and’’ be- fore ‘‘for discharges occurring’’. Subsec. (d)(5)(F)(viii). Pub. L. 108–173, § 402(b)(1)(B), substituted ‘‘Subject to clause (xiv), the formula’’ for ‘‘The formula’’. Subsec. (d)(5)(F)(x) to (xiii). Pub. L. 108–173, § 402(b)(1)(C), substituted ‘‘Subject to clause (xiv), for purposes’’ for ‘‘For purposes’’ in introductory provi- sions. Subsec. (d)(5)(F)(xiv). Pub. L. 108–173, § 402(a), added cl. (xiv). Subsec. (d)(5)(K)(i). Pub. L. 108–173, § 503(b)(2)(A), in- serted at end ‘‘Such mechanism shall be modified to meet the requirements of clause (viii).’’ Subsec. (d)(5)(K)(ii)(I). Pub. L. 108–173, § 503(b)(1), in- serted ‘‘(applying a threshold specified by the Sec- retary that is the lesser of 75 percent of the standard- ized amount (increased to reflect the difference be- tween cost and charges) or 75 percent of one standard deviation for the diagnosis-related group involved)’’ after ‘‘is inadequate’’. Subsec. (d)(5)(K)(ii)(III). Pub. L. 108–173, § 503(d)(1), struck out ‘‘subject to paragraph (4)(C)(iii),’’ before ‘‘provide for additional payment’’. Subsec. (d)(5)(K)(vii). Pub. L. 108–173, § 503(a), added cl. (vii). Subsec. (d)(5)(K)(viii). Pub. L. 108–173, § 503(b)(2)(B), added cl. (viii). Subsec. (d)(5)(K)(ix). Pub. L. 108–173, § 503(c), added cl. (ix). Subsec. (d)(7)(A). Pub. L. 108–173, § 406(b), inserted ‘‘or the determination of the applicable percentage increase under paragraph (12)(A)(ii)’’ after ‘‘to subsection (e)(1)’’. Subsec. (d)(9)(A). Pub. L. 108–173, § 401(c)(1)(B), added cl. (ii) and concluding provisions and struck out former cl. (ii) which read as follows: ‘‘for discharges beginning in a fiscal year beginning on or after October 1, 1997, 50 percent (and for discharges between October 1, 1987, and September 30, 1997, 25 percent) of the discharge-weight- ed average of— ‘‘(I) the national adjusted DRG prospective pay- ment rate (determined under paragraph (3)(D)) for hospitals located in a large urban area, ‘‘(II) such rate for hospitals located in other urban areas, and ‘‘(III) such rate for hospitals located in a rural area, for such discharges, adjusted in the manner provided in paragraph (3)(E) for different area wage levels. As used Page 3885 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww in this section, the term ‘subsection (d) Puerto Rico hospital’ means a hospital that is located in Puerto Rico and that would be a subsection (d) hospital (as de- fined in paragraph (1)(B)) if it were located in one of the fifty States.’’ Subsec. (d)(9)(A)(i). Pub. L. 108–173, §§ 401(c)(1)(A), 504(1)(A), substituted ‘‘the applicable Puerto Rico per- centage (specified in subparagraph (E))’’ for ‘‘for dis- charges beginning on or after October 1, 1997, 50 percent (and for discharges between October 1, 1987, and Sep- tember 30, 1997, 75 percent)’’ and struck out ‘‘and’’ at end. Subsec. (d)(9)(A)(ii). Pub. L. 108–173, § 504(1)(B), which directed the substitution of ‘‘the applicable Federal percentage (specified in subparagraph (E))’’ for ‘‘for dis- charges beginning in a fiscal year beginning on or after October 1, 1997, 50 percent (and for discharges between October 1, 1987, and September 30, 1997, 25 percent)’’, could not be executed because of the amendment by Pub. L. 108–173, § 401(c)(1)(B). See above. Subsec. (d)(9)(C)(i). Pub. L. 108–173, § 401(c)(2)(A), des- ignated existing provisions as subcl. (I), substituted ‘‘For discharges in a fiscal year after fiscal year 1988 and before fiscal year 2004, the Secretary’’ for ‘‘The Secretary’’, and added subcl. (II). Subsec. (d)(9)(C)(ii). Pub. L. 108–173, § 401(c)(2)(B), in- serted ‘‘(or for fiscal year 2004 and thereafter, the aver- age standardized amount)’’ after ‘‘each of the average standardized amounts’’. Subsec. (d)(9)(C)(iii)(I). Pub. L. 108–173, § 401(c)(2)(C), struck out ‘‘for hospitals located in an urban or rural area, respectively’’ after ‘‘reduced under clause (ii))’’. Subsec. (d)(9)(C)(iv). Pub. L. 108–173, § 403(b), des- ignated existing provisions as subcl. (I), substituted ‘‘paragraph (3)(E)(i)’’ for ‘‘paragraph (3)(E)’’, and added subcl. (II). Subsec. (d)(9)(E). Pub. L. 108–173, § 504(2), added sub- par. (E). Subsec. (d)(12). Pub. L. 108–173, § 406(a), added par. (12). Subsec. (d)(13). Pub. L. 108–173, § 505(a), added par. (13). Subsec. (g)(3)(B). Pub. L. 108–173, § 736(a)(15), inserted closing parenthesis after ‘‘(as defined in subsection (d)(5)(D)(iii)’’. Subsec. (h)(2)(D)(iv)(I). Pub. L. 108–173, § 711(1), in heading, inserted ‘‘and 2004 through 2013’’ after ‘‘and 2002’’ and, in text, inserted ‘‘or during the period begin- ning with fiscal year 2004 and ending with fiscal year 2013’’ after ‘‘during fiscal year 2001 or fiscal year 2002’’. Subsec. (h)(2)(D)(iv)(II). Pub. L. 108–173, § 711(2), sub- stituted ‘‘For the’’ for ‘‘For a’’ and struck out ‘‘fiscal year 2004, or fiscal year 2005,’’ after ‘‘during fiscal year 2003,’’. Subsec. (h)(3)(D)(ii)(III). Pub. L. 108–173, § 736(c)(6), struck out ‘‘and’’ at end. Subsec. (h)(4)(F)(i). Pub. L. 108–173, § 422(a)(1), inserted ‘‘subject to paragraph (7),’’ after ‘‘October 1, 1997,’’. Subsec. (h)(4)(H)(i). Pub. L. 108–173, § 422(a)(2), in- serted ‘‘and subject to paragraph (7)’’ after ‘‘subpara- graphs (F) and (G)’’. Subsec. (h)(7). Pub. L. 108–173, § 422(a)(3), added par. (7). 2000—Subsec. (b)(3)(B)(i)(XVI). Pub. L. 106–554, § 1(a)(6) [title III, § 301(a)(1)], substituted ‘‘for hospitals in all areas,’’ for ‘‘minus 1.1 percentage points for hospitals (other than sole community hospitals) in all areas, and the market basket percentage increase for sole commu- nity hospitals,’’. Subsec. (b)(3)(B)(i)(XVII). Pub. L. 106–554, § 1(a)(6) [title III, § 301(a)(2)(B)], struck out ‘‘and’’ at end. Pub. L. 106–554, § 1(a)(6) [title III, § 301(a)(2)(A)], which directed amendment of subcl. (XVII) by ‘‘striking ‘minus 1.1 percentage points’ and inserting ‘minus 0.55 percentage points; and’’, was executed as if an end quotation mark for the inserted material followed ‘‘points’’, to reflect the probable intent of Congress. Subsec. (b)(3)(B)(i)(XVIII). Pub. L. 106–554, § 1(a)(6) [title III, § 301(a)(5)], added subcl. (XVIII). Former subcl. (XVIII) redesignated (XIX). Subsec. (b)(3)(B)(i)(XIX). Pub. L. 106–554, § 1(a)(6) [title III, § 301(a)(3), (4)], redesignated subcl. (XVIII) as (XIX) and substituted ‘‘fiscal year 2004’’ for ‘‘fiscal year 2003’’. Subsec. (b)(3)(H)(ii)(III). Pub. L. 106–554, § 1(a)(6) [title III, § 307(a)(1)(A)], inserted ‘‘subject to subparagraph (J),’’ after ‘‘2002,’’. Subsec. (b)(3)(I)(i). Pub. L. 106–554, § 1(a)(6) [title II, § 213(a)(1)], in introductory provisions, substituted ‘‘there shall be substituted for the amount otherwise determined under subsection (d)(5)(D)(i), if such substi- tution results in a greater amount of payment under this section for the hospital’’ for ‘‘that for its cost re- porting period beginning during 1999 is paid on the basis of the target amount applicable to the hospital under subparagraph (C) and that elects (in a form and manner determined by the Secretary) this subpara- graph to apply to the hospital, there shall be sub- stituted for such target amount’’. Subsec. (b)(3)(I)(i)(I). Pub. L. 106–554, § 1(a)(6) [title II, § 213(a)(2)], substituted ‘‘the amount otherwise applica- ble to the hospital under subsection (d)(5)(D)(i) (re- ferred to in this clause as the ‘subsection (d)(5)(D)(i) amount’)’’ for ‘‘target amount otherwise applicable to the hospital under subparagraph (C) (referred to in this clause as the ‘subparagraph (C) target amount’)’’. Subsec. (b)(3)(I)(i)(II), (III). Pub. L. 106–554, § 1(a)(6) [title II, § 213(a)(3)], substituted ‘‘subsection (d)(5)(D)(i) amount’’ for ‘‘subparagraph (C) target amount’’. Subsec. (b)(3)(J). Pub. L. 106–554, § 1(a)(6) [title III, § 307(a)(1)(B)], added subpar. (J). Subsec. (d)(1)(B)(v)(III). Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 152(a)], added subcl. (III). Subsec. (d)(1)(E). Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 152(b)], substituted ‘‘For purposes of subclauses (II) and (III) of subparagraph (B)(v)’’ for ‘‘For purposes of subparagraph (B)(v)(II)’’. Subsec. (d)(2)(C)(i). Pub. L. 106–554, § 1(a)(6) [title III, § 302(c)], inserted ‘‘or of section 302 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Pro- tection Act of 2000’’ after ‘‘Balanced Budget Refine- ment Act of 1999’’. Subsec. (d)(2)(C)(iv). Pub. L. 106–554, § 1(a)(6) [title III, § 303(c)], substituted ‘‘1989,’’ for ‘‘1989 or’’ and inserted ‘‘, or the enactment of section 303 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Pro- tection Act of 2000’’ after ‘‘Omnibus Budget Reconcili- ation Act of 1990’’. Subsec. (d)(3)(A)(vi). Pub. L. 106–554, § 1(a)(6) [title III, § 301(e)(1)], added cl. (vi). Subsec. (d)(3)(E). Pub. L. 106–554, § 1(a)(6) [title III, § 304(c)(2)], in third sentence, substituted ‘‘Not less often than once every 3 years the Secretary (through such survey or otherwise) shall measure’’ for ‘‘To the extent determined feasible by the Secretary, such sur- vey shall measure’’. Subsec. (d)(4)(C)(i). Pub. L. 106–554, § 1(a)(6) [title V, § 533(b)(3)], substituted ‘‘technology (including a new medical service or technology under paragraph (5)(K)),’’ for ‘‘technology,’’. Subsec. (d)(5)(B). Pub. L. 106–554, § 1(a)(6) [title III, § 302(d)], realigned margins. Subsec. (d)(5)(B)(ii)(V). Pub. L. 106–554, § 1(a)(6) [title III, § 302(a)(1)], struck out ‘‘and’’ at end. Subsec. (d)(5)(B)(ii)(VI). Pub. L. 106–554, § 1(a)(6) [title III, § 302(a)(4)], added subcl. (VI). Former subcl. (VI) re- designated (VII). Subsec. (d)(5)(B)(ii)(VII). Pub. L. 106–554, § 1(a)(6) [title III, § 302(a)(2), (3)], redesignated subcl. (VI) as (VII) and substituted ‘‘2002’’ for ‘‘2001’’. Subsec. (d)(5)(F)(i). Pub. L. 106–554, § 1(a)(6) [title III, § 303(d)(1)], struck out ‘‘and before October 1, 1997,’’ be- fore ‘‘the Secretary shall provide’’ in introductory pro- visions. Subsec. (d)(5)(F)(iv)(II). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(5)(A)], inserted ‘‘or, for discharges occurring on or after April 1, 2001, is equal to the percent deter- mined in accordance with clause (xiii)’’ after ‘‘5 per- cent’’. Subsec. (d)(5)(F)(iv)(III). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(3)(A)], inserted ‘‘or, for discharges occurring on or after April 1, 2001, is equal to the percent deter- mined in accordance with clause (xii)’’ after ‘‘4 per- cent’’. Page 3886 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(5)(F)(iv)(IV). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(4)], inserted ‘‘or, for discharges occurring on or after April 1, 2001, the greater of the percentages de- termined under clause (x) or (xi)’’ after ‘‘clause (viii)’’. Subsec. (d)(5)(F)(iv)(V). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(2)(A)], inserted ‘‘or, for discharges occurring on or after April 1, 2001, is equal to the percent deter- mined in accordance with clause (xi)’’ after ‘‘clause (viii)’’. Subsec. (d)(5)(F)(iv)(VI). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(1)(A)], inserted ‘‘or, for discharges occurring on or after April 1, 2001, is equal to the percent deter- mined in accordance with clause (x)’’ after ‘‘10 per- cent’’. Subsec. (d)(5)(F)(v)(II). Pub. L. 106–554, § 1(a)(6) [title II, § 211(a)(1)], inserted ‘‘(or 15 percent, for discharges occurring on or after April 1, 2001)’’ after ‘‘30 percent’’. Subsec. (d)(5)(F)(v)(III). Pub. L. 106–554, § 1(a)(6) [title II, § 211(a)(2)], inserted ‘‘(or 15 percent, for discharges occurring on or after April 1, 2001)’’ after ‘‘40 percent’’. Subsec. (d)(5)(F)(v)(IV). Pub. L. 106–554, § 1(a)(6) [title II, § 211(a)(3)], inserted ‘‘(or 15 percent, for discharges occurring on or after April 1, 2001)’’ after ‘‘45 percent’’. Subsec. (d)(5)(F)(ix)(III). Pub. L. 106–554, § 1(a)(6) [title III, § 303(a)(1)], struck out ‘‘each of’’ after ‘‘during’’ and inserted ‘‘and 2 percent, respectively’’ after ‘‘3 per- cent’’. Subsec. (d)(5)(F)(ix)(IV). Pub. L. 106–554, § 1(a)(6) [title III, § 303(a)(2)], substituted ‘‘3 percent’’ for ‘‘4 percent’’. Subsec. (d)(5)(F)(x). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(1)(B)], added cl. (x). Subsec. (d)(5)(F)(xi). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(2)(B)], added cl. (xi). Subsec. (d)(5)(F)(xii). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(3)(B)], added cl. (xii). Subsec. (d)(5)(F)(xiii). Pub. L. 106–554, § 1(a)(6) [title II, § 211(b)(5)(B)], added cl. (xiii). Subsec. (d)(5)(G)(iv)(IV). Pub. L. 106–554, § 1(a)(6) [title II, § 212(a)], inserted ‘‘, or two of the three most re- cently audited cost reporting periods for which the Sec- retary has a settled cost report,’’ after ‘‘1987’’. Subsec. (d)(5)(K), (L). Pub. L. 106–554, § 1(a)(6) [title V, § 533(b)(1)], added subpars. (K) and (L). Subsec. (d)(10)(D)(v), (vi). Pub. L. 106–554, § 1(a)(6) [title III, § 304(a)], added cls. (v) and (vi). Subsec. (h)(2)(D)(iii). Pub. L. 106–554, § 1(a)(6) [title V, § 511], in heading substituted ‘‘for’’ for ‘‘in fiscal year 2001 at 70 percent of’’ and in text inserted ‘‘, and for the cost reporting period beginning during fiscal year 2002 shall not be less than 85 percent,’’ after ‘‘70 percent’’. Subsec. (j)(1)(A). Pub. L. 106–554, § 1(a)(6) [title III, § 305(b)(1)(A)], inserted ‘‘other than a facility making an election under subparagraph (F)’’ before ‘‘in a cost reporting period’’ in introductory provisions. Subsec. (j)(1)(B). Pub. L. 106–554, § 1(a)(6) [title III, § 305(b)(1)(B)], inserted ‘‘or, in the case of a facility making an election under subparagraph (F), for any cost reporting period described in such subparagraph,’’ after ‘‘2002,’’. Subsec. (j)(1)(F). Pub. L. 106–554, § 1(a)(6) [title III, § 305(b)(1)(C)], added subpar. (F). Subsec. (j)(3)(B). Pub. L. 106–554, § 1(a)(6) [title III, § 305(b)(2)], inserted ‘‘but not taking into account any payment adjustment resulting from an election per- mitted under paragraph (1)(F)’’ after ‘‘paragraphs (4) and (6)’’. Pub. L. 106–554, § 1(a)(6) [title III, § 305(a)], substituted ‘‘98 percent for fiscal year 2001 and 100 percent for fiscal year 2002’’ for ‘‘98 percent’’. Subsec. (l)(2)(C). Pub. L. 106–554, § 1(a)(6) [title V, § 512(a)], substituted ‘‘the ratio of—’’ and cls. (i) and (ii) for ‘‘the Secretary’s estimate of the ratio of the amount of payments made under section 1395x(v) of this title to the hospital for nursing and allied health edu- cation activities for the hospital’s cost reporting period ending in the second preceding fiscal year to the total of such amounts for all hospitals for such cost report- ing periods.’’ 1999—Subsec. (b)(1). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(15)(A)], inserted a comma after ‘‘paragraph (2)’’ in concluding provisions. Subsec. (b)(2)(A). Pub. L. 106–113, § 1000(a)(6) [title I, § 122(1)], substituted ‘‘Except as provided in subpara- graph (E), in addition to’’ for ‘‘In addition to’’. Subsec. (b)(2)(E). Pub. L. 106–113, § 1000(a)(6) [title I, § 122(2)], added subpar. (E). Subsec. (b)(3)(B)(i)(XVI) to (XVIII). Pub. L. 106–113, § 1000(a)(6) [title IV, § 406], added subcls. (XVI) and (XVII), redesignated former subcl. (XVII) as (XVIII), and struck out former subcl. (XVI) which read as fol- lows: ‘‘for each of fiscal years 2001 and 2002, the market basket percentage increase minus 1.1 percentage point for hospitals in all areas, and’’. Subsec. (b)(3)(B)(ii)(VI). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(15)(B)(i)], substituted comma for semi- colon at end. Subsec. (b)(3)(B)(ii)(VII). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(15)(B)(ii)], substituted ‘‘year,’’ for ‘‘year;’’. Subsec. (b)(3)(C). Pub. L. 106–113, § 1000(a)(6) [title IV, § 405(1)], inserted ‘‘subject to subparagraph (I),’’ before ‘‘the term ‘target amount’ means’’ in introductory pro- visions. Subsec. (b)(3)(D). Pub. L. 106–113, § 1000(a)(6) [title IV, § 404(b)(1)(A)], substituted ‘‘and before October 1, 2006,’’ for ‘‘and before October 1, 2001,’’ in introductory provi- sions. Pub. L. 106–113, § 1000(a)(6) [title III, § 321(b)(2)], sub- stituted ‘‘and for discharges beginning on or after Octo- ber 1, 1997, and before October 1, 2001,’’ for ‘‘and for cost reporting periods beginning on or after October 1, 1997, and before October 1, 2001,’’ in introductory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 106–113, § 1000(a)(6) [title IV, § 404(b)(1)(B)], substituted ‘‘fiscal year 2005’’ for ‘‘fis- cal year 2000’’. Subsec. (b)(3)(H)(i) to (iii). Pub. L. 106–113, § 1000(a)(6) [title I, § 121(a)], added cl. (i), redesignated former cl. (i) as subcl. (I) of cl. (ii) and inserted ‘‘, as adjusted under clause (iii)’’ after ‘‘fiscal year 1996’’, redesignated former cl. (ii) as subcl. (II) of cl. (ii) and substituted ‘‘subclause (I)’’ for ‘‘clause (i)’’ and ‘‘such subclause’’ for ‘‘such clause’’, added cl. (iii), and redesignated former cl. (iii) as subcl. (III) of cl. (ii). Subsec. (b)(3)(I). Pub. L. 106–113, § 1000(a)(6) [title IV, § 405(2)], added subpar. (I). Subsec. (b)(4)(A)(i). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(f)], struck out ‘‘or unit’’ after ‘‘(and in the case of a hospital’’. Subsec. (b)(7)(A)(i)(II). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(h)], inserted ‘‘(as estimated by the Sec- retary)’’ after ‘‘median’’. Subsec. (d)(2)(C)(i). Pub. L. 106–113, § 1000(a)(6) [title I, § 111(c)], inserted ‘‘or any additional payments under such paragraph resulting from the application of sec- tion 111 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999’’ after ‘‘Balanced Budget Act of 1997’’. Subsec. (d)(5)(B)(ii)(V), (VI). Pub. L. 106–113, § 1000(a)(6) [title I, § 111(a)], added subcl. (V), redesig- nated former subcl. (V) as (VI), and substituted ‘‘2001’’ for ‘‘2000’’ in subcl. (VI). Subsec. (d)(5)(B)(v). Pub. L. 106–113, § 1000(a)(6) [title IV, § 407(b)(2)], inserted ‘‘(or, 130 percent of such number in the case of a hospital located in a rural area)’’ after ‘‘may not exceed the number’’. Pub. L. 106–113, § 1000(a)(6) [title IV, § 407(a)(2)], in- serted at end ‘‘Rules similar to the rules of subsection (h)(4)(F)(ii) shall apply for purposes of this clause.’’ Subsec. (d)(5)(F)(i). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(16)], inserted a comma after ‘‘1986’’ in intro- ductory provisions. Subsec. (d)(5)(F)(ix)(III). Pub. L. 106–113, § 1000(a)(6) [title I, § 112(a)(1)], substituted ‘‘during each of fiscal years 2000 and 2001’’ for ‘‘during fiscal year 2000’’. Subsec. (d)(5)(F)(ix)(IV). Pub. L. 106–113, § 1000(a)(6) [title I, § 112(a)(2)–(4)], redesignated subcl. (V) as (IV), substituted ‘‘reduced by 4 percent’’ for ‘‘reduced by 5 percent’’, and struck out former subcl. (IV) which read as follows: ‘‘during fiscal year 2001, such additional payment amount shall be reduced by 4 percent;’’. Subsec. (d)(5)(F)(ix)(V), (VI). Pub. L. 106–113, § 1000(a)(6) [title I, § 112(a)(3)], redesignated subcl. (VI) as (V). Former subcl. (V) redesignated (IV). Page 3887 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(5)(G)(i). Pub. L. 106–113, § 1000(a)(6) [title IV, § 404(a)(1)], substituted ‘‘October 1, 2006,’’ for ‘‘Octo- ber 1, 2001,’’. Pub. L. 106–113, § 1000(a)(6) [title III, § 321(b)(1)(A)], substituted ‘‘or discharges occurring on or after Octo- ber 1, 1997, and before October 1, 2001,’’ for ‘‘or begin- ning on or after October 1, 1997, and before October 1, 2001,’’. Subsec. (d)(5)(G)(ii)(II). Pub. L. 106–113, § 1000(a)(6) [title IV, § 404(a)(2)], substituted ‘‘October 1, 2006,’’ for ‘‘October 1, 2001,’’. Pub. L. 106–113, § 1000(a)(6) [title III, § 321(b)(1)(B)], substituted ‘‘or discharges occurring on or after Octo- ber 1, 1997, and before October 1, 2001,’’ for ‘‘or begin- ning on or after October 1, 1997, and before October 1, 2001,’’. Subsec. (d)(8)(B). Pub. L. 106–113, § 1000(a)(6) [title IV, § 402(a)], designated existing provisions as cl. (i), sub- stituted ‘‘described in clause (ii)’’ for ‘‘published in the Federal Register on January 3, 1980’’, and added cl. (ii). Subsec. (d)(8)(E). Pub. L. 106–113, § 1000(a)(6) [title IV, § 401(a)], added subpar. (E). Subsec. (d)(9)(A)(ii). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(k)(17)], inserted a comma after ‘‘1987’’ in intro- ductory provisions. Subsec. (g)(1)(A). Pub. L. 106–113, § 1000(a)(6) [title III, § 321(e)], substituted ‘‘October 1, 2002,’’ for ‘‘September 30, 2002,’’ in last sentence. Subsec. (h)(2)(D)(i). Pub. L. 106–113, § 1000(a)(6) [title III, § 311(a)(1), (b)(1)], inserted heading and substituted ‘‘a subsequent clause’’ for ‘‘clause (ii)’’ and ‘‘the ap- proved FTE resident amount determined’’ for ‘‘the amount determined’’. Subsec. (h)(2)(D)(ii). Pub. L. 106–113, § 1000(a)(6) [title III, § 311(b)(2)], inserted heading and realigned margins. Subsec. (h)(2)(D)(iii), (iv). Pub. L. 106–113, § 1000(a)(6) [title III, § 311(a)(2)], added cls. (iii) and (iv). Subsec. (h)(2)(E), (F). Pub. L. 106–113, § 1000(a)(6) [title III, § 311(a)(3), (4)], added subpar. (E) and redesignated former subpar. (E) as (F). Subsec. (h)(3)(D)(i). Pub. L. 106–113, § 1000(a)(6) [title V, § 541(b)(1)], inserted ‘‘, subject to clause (iii),’’ after ‘‘shall equal’’ in introductory provisions. Subsec. (h)(3)(D)(iii), (iv). Pub. L. 106–113, § 1000(a)(6) [title V, § 541(b)(2), (3)], added cl. (iii) and redesignated former cl. (iii) as (iv). Subsec. (h)(4)(F). Pub. L. 106–113, § 1000(a)(6) [title IV, § 407(a)(1)], designated existing provisions as cl. (i), in- serted heading, realigned margins, and added cl. (ii). Subsec. (h)(4)(F)(i). Pub. L. 106–113, § 1000(a)(6) [title IV, § 407(b)(1)], inserted ‘‘(or, 130 percent of such number in the case of a hospital located in a rural area)’’ after ‘‘may not exceed the number’’. Subsec. (h)(4)(H)(iv). Pub. L. 106–113, § 1000(a)(6) [title IV, § 407(c)(1)], added cl. (iv). Subsec. (h)(5)(F). Pub. L. 106–113, § 1000(a)(6) [title III, § 312(a)(1)], substituted ‘‘Subject to subparagraph (G)(v), the initial residency period’’ for ‘‘The initial residency period’’ in concluding provisions. Subsec. (h)(5)(G)(i). Pub. L. 106–113, § 1000(a)(6) [title III, § 312(a)(2)(A)], substituted ‘‘(iv), and (v)’’ for ‘‘and (iv)’’. Subsec. (h)(5)(G)(v). Pub. L. 106–113, § 1000(a)(6) [title III, § 312(a)(2)(B)], added cl. (v). Subsec. (j)(1)(D). Pub. L. 106–113, § 1000(a)(6) [title I, § 125(a)(1)], struck out ‘‘, day of inpatient hospital serv- ices, or other unit of payment defined by the Sec- retary’’ before period at end. Subsec. (j)(1)(E). Pub. L. 106–113, § 1000(a)(6) [title I, § 125(a)(3)], added subpar. (E). Subsec. (j)(2)(A)(i). Pub. L. 106–113, § 1000(a)(6) [title I, § 125(a)(2)], amended cl. (i) generally. Prior to amend- ment, cl. (i) read as follows: ‘‘classes of patients of re- habilitation facilities (each in this subsection referred to as a ‘case mix group’), based on such factors as the Secretary deems appropriate, which may include im- pairment, age, related prior hospitalization, comorbidities, and functional capability of the patient; and’’. Subsec. (l). Pub. L. 106–113, § 1000(a)(6) [title V, § 541(a)], added subsec. (l). 1997—Subsec. (b)(1). Pub. L. 105–33, § 4421(b)(1), in- serted ‘‘and other than a rehabilitation facility de- scribed in subsection (j)(1)’’ after ‘‘subsection (d)(1)(B)’’ in introductory provisions. Pub. L. 105–33, § 4415(b)(1), inserted ‘‘plus the amount, if any, provided under paragraph (2)’’ before ‘‘except that in no case’’ in concluding provisions. Subsec. (b)(1)(A). Pub. L. 105–33, § 4415(a), added cls. (i) and (ii) and concluding provisions and struck out former cls. (i) and (ii) and former concluding provisions which read as follows: ‘‘(i) 50 percent of the amount by which the target amount exceeds the amount of the operating costs, or ‘‘(ii) 5 percent of the target amount, whichever is less; or’’. Subsec. (b)(1)(B). Pub. L. 105–33, § 4415(c)(3), added sub- par. (B). Former subpar. (B) redesignated (C). Subsec. (b)(1)(C). Pub. L. 105–33, § 4415(c)(1), (2), redes- ignated subpar. (B) as (C) and substituted ‘‘greater than 110 percent of the target amount’’ for ‘‘greater than the target amount’’ and ‘‘exceed 110 percent of the target amount’’ for ‘‘exceed the target amount’’. Subsec. (b)(2). Pub. L. 105–33, § 4415(b)(2), added par. (2). Subsec. (b)(3)(A). Pub. L. 105–33, §§ 4413(a)(1), 4416(2), in introductory provisions, substituted ‘‘subparagraph (C) and succeeding subparagraph,’’ for ‘‘subparagraphs (C), (D), and (E),’’ and inserted ‘‘and in paragraph (7)(A)(ii),’’ before ‘‘for purposes of this subsection’’. Subsec. (b)(3)(B)(i). Pub. L. 105–33, § 4421(b)(2), inserted ‘‘and subsection (j)’’ after ‘‘For purposes of subsection (d)’’ in introductory provisions. Subsec. (b)(3)(B)(i)(XIII) to (XVII). Pub. L. 105–33, § 4401(a), added subcls. (XIII) to (XVII) and struck out former subcl. (XIII) which read as follows: ‘‘for fiscal year 1998 and each subsequent fiscal year, the market basket percentage increase for hospitals in all areas.’’ Subsec. (b)(3)(B)(ii)(VI) to (VIII). Pub. L. 105–33, § 4411(a)(1), added subcls. (VI) and (VII) and redesig- nated former subcl. (VI) as (VIII). Subsec. (b)(3)(B)(vi). Pub. L. 105–33, § 4411(a)(2), added cl. (vi). Subsec. (b)(3)(D). Pub. L. 105–33, § 4204(a)(2)(A), sub- stituted ‘‘September 30, 1994, and for cost reporting pe- riods beginning on or after October 1, 1997, and before October 1, 2001,’’ for ‘‘September 30, 1994,’’ in introduc- tory provisions. Subsec. (b)(3)(D)(iv). Pub. L. 105–33, § 4204(a)(2)(B)–(D), added cl. (iv). Subsec. (b)(3)(F), (G). Pub. L. 105–33, § 4413(a)(2), (b), added subpars. (F) and (G). Subsec. (b)(3)(H). Pub. L. 105–33, § 4414, added subpar. (H). Subsec. (b)(4)(A)(i). Pub. L. 105–33, § 4419(a)(1), in first sentence, substituted ‘‘The Secretary shall provide for an exception and adjustment to (and in the case of a hospital or unit described in subsection (d)(1)(B)(iii), may provide an exemption from)’’ for ‘‘The Secretary shall provide for an exemption from, or an exception and adjustment to,’’. Subsec. (b)(4)(A)(ii). Pub. L. 105–33, § 4411(b), inserted at end ‘‘In making such reductions, the Secretary shall treat the applicable update factor described in para- graph (3)(B)(vi) for a fiscal year as being equal to the market basket percentage for that year.’’ Subsec. (b)(7). Pub. L. 105–33, § 4416(1), added par. (7). Subsec. (d)(1)(B). Pub. L. 105–33, § 4417(a)(1), inserted at end ‘‘A hospital that was classified by the Secretary on or before September 30, 1995, as a hospital described in clause (iv) shall continue to be so classified notwith- standing that it is located in the same building as, or on the same campus as, another hospital.’’ Subsec. (d)(1)(B)(iv). Pub. L. 105–33, § 4417(b)(1), des- ignated existing provisions as subcl. (I) and added subcl. (II). Subsec. (d)(1)(B)(v). Pub. L. 105–33, § 4418(a)(1), des- ignated existing provisions as subcl. (I), substituted ‘‘, or’’ for semicolon at end, and added subcl. (II). Subsec. (d)(1)(E). Pub. L. 105–33, § 4418(a)(2), added sub- par. (E). Page 3888 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(2)(C)(i). Pub. L. 105–33, § 4621(a)(2), inserted at end ‘‘except that the Secretary shall not take into account any reduction in the amount of additional pay- ments under paragraph (5)(B)(ii) resulting from the amendment made by section 4621(a)(1) of the Balanced Budget Act of 1997,’’. Subsec. (d)(5)(A)(ii). Pub. L. 105–33, § 4405(c), sub- stituted ‘‘exceed the sum of the applicable DRG pro- spective payment rate plus any amounts payable under subparagraphs (B) and (F)’’ for ‘‘exceed the applicable DRG prospective payment rate’’. Subsec. (d)(5)(B)(i)(I). Pub. L. 105–33, § 4405(a), inserted ‘‘, for cases qualifying for additional payment under subparagraph (A)(i),’’ before ‘‘the amount paid to the hospital’’. Subsec. (d)(5)(B)(ii). Pub. L. 105–33, § 4621(a)(1), amend- ed cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘For purposes of clause (i)(II), the indirect teaching adjustment factor for discharges occurring on or after October 1, 1988, is equal to 1.89 × (((1 + r) to the nth power) ¥1), where ‘r’ is the ratio of the hospital’s full-time equivalent interns and residents to beds and ‘n’ equals .405.’’ Subsec. (d)(5)(B)(iv). Pub. L. 105–33, § 4621(b)(2), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows: ‘‘In determining such adjustment, the Secretary shall continue to count interns and residents assigned to outpatient services of the hospital or pro- viding services at any entity receiving a grant under section 254c of this title that is under the ownership or control of the hospital (if the hospital incurs all, or substantially all, of the costs of the services furnished by such interns and residents) as part of the calcula- tion of the full-time-equivalent number of interns and residents.’’ Subsec. (d)(5)(B)(v) to (viii). Pub. L. 105–33, § 4621(b)(1), added cls. (v) to (viii). Subsec. (d)(5)(D)(iii)(III). Pub. L. 105–33, § 4201(c)(4)(A), inserted ‘‘as in effect on September 30, 1997’’ before pe- riod at end. Subsec. (d)(5)(D)(v). Pub. L. 105–33, § 4201(c)(4)(B), in- serted ‘‘as in effect on September 30, 1997’’ after ‘‘sec- tion 1395i–4(i)(1) of this title’’ and substituted ‘‘(as de- fined in section 1395i–4(d) of this title)’’ for ‘‘(as defined in section 1395i–4(g) of this title)’’. Subsec. (d)(5)(F)(i). Pub. L. 105–33, § 4403(a)(1), inserted ‘‘and before October 1, 1997’’ after ‘‘May 1, 1986’’ in in- troductory provisions. Subsec. (d)(5)(F)(ii). Pub. L. 105–33, § 4403(a)(2), sub- stituted ‘‘Subject to clause (ix), the amount’’ for ‘‘The amount’’. Subsec. (d)(5)(F)(ii)(I). Pub. L. 105–33, § 4405(b), in- serted ‘‘, for cases qualifying for additional payment under subparagraph (A)(i),’’ before ‘‘the amount paid to the hospital’’. Subsec. (d)(5)(F)(ix). Pub. L. 105–33, § 4403(a)(3), added cl. (ix). Subsec. (d)(5)(G)(i), (ii)(II). Pub. L. 105–33, § 4204(a)(1), substituted ‘‘October 1, 1994, or beginning on or after October 1, 1997, and before October 1, 2001,’’ for ‘‘Octo- ber 1, 1994,’’. Subsec. (d)(5)(I)(ii). Pub. L. 105–33, § 4407(1), inserted ‘‘not taking in account the effect of subparagraph (J),’’ after ‘‘in a fiscal year,’’. Subsec. (d)(5)(J). Pub. L. 105–33, § 4407(2), added sub- par. (J). Subsec. (d)(6). Pub. L. 105–33, § 4644(a)(1), substituted ‘‘August 1’’ for ‘‘September 1’’. Subsec. (d)(9)(A). Pub. L. 105–33, § 4406(1), struck out ‘‘in a fiscal year beginning on or after October 1, 1987,’’ after ‘‘inpatient hospital discharges’’ in introductory provisions. Subsec. (d)(9)(A)(i). Pub. L. 105–33, § 4406(2), sub- stituted ‘‘for discharges beginning on or after October 1, 1997, 50 percent (and for discharges between October 1, 1987, and September 30, 1997, 75 percent)’’ for ‘‘75 per- cent’’. Subsec. (d)(9)(A)(ii). Pub. L. 105–33, § 4406(3), sub- stituted ‘‘for discharges beginning in a fiscal year be- ginning on or after October 1, 1997, 50 percent (and for discharges between October 1, 1987 and September 30, 1997, 25 percent)’’ for ‘‘25 percent’’. Subsec. (d)(10)(C)(ii). Pub. L. 105–33, § 4644(c)(1), sub- stituted ‘‘the first day of the 13-month period ending on September 30 of the preceding fiscal year.’’ for ‘‘the first day of the preceding fiscal year.’’ Subsec. (d)(10)(D)(iii), (iv). Pub. L. 105–33, § 4202(a), added cl. (iii) and redesignated former cl. (iii) as (iv). Subsec. (d)(11). Pub. L. 105–33, § 4622, added par. (11). Subsec. (e)(2). Pub. L. 105–33, § 4022(b)(1)(A)(i), struck out par. (2) which related to appointment, composition, and responsibilities of the Prospective Payment Assess- ment Commission. Subsec. (e)(3). Pub. L. 105–33, § 4022(b)(1)(A)(ii), redes- ignated subpar. (B) as par. (3) and struck out subpar. (A) which read as follows: ‘‘The Commission, not later than the March 1 before the beginning of each fiscal year (beginning with fiscal year 1986), shall report its recommendations to Congress on an appropriate change factor which should be used for inpatient hospital serv- ices for discharges in that fiscal year, together with its general recommendations under paragraph (2)(B) re- garding the effectiveness and quality of health care de- livery systems in the United States.’’ Subsec. (e)(5)(A). Pub. L. 105–33, § 4644(b)(1)(A), sub- stituted ‘‘April 1’’ for ‘‘May 1’’. Subsec. (e)(5)(B). Pub. L. 105–33, § 4644(b)(1)(B), sub- stituted ‘‘August 1’’ for ‘‘September 1’’. Subsec. (e)(6). Pub. L. 105–33, § 4022(b)(1)(A)(i), struck out par. (6) which related to appointments, member- ship, responsibilities, compensation, access to records and information, audits, and appropriations concerning the Prospective Payment Assessment Commission. Subsec. (g)(1)(A). Pub. L. 105–33, § 4402, inserted at end ‘‘In addition to the reduction described in the preceding sentence, for discharges occurring on or after October 1, 1997, the Secretary shall apply the budget neutrality adjustment factor used to determine the Federal cap- ital payment rate in effect on September 30, 1995 (as de- scribed in section 412.352 of title 42 of the Code of Fed- eral Regulations), to (i) the unadjusted standard Fed- eral capital payment rate (as described in section 412.308(c) of that title, as in effect on September 30, 1997), and (ii) the unadjusted hospital-specific rate (as described in section 412.328(e)(1) of that title, as in ef- fect on September 30, 1997), and, for discharges occur- ring on or after October 1, 1997, and before September 30, 2002, reduce the rates described in clauses (i) and (ii) by 2.1 percent.’’ Subsec. (g)(3)(B). Pub. L. 105–33, § 4201(c)(1), sub- stituted ‘‘critical access’’ for ‘‘rural primary care’’. Subsec. (g)(4). Pub. L. 105–33, § 4412, added par. (4). Subsec. (h)(3)(B). Pub. L. 105–33, § 4625(b), inserted concluding provisions. Subsec. (h)(3)(D). Pub. L. 105–33, § 4624, added subpar. (D). Subsec. (h)(4)(F) to (H). Pub. L. 105–33, § 4623, added subpars. (F) to (H). Subsec. (h)(5)(G). Pub. L. 105–33, § 4627(a), substituted ‘‘Subject to clauses (ii), (iii), and (iv)’’ for ‘‘Subject to clauses (ii) and (iii)’’ in cl. (i) and added cl. (iv). Subsec. (h)(6). Pub. L. 105–33, § 4626(a), added par. (6). Subsec. (j). Pub. L. 105–33, § 4421(a), added subsec. (j). Subsec. (k). Pub. L. 105–33, § 4625(a), added subsec. (k). 1994—Subsec. (a)(4). Pub. L. 103–432, § 110(a), inserted ‘‘(or, in the case of a hospital that is not a subsection (d) hospital, during the 1 day)’’ after ‘‘3 days’’. Subsec. (b)(3)(B)(iv)(II). Pub. L. 103–432, § 105(b), sub- stituted ‘‘(adjusted to exclude any portion of a cost re- porting period beginning during fiscal year 1993 for which the applicable percentage increase is determined under subparagraph (I))’’ for ‘‘(taking into account any portion of the 12-month cost reporting period beginning during fiscal year 1993 that occurred during fiscal year 1994)’’. Subsec. (b)(3)(D). Pub. L. 103–432, § 105(a)(2), sub- stituted ‘‘September 30, 1994’’ for ‘‘March 31, 1993’’ in in- troductory provisions. Subsec. (d)(3)(A)(iii). Pub. L. 103–432, § 101(c), inserted at end ‘‘For discharges occurring on or after October 1, Page 3889 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 1994, the Secretary shall adjust the ratio of the labor portion to non-labor portion of each average standard- ized amount to equal such ratio for the national aver- age of all standardized amounts.’’ Subsec. (d)(5)(B)(ii). Pub. L. 103–432, § 110(c), sub- stituted ‘‘October 1, 1988’’ for ‘‘May 1, 1986’’. Subsec. (d)(5)(D)(iii)(III). Pub. L. 103–432, § 102(b)(1)(B)(i), substituted ‘‘that is located in a rural area and designated’’ for ‘‘that is designated’’. Subsec. (d)(5)(D)(v). Pub. L. 103–432, § 102(b)(1)(B)(ii), substituted ‘‘in the case of a hospital located in a rural area and designated’’ for ‘‘in the case of a hospital des- ignated’’. Subsec. (d)(5)(G)(ii)(I). Pub. L. 103–432, § 105(a)(1), sub- stituted ‘‘the 36-month period beginning with the first day of the cost reporting period that begins’’ for ‘‘the first 3 12-month cost reporting periods that begin’’. Subsec. (d)(5)(I). Pub. L. 103–432, § 109, designated ex- isting provisions as cl. (i) and added cl. (ii). Subsec. (d)(8)(C)(iv). Pub. L. 103–432, § 101(b)(1)(A), substituted ‘‘paragraph (10)’’ for ‘‘paragraph (1)’’. Subsec. (d)(8)(C)(v). Pub. L. 103–432, § 101(b)(1)(B), added cl. (v). Subsec. (d)(10)(C)(i)(II). Pub. L. 103–432, § 101(b)(2)(A), substituted ‘‘the factor used to adjust the DRG pro- spective payment rate for area differences in hospital wage levels that applies’’ for ‘‘the area wage index ap- plicable’’. Subsec. (d)(10)(D)(i)(I). Pub. L. 103–432, § 101(a)(1), in- serted ‘‘(to the extent the Secretary determines appro- priate)’’ after ‘‘taking into account’’. Subsec. (d)(10)(D)(ii), (iii). Pub. L. 103–432, § 101(b)(2)(B), added cl. (ii) and redesignated former cl. (ii) as (iii). Subsec. (e)(6)(B). Pub. L. 103–432, § 108, substituted ‘‘health facility management, reimbursement of health facilities or other providers of services which reflect the scope of the Commission’s responsibilities’’ for ‘‘hospital reimbursement, hospital financial manage- ment’’. Subsec. (h)(5)(E). Pub. L. 103–432, § 153(a), inserted ‘‘or any successor examination’’ after ‘‘Medical Sciences’’. 1993—Subsec. (b)(3)(B)(i)(IX). Pub. L. 103–66, § 13501(a)(1)(A), substituted ‘‘percentage increase minus 2.5 percentage points for hospitals’’ for ‘‘percentage in- crease for hospitals’’ and ‘‘percentage increase minus 1.0 percentage point’’ for ‘‘percentage increase plus 1.5 percentage points’’. Subsec. (b)(3)(B)(i)(X). Pub. L. 103–66, § 13501(a)(1)(B), substituted ‘‘percentage increase minus 2.5 percentage points for hospitals’’ for ‘‘percentage increase for hos- pitals’’ and struck out ‘‘and’’ at end. Subsec. (b)(3)(B)(i)(XI). Pub. L. 103–66, § 13501(a)(1)(C), struck out ‘‘and each subsequent fiscal year’’ after ‘‘1996’’, inserted ‘‘minus 2.0 percentage points’’ after ‘‘percentage increase’’, and substituted a comma for pe- riod at end. Subsec. (b)(3)(B)(i)(XII), (XIII). Pub. L. 103–66, § 13501(a)(1)(D), added subcls. (XII) and (XIII). Subsec. (b)(3)(B)(ii). Pub. L. 103–66, § 13501(a)(2)(B)(i), struck out ‘‘, (C), (D),’’ after ‘‘subparagraphs (A)’’. Subsec. (b)(3)(B)(ii)(III) to (VI). Pub. L. 103–66, § 13502(a)(1), struck out ‘‘and’’ at end of subcl. (III), in subcl. (IV), substituted ‘‘a subsequent fiscal year end- ing on or before September 30, 1993,’’ for ‘‘subsequent fiscal years’’ and a comma for the period at end, and added subcls. (V) and (VI). Subsec. (b)(3)(B)(iv). Pub. L. 103–66, § 13501(a)(2)(A), added cl. (iv). Subsec. (b)(3)(B)(v). Pub. L. 103–66, § 13502(a)(2), added cl. (v). Subsec. (b)(3)(C)(i)(II). Pub. L. 103–66, § 13501(a)(2)(B)(ii), struck out ‘‘or’’ at end. Subsec. (b)(3)(C)(ii). Pub. L. 103–66, § 13501(a)(2)(B)(iii), substituted ‘‘period beginning before fiscal year 1994, the target’’ for ‘‘period, the target’’, ‘‘subparagraph (B)(iv)’’ for ‘‘subparagraph (B)(ii)’’, and a comma for pe- riod at end. Subsec. (b)(3)(C)(iii), (iv). Pub. L. 103–66, § 13501(a)(2)(B)(iv), added cls. (iii) and (iv). Subsec. (b)(3)(D)(ii). Pub. L. 103–66, § 13501(a)(2)(B)(v), substituted ‘‘period beginning before fiscal year 1994, the target’’ for ‘‘period, the target’’, ‘‘subparagraph (B)(iv)’’ for ‘‘subparagraph (B)(ii)’’, and ‘‘, and’’ for pe- riod at end. Subsec. (b)(3)(D)(iii). Pub. L. 103–66, § 13501(a)(2)(B)(vi), added cl. (iii). Subsec. (b)(4)(A). Pub. L. 103–66, § 13502(b), designated existing provisions as cl. (i) and added cl. (ii). Subsec. (d)(1)(A)(iii). Pub. L. 103–66, § 13501(f), amend- ed cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: ‘‘beginning on or after April 1, 1988, and end- ing on September 30, 1993,, the sum of (I) 85 percent of the national adjusted DRG prospective payment rate determined under paragraph (3) for such discharges, and (II) 15 percent of the regional adjusted DRG pro- spective payment rate determined under such para- graph.’’ Subsec. (d)(5)(A)(i). Pub. L. 103–66, § 13501(c)(1), sub- stituted ‘‘For discharges occurring during fiscal years ending on or before September 30, 1997, the Secretary’’ for ‘‘The Secretary’’. Subsec. (d)(5)(A)(ii). Pub. L. 103–66, § 13501(c)(2), sub- stituted ‘‘, or, for discharges in fiscal years beginning on or after October 1, 1994, exceed the applicable DRG prospective payment rate plus a fixed dollar amount determined by the Secretary.’’ for period at end. Subsec. (d)(5)(A)(iii). Pub. L. 103–66, § 13501(c)(3), sub- stituted ‘‘shall (except as payments under clause (i) are required to be reduced to take into account the require- ments of clause (v)) approximate’’ for ‘‘shall approxi- mate’’. Subsec. (d)(5)(A)(v), (vi). Pub. L. 103–66, § 13501(c)(4), added cls. (v) and (vi). Subsec. (d)(5)(B)(iv). Pub. L. 103–66, § 13506, inserted ‘‘or providing services at any entity receiving a grant under section 254c of this title that is under the owner- ship or control of the hospital (if the hospital incurs all, or substantially all, of the costs of the services fur- nished by such interns and residents)’’ after ‘‘the hos- pital’’. Subsec. (d)(5)(G)(i). Pub. L. 103–66, § 13501(e)(1)(A), which directed amendment of subsec. (d)(5)(G) in clause (i) in the matter preceding subclause (I), by striking ‘‘ending on or before March 31, 1993,’’ and all that fol- lows and inserting ‘‘before October 1, 1994, in the case of a subsection (d) hospital which is a medicare-depend- ent, small rural hospital, payment under paragraph (1)(A) shall be equal to the sum of the amount deter- mined under clause (ii) and the amount determined under paragraph (1)(A)(iii).’’, was executed by sub- stituting the new language for ‘‘ending on or before March 31, 1993, with respect to a subsection (d) hospital which is a medicare-dependent, small rural hospital, payment under paragraph (1)(A) shall be— ‘‘(I) an amount based on 100 percent of the hos- pital’s target amount for the cost reporting period, as defined in subsection (b)(3)(D) of this section, or ‘‘(II) the amount determined under paragraph (1)(A)(iii), whichever results in the greater payment to the hos- pital.’’ to reflect the probable intent of Congress. Subsec. (d)(5)(G)(ii) to (iv). Pub. L. 103–66, § 13501(e)(1)(B), (C), added cl. (ii) and redesignated former cls. (ii) and (iii) as (iii) and (iv), respectively. Subsec. (d)(8)(C)(iv). Pub. L. 103–66, § 13501(b)(1), added cl. (iv). Subsec. (g)(1)(A). Pub. L. 103–66, § 13501(a)(3), inserted at end ‘‘For discharges occurring after September 30, 1993, the Secretary shall reduce by 7.4 percent the unadjusted standard Federal capital payment rate (as described in 42 CFR 412.308(c), as in effect on August 10, 1993) and shall (for hospital cost reporting periods be- ginning on or after October 1, 1993) redetermine which payment methodology is applied to the hospital under such system to take into account such reduction.’’ Subsec. (h)(2)(D). Pub. L. 103–66, § 13563(a)(1), des- ignated existing provisions as cl. (i), substituted ‘‘Ex- cept as provided in clause (ii), for each’’ for ‘‘For each’’, and added cl. (ii). Page 3890 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (h)(5)(F). Pub. L. 103–66, § 13563(b)(1)(A), struck out ‘‘plus one year’’ after ‘‘board eligibility’’ in introductory provisions. Subsec. (h)(5)(F)(ii). Pub. L. 103–66, § 13563(b)(1)(B), in- serted ‘‘or a preventive medicine residency or fellow- ship program’’ after ‘‘fellowship program’’. Subsec. (h)(5)(H), (I). Pub. L. 103–66, § 13563(a)(2), added subpar. (H) and redesignated former subpar. (H) as (I). Subsec. (h)(5)(J). Pub. L. 103–66, § 13563(c)(1), added subpar. (J). 1990—Subsec. (a)(4). Pub. L. 101–508, § 4003(a), struck out period at end of first sentence and inserted ‘‘, and includes the costs of all services for which payment may be made under this subchapter that are provided by the hospital (or by an entity wholly owned or oper- ated by the hospital) to the patient during the 3 days immediately preceding the date of the patient’s admis- sion if such services are diagnostic services (including clinical diagnostic laboratory tests) or are other serv- ices related to the admission (as defined by the Sec- retary).’’ Subsec. (b)(1)(B)(ii). Pub. L. 101–508, § 4005(a)(1), added cl. (ii) and struck out former cl. (ii) which read as fol- lows: ‘‘in the case of cost reporting periods beginning on or after October 1, 1982, and before October 1, 1984, 25 percent of the amount by which the amount of the operating costs exceeds the target amount;’’. Subsec. (b)(3)(B)(i)(V). Pub. L. 101–508, § 4002(a)(1)(A), struck out ‘‘and’’ after semicolon at end. Subsec. (b)(3)(B)(i)(VI). Pub. L. 101–508, § 4002(c)(1)(A), substituted ‘‘in a large urban or other urban area, and the market basket percentage increase minus 0.7 per- centage point for hospitals located in a rural area’’ for ‘‘in all areas’’. Pub. L. 101–508, § 4002(a)(1)(C), added subcl. (VI). Former subcl. (VI) redesignated (IX). Pub. L. 101–508, § 4002(a)(1)(B)(i), substituted ‘‘1994’’ for ‘‘1991’’. Subsec. (b)(3)(B)(i)(VII). Pub. L. 101–508, § 4002(c)(1)(B), substituted ‘‘in a large urban or other urban area, and the market basket percentage increase minus 0.6 per- centage point for hospitals located in a rural area’’ for ‘‘in all areas’’. Pub. L. 101–508, § 4002(a)(1)(C), added subcl. (VII). Subsec. (b)(3)(B)(i)(VIII). Pub. L. 101–508, § 4002(c)(1)(C), substituted ‘‘in a large urban or other urban area, and the market basket percentage increase minus 0.55 for hospitals located in a rural area,’’ for ‘‘in all areas, and’’. Pub. L. 101–508, § 4002(a)(1)(C), added subcl. (VIII). Subsec. (b)(3)(B)(i)(IX). Pub. L. 101–508, § 4002(c)(1)(E), added subcl. (IX). Former subcl. (IX) redesignated (XI). Pub. L. 101–508, § 4002(c)(1)(D)(i), substituted ‘‘1996’’ for ‘‘1994’’. Pub. L. 101–508, § 4002(a)(1)(B)(ii), redesignated subcl. (VI) as (IX). Subsec. (b)(3)(B)(i)(X). Pub. L. 101–508, § 4002(c)(1)(E), added subcl. (X). Subsec. (b)(3)(B)(i)(XI). Pub. L. 101–508, § 4002(c)(1)(D)(ii), redesignated subcl. (IX) as (XI). Subsec. (b)(3)(B)(ii). Pub. L. 101–508, § 4002(c)(2)(A)(i), substituted ‘‘(A), (C), (D), and (E),’’ for ‘‘(A) and (E),’’ in introductory provisions. Subsec. (b)(3)(C)(ii), (D)(ii). Pub. L. 101–508, § 4002(c)(2)(A)(ii), substituted ‘‘subparagraph (B)(ii)’’ for ‘‘subparagraph (B)(i)’’. Subsec. (b)(4)(A). Pub. L. 101–508, § 4005(c)(1)(B), in- serted at end ‘‘The Secretary shall announce a decision on any request for an exemption, exception, or adjust- ment under this paragraph not later than 180 days after receiving a completed application from the inter- mediary for such exemption, exception, or adjustment, and shall include in such decision a detailed expla- nation of the grounds on which such request was ap- proved or denied.’’ Subsec. (b)(4)(B), (C). Pub. L. 101–508, § 4005(c)(2), added subpar. (B) and redesignated former subpar. (B) as (C). Subsec. (c)(4). Pub. L. 101–508, § 4008(f)(1), substituted ‘‘payments under the State system as compared to ag- gregate payments which would have been made under the national system since’’ for ‘‘rate of increase from’’ in last sentence. Subsec. (d)(1)(A)(iii). Pub. L. 101–508, § 4002(e)(1), sub- stituted ‘‘beginning on or after April 1, 1988, and ending on September 30, 1993,’’ for ‘‘beginning on or after Octo- ber 1, 1987, is equal to the national adjusted DRG pro- spective payment rate determined under paragraph (3) for such discharges, or, if the average standardized amount (described in clause (i)(I) or clause (ii)(I) of paragraph (3)(D)) for hospitals within the region of, and in the same rural, large urban, or other urban area as, the hospital is greater than the average standardized amount (described in the respective clause) for hos- pitals within the United States in that type of area for discharges occurring during the period beginning on April 1, 1988, and ending on October 20, 1990’’. Pub. L. 101–508, § 4002(c)(2)(B)(i), substituted ‘‘large urban or other area’’ for ‘‘rural, large urban, or other urban area’’ in text of cl. (iii)(II) as amended by Pub. L. 103–66, § 13501(f). See 1993 Amendment note above. Pub. L. 101–403 substituted ‘‘October 20, 1990’’ for ‘‘September 30, 1990’’. Subsec. (d)(2)(C)(iv). Pub. L. 101–508, § 4002(b)(4)(B), substituted ‘‘1989 or the enactment of section 4002(b) of the Omnibus Budget Reconciliation Act of 1990.’’ for ‘‘1989.’’ Pub. L. 101–508, § 4002(b)(4)(A), struck out period at end and inserted ‘‘, except that the Secretary shall not exclude additional payments under such paragraph made as a result of the enactment of section 6003(c) of the Omnibus Budget Reconciliation Act of 1989.’’ Pub. L. 101–508, § 4002(b)(3)(A), struck out ‘‘and before October 1, 1995,’’ after ‘‘October 1, 1986,’’. Subsec. (d)(3)(A)(ii). Pub. L. 101–508, § 4002(c)(2)(B)(ii)(I), substituted ‘‘and ending on or be- fore September 30, 1994, the Secretary’’ for ‘‘the Sec- retary’’. Subsec. (d)(3)(A)(iii) to (v). Pub. L. 101–508, § 4002(c)(2)(B)(ii)(II), (III), added cls. (iii) and (iv) and re- designated former cl. (iii) as (v). Subsec. (d)(3)(B). Pub. L. 101–508, § 4002(c)(2)(B)(iii), substituted ‘‘by a factor equal to the proportion of pay- ments under this subsection (as estimated by the Sec- retary) based on DRG prospective payment amounts which are additional payments described in paragraph (5)(A) (relating to outlier payments).’’ for ‘‘for hos- pitals located in an urban area and for hospitals lo- cated in a rural area by a proportion equal to the pro- portion (estimated by the Secretary) of the amount of payments under this subsection based on DRG prospec- tive payment amounts which are additional payments described in paragraph (5)(A) (relating to outlier pay- ments) for hospitals located in such respective area.’’ Subsec. (d)(3)(C)(ii). Pub. L. 101–508, § 4002(b)(3)(B)(B), substituted ‘‘occurring on or after October 1, 1986,’’ through the end of cl. (ii) for ‘‘occurring—’’ and subcls. (I) and (II) which read as follows: ‘‘(I) on or after October 1, 1986, and before October 1, 1995, of an amount equal to the estimated reduction in the payment amounts under paragraph (5)(B) that would have resulted from the enactment of the amend- ments made by section 9104 of the Medicare and Med- icaid Budget Reconciliation Amendments of 1985 and by section 4003(a)(1) of the Omnibus Budget Reconciliation Act of 1987 if the factor described in clause (ii)(II) of paragraph (5)(B) were applied for discharges occurring during such period instead of the factor described in clause (ii)(I) of that paragraph, and ‘‘(II) on or after October 1, 1995, of an amount equal to the estimated reduction in the payment amounts under paragraph (5)(B) for those discharges that has re- sulted from the enactment of the amendments made by section 9104 of the Medicare and Medicaid Budget Rec- onciliation Amendments of 1985 and by section 4003(a)(1) of the Omnibus Budget Reconciliation Act of 1987.’’ Subsec. (d)(3)(D)(i). Pub. L. 101–508, § 4002(c)(2)(B)(iv)(I), which directed amendment of cl. (i) by substituting ‘‘a large urban area’’ for ‘‘an urban area Page 3891 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww (or,’’ and all that follows through ‘‘area),’’ was exe- cuted by making the substitution for ‘‘an urban area (or, for discharges occurring on or after April 1, 1988, in a large urban area or other urban area)’’ to reflect the probable intent of Congress. Subsec. (d)(3)(D)(i)(I). Pub. L. 101–508, § 4002(c)(2)(B)(iv)(II), substituted ‘‘a large urban area’’ for ‘‘an urban area’’. Subsec. (d)(3)(D)(ii). Pub. L. 101–508, § 4002(c)(2)(B)(v), substituted ‘‘other areas’’ for ‘‘a rural area’’ in intro- ductory provisions and in subcl. (I). Subsec. (d)(4)(D). Pub. L. 101–508, § 4002(g)(2)(A), struck out subpar. (D) which read as follows: ‘‘The Commission (established under subsection (e)(2) of this section) shall consult with and make recommendations to the Secretary with respect to the need for adjust- ments under subparagraph (C), based upon its evalua- tion of scientific evidence with respect to new prac- tices, including the use of new technologies and treat- ment modalities. The Commission shall report to the Congress with respect to its evaluation of any adjust- ments made by the Secretary under subparagraph (C).’’ Subsec. (d)(5)(B)(ii). Pub. L. 101–508, § 4002(b)(3)(B)(A), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘For purposes of clause (i)(II), the indi- rect teaching adjustment factor for discharges occur- ring— ‘‘(I) on or after May 1, 1986, and before October 1, 1995, is equal to 1.89×((1+r).405¥1), or ‘‘(II) on or after October 1, 1995, is equal to 1.43×((1+r).5795¥1), where ‘r’ is the ratio of the hospital’s full-time equiva- lent interns and residents to beds.’’ Subsec. (d)(5)(D)(iii). Pub. L. 101–508, § 4008(m)(2)(A), substituted ‘‘For purposes of this subchapter, the term’’ for ‘‘The term’’ at beginning. Subsec. (d)(5)(F)(i). Pub. L. 101–508, § 4002(b)(3)(A), struck out ‘‘and before October 1, 1995,’’ after ‘‘May 1, 1986,’’. Subsec. (d)(5)(F)(iii). Pub. L. 101–508, § 4002(b)(2), sub- stituted ‘‘35 percent’’ for ‘‘30 percent’’. Subsec. (d)(5)(F)(vii)(I). Pub. L. 101–508, § 4002(b)(1)(A), substituted ‘‘greater than 20.2—’’ and subdivs. (a) to (d) for ‘‘greater than 20.2, (P¥20.2)(.65)+5.62, or’’. Subsec. (d)(5)(F)(vii)(II). Pub. L. 101–508, § 4002(b)(1)(B), substituted ‘‘hospital—’’ and subdivs. (a) to (c) for ‘‘hospital, (P¥15)(.6)+2.5,’’. Subsec. (d)(8)(C)(i). Pub. L. 101–508, § 4002(h)(1)(A)(i), substituted ‘‘area, or by treating hospitals located in one urban area as being located in another urban area—’’ for ‘‘area—’’. Subsec. (d)(8)(C)(i)(II). Pub. L. 101–508, § 4002(h)(1)(A)(ii), amended subcl. (II) generally. Prior to amendment, subcl. (II) read as follows: ‘‘reduces the wage index for that urban area by more than 1 percent- age point (as applied under this subsection), the Sec- retary shall calculate and apply such wage index under this subsection separately to hospitals located in such urban area (excluding all the hospitals so treated) and to the hospitals so treated (as if each affected rural county were a separate urban area).’’ Subsec. (d)(8)(C)(ii) to (iv). Pub. L. 101–508, § 4002(h)(1)(A)(iii), (iv), redesignated cls. (iii) and (iv) as (ii) and (iii), respectively, and struck out former cl. (ii) which read as follows: ‘‘If the application of subpara- graph (B) or a decision of the Medicare Geographic Classification Review Board or the Secretary under paragraph (10), by reclassifying a county from a rural to an urban area or by reclassifying an urban county from one urban area to another urban area— ‘‘(I) reduces the wage index for the urban area with- in which the county or counties is reclassified by 1 percentage point or less (as applied under this sub- section), the Secretary, in calculating such wage index under this subsection, shall exclude those coun- ties so reclassified, or ‘‘(II) reduces the wage index for the urban area within which the county or counties is reclassified by more than 1 percentage point (as applied under this subsection), the Secretary shall calculate and apply such wage index under this subsection separately to hospitals located in such urban area (excluding all the hospitals so reclassified) and to hospitals located in the counties so reclassified (as if each affected county were a separate area).’’ Subsec. (d)(8)(D). Pub. L. 101–508, § 4002(c)(2)(B)(vi), struck out ‘‘for hospitals located in an urban area’’ after ‘‘determined under paragraph (3)’’ and struck out at end ‘‘The Secretary shall make such adjustment in payments under this section to hospitals located in rural areas as are necessary to assure that the aggre- gate of payments to rural hospitals not affected by sub- paragraphs (B) and (C) or a decision of the Medicare Ge- ographic Classification Review Board or the Secretary under paragraph (10) are not changed as a result of the application of subparagraphs (B) and (C) or a decision of the Medicare Geographic Classification Review Board or the Secretary under paragraph (10).’’ Subsec. (d)(10)(A). Pub. L. 101–508, § 4002(h)(2)(B)(i), substituted ‘‘Geographic’’ for ‘‘Geographical’’. Subsec. (d)(10)(B)(i). Pub. L. 101–508, § 4002(h)(2)(B)(ii), substituted ‘‘representative’’ for ‘‘representatives’’ and struck out ‘‘1 member shall be a member of the Pro- spective Payment Assessment Commission, and at least’’ after ‘‘At least’’. Subsec. (d)(10)(B)(ii). Pub. L. 101–508, § 4002(h)(2)(B)(iii), substituted ‘‘initial’’ for ‘‘all’’. Subsec. (d)(10)(C)(iii)(II). Pub. L. 101–508, § 4002(h)(2)(B)(iv), substituted ‘‘Appeal of decisions of the Board shall be subject to the provisions of section 557b of title 5’’ for ‘‘A decision of the Board shall be final unless the unsuccessful applicant appeals such de- cision to the Secretary by not later than 15 days after the Board renders its decision. The Secretary in consid- ering the appeal of an applicant shall receive no new evidence but shall consider the record as a whole as such record appeared before the Board’’ and substituted ‘‘after the date on which’’ for ‘‘after’’. Subsec. (e)(2). Pub. L. 101–508, § 4002(g)(1), designated existing provisions as subpar. (A) and added subpars. (B) and (C). Subsec. (e)(2)(A). Pub. L. 101–508, § 4002(g)(2)(B), sub- stituted ‘‘The Commission’’ for ‘‘In addition to car- rying out its functions under subsection (d)(4)(D) of this section, the Commission’’. Subsec. (e)(3)(A). Pub. L. 101–508, § 4002(g)(2)(C), sub- stituted ‘‘Congress’’ for ‘‘the Secretary’’ and inserted before period at end ‘‘, together with its general rec- ommendations under paragraph (2)(B) regarding the ef- fectiveness and quality of health care delivery systems in the United States’’. Subsec. (e)(4). Pub. L. 101–508, § 4002(g)(2)(D), des- ignated existing provisions as subpar. (A) and added subpar. (B). Subsec. (e)(5). Pub. L. 101–508, § 4002(g)(2)(E), sub- stituted ‘‘recommendations’’ for ‘‘recommendation’’ in subpars. (A) and (B) and inserted at end ‘‘To the extent that the Secretary’s recommendations under paragraph (4) differ from the Commission’s recommendations for that fiscal year, the Secretary shall include in the pub- lication referred to in subparagraph (A) an explanation of the Secretary’s grounds for not following the Com- mission’s recommendations.’’ Subsec. (e)(6)(G). Pub. L. 101–508, § 4002(g)(2)(F), redes- ignated cls. (ii) and (iii) as (i) and (ii), respectively, and struck out former cl. (i) which read as follows: ‘‘The Of- fice shall report annually to the Congress on the func- tioning and progress of the Commission and on the sta- tus of the assessment of medical procedures and serv- ices by the Commission.’’ Subsec. (g)(1)(A). Pub. L. 101–508, § 4001(b), inserted at end ‘‘Aggregate payments made under subsection (d) and this subsection during fiscal years 1992 through 1995 shall be reduced in a manner that results in a reduction (as estimated by the Secretary) in the amount of such payments equal to a 10 percent reduction in the amount of payments attributable to capital-related costs that would otherwise have been made during such fiscal year had the amount of such payments been based on reasonable costs (as defined in section 1395x(v) of this title).’’ Page 3892 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (g)(3)(A)(v). Pub. L. 101–508, § 4001(a), sub- stituted ‘‘September 30, 1991’’ for ‘‘September 30, 1990’’. Subsec. (g)(3)(B). Pub. L. 101–508, § 4001(c), substituted ‘‘subsection (d)(5)(D)(iii) or a rural primary care hos- pital (as defined in section 1395x(mm)(1) of this title)’’ for ‘‘subsection (d)(5)(D)(iii))’’. 1989—Subsec. (a)(4). Pub. L. 101–239, § 6011(a), struck out ‘‘or,’’ after ‘‘equity capital,’’ and substituted ‘‘Oc- tober 1, 1987), or costs with respect to administering blood clotting factors to individuals with hemophilia’’ for ‘‘October 1, 1987)’’. Subsec. (b)(3)(A). Pub. L. 101–239, § 6004(b)(1)(A), sub- stituted ‘‘(C), (D), and (E)’’ for ‘‘(C) and (D)’’ in intro- ductory provisions. Pub. L. 101–239, § 6003(f)(2)(i), substituted ‘‘subpara- graphs (C) and (D)’’ for ‘‘subparagraph (C)’’ in introduc- tory provisions. Pub. L. 101–239, § 6003(e)(1)(B)(i), substituted ‘‘(A) Ex- cept as provided in subparagraph (C), for purposes of this subsection’’ for ‘‘(A) For purposes of this sub- section’’ in introductory provisions. Subsec. (b)(3)(B)(i)(V), (VI). Pub. L. 101–239, § 6003(a)(1), added subcl. (V), redesignated former subcl. (V) as (VI), and substituted ‘‘fiscal year 1991’’ for ‘‘fis- cal year 1990’’ in subcl. (VI). Subsec. (b)(3)(B)(ii). Pub. L. 101–239, § 6004(b)(1)(B), substituted ‘‘For purposes of subparagraphs (A) and (E)’’ for ‘‘For purposes of subparagraph (A)’’ in intro- ductory provisions. Subsec. (b)(3)(C). Pub. L. 101–239, § 6003(e)(1)(B)(ii), added subpar. (C). Subsec. (b)(3)(D). Pub. L. 101–239, § 6003(f)(2)(ii), added subpar. (D). Subsec. (b)(3)(E). Pub. L. 101–239, § 6004(b)(1)(C), added subpar. (E). Subsec. (b)(4)(A). Pub. L. 101–239, § 6015(a), substituted ‘‘deems appropriate, including the assignment of a new base period which is more representative, as deter- mined by the Secretary, of the reasonable and nec- essary cost of inpatient services and’’ for ‘‘deems ap- propriate,’’. Subsec. (c)(4). Pub. L. 101–239, § 6022, substituted ‘‘the aggregate rate of increase from October 1, 1984, to the most recent date for which annual data are available’’ for ‘‘the aggregate payment or payments per inpatient admission or discharge during the three cost reporting periods beginning on or after October 1, 1983, after which such test, at the option of the Secretary, shall no longer apply, and such State systems shall be treated in the same manner as under other waivers’’ in second sentence. Subsec. (d)(1)(B)(v). Pub. L. 101–239, § 6004(a)(1), added cl. (v). Subsec. (d)(3)(E). Pub. L. 101–239, § 6003(h)(6), sub- stituted ‘‘October 1, 1990, and October 1, 1993 (and at least every 12 months thereafter)’’ for ‘‘October 1, 1990 (and at least every 36 months thereafter)’’ and inserted at end ‘‘Any adjustments or updates made under this subparagraph for a fiscal year (beginning with fiscal year 1991) shall be made in a manner that assures that the aggregate payments under this subsection in the fiscal year are not greater or less than those that would have been made in the year without such adjust- ment.’’ Subsec. (d)(4)(C). Pub. L. 101–239, § 6003(b), designated existing provisions as cl. (i) and added cls. (ii) to (iv). Subsec. (d)(5)(C). Pub. L. 101–239, § 6003(e)(1)(A)(i), (ii), (iv), (2)(B), redesignated former cl. (i)(I) as cl. (i), redes- ignated former cl. (i)(II) as cl. (ii) and substituted ‘‘clause (i)’’ for ‘‘subclause (I)’’ in three places, and re- designated former cls. (ii), (iii), and (iv) as subpars. (D), (I), and (H), respectively. Subsec. (d)(5)(D). Pub. L. 101–239, § 6003(e)(1)(A)(iv), amended former subpar. (C)(ii) generally, redesignating it as subpar. (D) and substituting cls. (i) to (iv) relating to payments to sole community hospitals for cost re- porting periods beginning on or after Apr. 1, 1990, for former single paragraph relating to payments to such hospitals for cost reporting periods beginning on or after Oct. 1, 1984. Subsec. (d)(5)(D)(iii)(III). Pub. L. 101–239, § 6003(g)(2)(A), added subcl. (III). Subsec. (d)(5)(D)(v). Pub. L. 101–239, § 6003(g)(2)(B), added cl. (v). Subsec. (d)(5)(E). Pub. L. 101–239, § 6003(e)(1)(A)(iii), re- designated subpar. (D) as (E). Subsec. (d)(5)(F)(iii). Pub. L. 101–239, § 6003(c)(3), sub- stituted ‘‘30 percent’’ for ‘‘25 percent’’. Subsec. (d)(5)(F)(iv)(I). Pub. L. 101–239, § 6003(c)(1)(A), substituted ‘‘the applicable formula described in clause (vii)’’ for ‘‘the following formula: (P¥15)(.5)+2.5, where ‘P’ is the hospital’s disproportionate patient percent- age (as defined in clause (vi))’’. Subsec. (d)(5)(F)(iv)(III). Pub. L. 101–239, § 6003(c)(2)(A)(ii), inserted ‘‘in subclause (IV) or (V) or’’ after ‘‘described’’. Subsec. (d)(5)(F)(iv)(IV) to (VI). Pub. L. 101–239, § 6003(c)(2)(A)(i), (iii), (iv), added subcls. (IV) to (VI). Subsec. (d)(5)(F)(v)(II) to (IV). Pub. L. 101–239, § 6003(c)(2)(B), added subcl. (II), redesignated former subcls. (II) and (III) as (III) and (IV), respectively, and substituted ‘‘area and is not described in subclause (II)’’ for ‘‘area’’ in subcl. (IV). Subsec. (d)(5)(F)(vii). Pub. L. 101–239, § 6003(c)(1)(B), added cl. (vii). Subsec. (d)(5)(F)(viii). Pub. L. 101–239, § 6003(c)(2)(C), added cl. (viii). Subsec. (d)(5)(G). Pub. L. 101–239, § 6003(f)(1), added subpar. (G). Subsec. (d)(5)(H). Pub. L. 101–239, § 6003(e)(1)(A)(i), re- designated subpar. (C)(iv) as subpar. (H). Subsec. (d)(5)(I). Pub. L. 101–239, § 6004(a)(2), struck out ‘‘(including exceptions and adjustments that may be appropriate with respect to hospitals involved exten- sively in treatment for and research on cancer)’’ after ‘‘deems appropriate’’. Pub. L. 101–239, § 6003(e)(1)(A)(ii), redesignated subpar. (C)(iii) as subpar. (I). Subsec. (d)(8)(C). Pub. L. 101–239, § 6003(h)(3), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘(i) If the application of subparagraph (B) or a deci- sion of the Medicare Geographic Classification Review Board or the Secretary under paragraph (10),, [sic] by treating hospitals located in a rural county or counties as being located in an urban area, reduces the wage index for that urban area (as applied under this sub- section), the Secretary shall calculate and apply such wage index under this subsection separately to hos- pitals located in such urban area (excluding all the hos- pitals so treated) and to the hospitals so treated (as if each affected rural county were a separate urban area). If the application of subparagraph (B) or a decision of the Medicare Geographic Classification Review Board or the Secretary under paragraph (10),, [sic] by treating the hospitals located in a rural county or counties as not being located in the rural area in a State, reduces the wage index for that rural area (as applied under this subsection), the Secretary shall calculate and apply such wage index under this subsection as if the hospitals so treated had not been excluded from cal- culation of the wage index for that rural area. ‘‘(ii) Clause (i) shall only apply to discharges occur- ring on or after October 1, 1989, and before October 1, 1991.’’ Subsec. (d)(8)(C)(i). Pub. L. 101–239, § 6003(h)(2), sub- stituted ‘‘subparagraph (B) or a decision of the Medi- care Geographic Classification Review Board or the Secretary under paragraph (10),’’ for ‘‘subparagraph (B)’’ in two places. Subsec. (d)(8)(C)(iv). Pub. L. 101–239, § 6003(h)(4), added cl. (iv). Subsec. (d)(8)(D). Pub. L. 101–239, § 6003(h)(2)(B), sub- stituted ‘‘(B) and (C) or a decision of the Medicare Geo- graphic Classification Review Board or the Secretary under paragraph (10)’’ for ‘‘(B) and (C)’’ in three places. Subsec. (d)(9)(B)(ii)(IV). Pub. L. 101–239, § 6003(e)(2)(C), substituted ‘‘subparagraph (D)(iii)’’ for ‘‘subparagraph (D)(v)’’. Subsec. (d)(9)(D)(iii). Pub. L. 101–239, § 6003(e)(2)(D)(ii), redesignated cl. (v) as (iii). Former cl. (iii) redesignated (iv). Page 3893 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(9)(D)(iv). Pub. L. 101–239, § 6003(e)(2)(D)(i), (ii), redesignated former cl. (iii) as (iv), substituted ‘‘Subparagraph (H)’’ for ‘‘Subparagraph (C)(iii)’’, and struck out former cl. (iv) which read as follows: ‘‘Sub- paragraph (E) (relating to payments for costs of cer- tified registered nurse anesthetists).’’ Subsec. (d)(9)(D)(v). Pub. L. 101–239, § 6003(e)(2)(D)(iii), redesignated cl. (v) as (iii). Subsec. (d)(10). Pub. L. 101–239, § 6003(h)(1), added par. (10). Subsec. (g)(3)(A)(iv). Pub. L. 101–234, § 301(b)(3), (c)(3), amended cl. (iv) identically, substituting ‘‘(as the case may be)’’ for ‘‘(as the case may) be’’. Subsec. (g)(3)(A)(v). Pub. L. 101–239, § 6002, added cl. (v). Subsec. (g)(3)(B). Pub. L. 101–239, § 6003(e)(2)(E), sub- stituted ‘‘subsection (d)(5)(D)(iii)’’ for ‘‘subsection (d)(5)(C)(ii)’’. Subsec. (i). Pub. L. 101–239, § 6003(g)(4), added subsec. (i). 1988—Subsec. (b)(3)(B)(i)(III). Pub. L. 100–485, § 608(d)(18)(A), substituted ‘‘for hospitals’’ for ‘‘for for hospitals’’ before ‘‘located in other urban areas’’. Pub. L. 100–360, § 411(b)(1)(A), substituted ‘‘for hos- pitals located in other urban areas’’ for ‘‘other hos- pitals’’. Subsec. (b)(3)(B)(i)(IV). Pub. L. 100–485, § 608(d)(18)(A), substituted ‘‘for hospitals’’ for ‘‘for for hospitals’’ be- fore ‘‘located in other urban areas’’. Pub. L. 100–360, § 411(b)(1)(A), (B), substituted ‘‘per- centage points’’ for ‘‘percent’’ in three places and ‘‘for hospitals located in other urban areas’’ for ‘‘other hos- pitals’’. Subsec. (b)(3)(B)(i)(V). Pub. L. 100–360, § 411(b)(1)(C), inserted ‘‘increase’’ after ‘‘market basket percentage’’. Subsec. (d)(1)(A)(iii). Pub. L. 100–360, § 411(b)(1)(G), substituted ‘‘if the average standardized amount (de- scribed in clause (i)(I) or clause (ii)(I) of paragraph (3)(D)) for hospitals within the region of, and in the same rural, large urban, or other urban area as, the hospital is greater than the average standardized amount (described in the respective clause) for hos- pitals within the United States in that type of area’’ for ‘‘if greater’’. Subsec. (d)(2)(C)(i). Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). Previously, Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(A). See 1986 Amendment note below. Subsec. (d)(2)(C)(iv). Pub. L. 100–647, § 8401, sub- stituted ‘‘1995’’ for ‘‘1990’’. Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). Previously, Pub. L. 99–509, § 9307(c)(1)(B)(i), as amended by Pub. L. 100–203, § 4009(j)(6)(A), struck out Pub. L. 99–514, § 1895(b)(2)(A). See 1986 Amendment note below. Subsec. (d)(2)(D). Pub. L. 100–360, § 411(b)(1)(D), sub- stituted ‘‘the publications described in subsection (e)(5)’’ for ‘‘the publication described in subsection (e)(5)(B)’’ in second sentence. Pub. L. 100–360, § 411(b)(1)(H)(i), struck out at end ‘‘For purposes of payment under this subsection, a hos- pital is considered to be located in an urban area or large urban area, respectively, if the hospital is paid under this subsection at the rate for hospitals located in such an area.’’ Subsec. (d)(3)(A). Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). Previously, Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(B). See 1986 Amendment note below. Subsec. (d)(3)(A)(i). Pub. L. 100–360, § 411(b)(1)(E)(i), as added by Pub. L. 100–485, § 608(d)(18)(B), substituted ‘‘oc- curring’’ for ‘‘occuring’’ in first sentence. Pub. L. 100–360, § 411(b)(1)(E)(ii), formerly § 411(b)(1)(E), as redesignated by Pub. L. 100–485, § 608(d)(18)(B), made technical correction to Pub. L. 100–203, § 4002(c)(1)(B)(iii), see 1987 Amendment note below. Subsec. (d)(3)(A)(ii). Pub. L. 100–360, § 411(b)(1)(F), sub- stituted ‘‘in other urban areas’’ for ‘‘in urban areas’’. Subsec. (d)(3)(C)(ii). Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). Previously, Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(C). See 1986 Amendment note below. Subsec. (d)(3)(C)(ii)(I), (II). Pub. L. 100–647, § 8401, sub- stituted ‘‘1995’’ for ‘‘1990’’. Subsec. (d)(3)(C)(iii). Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). Previously, Pub. L. 99–509, § 9307(c)(1)(B)(i), as amended by Pub. L. 100–203, § 4009(j)(6)(A), struck out Pub. L. 99–514, § 1895(b)(2)(B). See 1986 Amendment note below. Subsec. (d)(5)(B)(ii)(I), (II). Pub. L. 100–647, § 8401, sub- stituted ‘‘1995’’ for ‘‘1990’’. Subsec. (d)(5)(F)(i). Pub. L. 100–647, § 8401, substituted ‘‘1995’’ for ‘‘1990’’. Subsec. (d)(5)(F)(vi)(I). Pub. L. 100–647, § 1018(r)(1), struck out Pub. L. 99–514, § 1895(b)(1), (2). See 1986 Amendment note below. Subsec. (d)(8). Pub. L. 100–360, § 411(b)(4)(C)(i), made technical correction to directory language of Pub. L. 100–203, § 4005(a)(1)(D), see 1987 Amendment note below. Subsec. (d)(8)(B). Pub. L. 100–360, § 411(b)(4)(A)(i), sub- stituted ‘‘For purposes of this subsection, the Sec- retary’’ for ‘‘The Secretary’’. Pub. L. 100–360, § 411(b)(4)(A)(ii), substituted ‘‘the rural county would otherwise be considered part of an urban area, under the standards for designating Metro- politan Statistical Areas (and for designating New Eng- land County Metropolitan Areas) published in the Fed- eral Register on January 3, 1980, if the commuting rates used in determining outlying counties (or, for New England, similar recognized areas) were deter- mined on the basis of the aggregate number of resident workers who commute to (and, if applicable under the standards, from) the central county or counties of all contiguous Metropolitan Statistical Areas (or New England County Metropolitan Areas).’’ for ‘‘— ‘‘(i) the rural county would otherwise be considered part of an urban area but for the fact that the rural county does not meet the standard relating to the rate of commutation between the rural county and the central county or counties of any adjacent urban area; and ‘‘(ii) either (I) the number of residents of the rural county who commute for employment to the central county or counties of any adjacent urban area is equal to at least 15 percent of the number of residents of the rural county who are employed, or (II) the sum of the number of residents of the rural county who commute for employment to the central county or counties of any adjacent urban area and the number of residents of any adjacent urban area who commute for employment to the rural county is at least equal to 20 percent of the number of residents of the rural county who are employed.’’ Subsec. (d)(8)(C). Pub. L. 100–647, § 8403(a)(2), added subpar. (C). Former subpar. (C) redesignated (D). Pub. L. 100–360, § 411(b)(4)(B), substituted ‘‘standard- ized amounts’’ for ‘‘standardized amount’’. Subsec. (d)(8)(D). Pub. L. 100–647, § 8403(a)(1), redesig- nated former subpar. (C) as (D) and substituted ‘‘sub- paragraphs (B) and (C)’’ for ‘‘subparagraph (B)’’ wher- ever appearing. Subsec. (d)(9)(C)(iv). Pub. L. 100–360, § 411(b)(3), added Pub. L. 100–203, § 4004(a)(2), see 1987 Amendment note below. Subsec. (e)(6)(B). Pub. L. 100–360, § 411(b)(8)(B), amend- ed Pub. L. 100–203, § 4009(d)(1), see 1987 Amendment note below. Subsec. (f)(1)(A). Pub. L. 100–360, § 411(b)(6)(B), added Pub. L. 100–203, § 4007(b)(1)(A), (B), see 1987 Amendment note below. Subsec. (f)(1)(B). Pub. L. 100–360, § 411(b)(6)(B), added Pub. L. 100–203, § 4007(b)(1)(C), see 1987 Amendment note below. Subsec. (g)(3)(A)(ii) to (iv). Pub. L. 100–360, § 411(b)(5)(B), made technical amendment to Pub. L. 100–203, § 4006(a), see 1987 Amendment note below. Subsec. (g)(3)(A)(iv). Pub. L. 100–360, § 411(b)(5)(A), in- serted ‘‘for payments attributable’’ after ‘‘15 percent’’. 1987—Subsec. (a)(4). Pub. L. 100–203, § 4009(j)(1), in- serted a comma after ‘‘educational activities’’. Page 3894 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Pub. L. 100–203, § 4006(b)(2)(A), substituted ‘‘other cap- ital-related costs (as defined by the Secretary for peri- ods before October 1, 1987)’’ for ‘‘with respect to costs incurred in cost reporting periods beginning prior to October 1 of 1987 (or of such later year as the Secretary may, in his discretion, select), other capital-related costs, as defined by the Secretary’’. Subsec. (b)(3)(B)(i). Pub. L. 100–203, § 4002(e)(1), struck out ‘‘subparagraph (A) for 12-month cost reporting peri- ods beginning during a fiscal year and for purposes of’’ after ‘‘For purposes of’’. Subsec. (b)(3)(B)(i)(II). Pub. L. 100–203, § 4002(a), struck out ‘‘and for fiscal year 1988, the market basket per- centage increase (as defined in clause (ii)) minus 2.0 percentage points, and’’ after ‘‘1.15 percent,’’. Subsec. (b)(3)(B)(i)(III) to (V). Pub. L. 100–203, § 4002(a), added subcls. (III) to (V) and struck out former subcl. (III) which read ‘‘for fiscal year 1989 and subse- quent fiscal years, the percentage determined by the Secretary pursuant to subsection (e)(4) of this section.’’ Subsec. (b)(3)(B)(ii), (iii). Pub. L. 100–203, § 4002(e)(2), (3), added cl. (ii), redesignated former cl. (ii) as (iii), and substituted ‘‘For purposes of this subparagraph’’ for ‘‘For purposes of clause (i)’’. Subsec. (d)(1)(A)(iii). Pub. L. 100–203, § 4002(d), inserted before period at end ‘‘, or, if greater for discharges oc- curring during the period beginning on April 1, 1988, and ending on September 30, 1990, the sum of (I) 85 per- cent of the national adjusted DRG prospective payment rate determined under paragraph (3) for such dis- charges, and (II) 15 percent of the regional adjusted DRG prospective payment rate determined under such paragraph’’. Subsec. (d)(2)(C)(iv). Pub. L. 100–203, § 4009(j)(6)(A), made technical amendment to Pub. L. 99–509, § 9307(c)(1)(B). See 1986 Amendment note below. Pub. L. 100–203, § 4003(c), substituted ‘‘1990’’ for ‘‘1989’’. Subsec. (d)(2)(D). Pub. L. 100–203, § 4002(f)(1)(A), in- serted sentence at end providing that hospital is con- sidered located in urban area or large urban area, re- spectively, if it is paid under this subsection at rate for hospitals located in such area. Pub. L. 100–203, § 4002(b), in second sentence inserted definition of ‘‘large urban area’’. Subsec. (d)(3). Pub. L. 100–203, § 4002(c)(1)(A), sub- stituted ‘‘large urban, other urban, or rural areas’’ for ‘‘urban or rural areas’’ in second sentence. Subsec. (d)(3)(A)(i). Pub. L. 100–203, § 4002(c)(1)(B), (C), as amended by Pub. L. 100–360, § 411(b)(1)(E)(ii), des- ignated existing provisions as cl. (i), substituted ‘‘For discharges occuring [sic] in a fiscal year beginning be- fore October 1, 1987, the Secretary’’ for ‘‘The Sec- retary’’ and ‘‘the fiscal year involved’’ for ‘‘each of fis- cal years 1985, 1986, 1987, and 1988’’, struck out ‘‘, and adjusted for subsequent fiscal years in accordance with the final determination of the Secretary under sub- section (e)(4) of this section, and adjusted to reflect the most recent case-mix data available’’, and added cls. (ii) and (iii). Subsec. (d)(3)(C)(ii). Pub. L. 100–203, § 4003(c), sub- stituted ‘‘1990’’ for ‘‘1989’’ in subcls. (I) and (II). Pub. L. 100–203, § 4003(a)(2), inserted ‘‘and by section 4003(a)(1) of the Omnibus Budget Reconciliation Act of 1987’’ after ‘‘Amendments of 1985’’ in subcls. (I) and (II). Subsec. (d)(3)(C)(iii). Pub. L. 100–203, § 4009(j)(6)(A), made technical amendment to Pub. L. 99–509, § 9307(c)(1)(B). See 1986 Amendment note below. Subsec. (d)(3)(D). Pub. L. 100–203, § 4002(c)(1)(D)(i), sub- stituted ‘‘hospitals in different areas’’ for ‘‘urban and rural hospitals’’ in heading. Subsec. (d)(3)(D)(i). Pub. L. 100–203, § 4002(c)(1)(D)(ii), (iii), inserted ‘‘(or, for discharges occurring on or after April 1, 1988, in a large urban area or other urban area)’’ after first reference to ‘‘urban area’’, and in subcl. (I) inserted ‘‘such’’ before ‘‘an urban area’’. Subsec. (d)(3)(E). Pub. L. 100–203, § 4004(a)(1), formerly § 4004(a), as redesignated by Pub. L. 100–360, § 411(b)(3), inserted at end ‘‘Not later than October 1, 1990 (and at least every 36 months thereafter), the Secretary shall update the factor under the preceding sentence on the basis of a survey conducted by the Secretary (and up- dated as appropriate) of the wages and wage-related costs of subsection (d) hospitals in the United States. To the extent determined feasible by the Secretary, such survey shall measure the earnings and paid hours of employment by occupational category and shall ex- clude data with respect to the wages and wage-related costs incurred in furnishing skilled nursing facility services.’’ Subsec. (d)(5)(B)(ii). Pub. L. 100–203, § 4003(c), sub- stituted ‘‘1990’’ for ‘‘1989’’ in subcls. (I) and (II). Pub. L. 100–203, § 4003(a)(1), substituted ‘‘1.89’’ for ‘‘2’’ in subcl. (I) and ‘‘1.43’’ for ‘‘1.5’’ in subcl. (II). Subsec. (d)(5)(C)(i)(I). Pub. L. 100–203, § 4005(d)(1)(A), substituted ‘‘275’’ for ‘‘500’’. Subsec. (d)(5)(C)(i)(II). Pub. L. 100–203, § 4009(j)(2), in- serted ‘‘index’’ after ‘‘case mix’’ in two places. Subsec. (d)(5)(C)(ii). Pub. L. 100–203, § 4005(c)(1), sub- stituted ‘‘1990’’ for ‘‘1988’’ in second sentence and in- serted after second sentence ‘‘A subsection (d) hospital that meets the criteria for classification as a sole com- munity hospital and otherwise qualifies for the adjust- ment authorized by the preceding sentence may qualify for such an adjustment without regard to the formula by which payments are determined for the hospital under paragraph (1)(A).’’ Subsec. (d)(5)(F)(i). Pub. L. 100–203, § 4003(c), sub- stituted ‘‘1990’’ for ‘‘1989’’. Subsec. (d)(5)(F)(i)(II). Pub. L. 100–203, § 4009(j)(3)(A), substituted ‘‘such net inpatient care revenues’’ for sec- ond reference to ‘‘such revenues’’. Subsec. (d)(5)(F)(iii). Pub. L. 100–203, § 4003(b)(1), sub- stituted ‘‘25 percent’’ for ‘‘15 percent’’. Subsec. (d)(5)(F)(iv)(I). Pub. L. 100–203, § 4009(j)(3)(B), substituted ‘‘clause (v)’’ for ‘‘subclause (III)’’. Pub. L. 100–203, § 4003(b)(2), struck out ‘‘the lesser of 15 percent, or’’ after ‘‘is equal to’’. Subsec. (d)(5)(F)(vi)(I). Pub. L. 100–203, § 4009(j)(6)(A), made technical amendment to Pub. L. 99–509, § 9307(c)(1)(B)(ii). See 1986 Amendment note below. Subsec. (d)(8). Pub. L. 100–203, § 4005(a)(1), as amended by Pub. L. 100–360, § 411(b)(4)(C)(i), designated existing provisions as subpar. (A), redesignated former subpar. (A) and cls. (i) and (ii) as cl. (i) and subcls. (I) and (II), respectively, redesignated former subpar. (B) and cls. (i) and (ii) as cl. (ii) and subcl. (I) and (II), respectively, and added subpars. (B) and (C). Subsec. (d)(9)(A)(ii). Pub. L. 100–203, § 4002(c)(2), sub- stituted ‘‘a large urban area,’’ for ‘‘an urban area, and’’ in subcl. (I), added subcl. (II), and redesignated former subcl. (II) as (III). Subsec. (d)(9)(B). Pub. L. 100–203, § 4009(j)(4), realigned margin of introductory provisions. Subsec. (d)(9)(C)(iv). Pub. L. 100–203, § 4004(a)(2), as added by Pub. L. 100–360, § 411(b)(3), inserted at end ‘‘The second and third sentences of paragraph (3)(E) shall apply to subsection (d) Puerto Rico hospitals under this clause in the same manner as they apply to subsection (d) hospitals under such paragraph and, for purposes of this clause, any reference in such paragraph to a subsection (d) hospital is deemed a reference to a subsection (d) Puerto Rico hospital.’’ Subsec. (e)(3)(B). Pub. L. 100–203, § 4002(f)(1)(B), struck out ‘‘or determine’’ after ‘‘recommend’’. Subsec. (e)(4). Pub. L. 100–203, § 4002(f)(1)(C), sub- stituted ‘‘for each fiscal year (beginning with fiscal year 1988)’’ for ‘‘for fiscal year 1988’’, struck out ‘‘and shall determine for each subsequent fiscal year the per- centage change which will apply for purposes of this section as the applicable percentage increase (other- wise described in subsection (b)(3)(B) of this section) for discharges in that fiscal year, and’’ after ‘‘in that fiscal year’’, and amended last sentence generally. Prior to amendment, last sentence read as follows: ‘‘The per- centage change shall be the same for all subsection (d) hospitals and subsection (d) Puerto Rico hospitals, but may be different from that for other hospitals (and units not included as such hospitals) and may vary among such other hospitals and units.’’ Subsec. (e)(5). Pub. L. 100–203, § 4009(j)(6)(B), amended Pub. L. 99–509, § 9302(a)(2)(C). See 1986 Amendment note below. Page 3895 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Pub. L. 100–203, § 4002(f)(1)(D), struck out ‘‘or deter- mination’’ after ‘‘recommendation’’ in subpars. (A) and (B). Subsec. (e)(6)(B). Pub. L. 100–203, § 4009(d)(1), as amended by Pub. L. 100–360, § 411(b)(8)(B), substituted ‘‘include individuals with national recognition for their expertise in health economics, hospital reimbursement, hospital financial management, and other related fields, who provide a mix of different professionals, broad geographic representation, and a balance be- tween urban and rural representatives’’ for ‘‘provide ex- pertise and experience in the provision and financing of health care’’, and struck out last sentence which re- quired Director to seek nominations from wide range of groups, including specified types of national organiza- tions. Subsec. (e)(6)(D). Pub. L. 100–203, § 4083(b)(1), inserted at end ‘‘For purposes of pay (other than pay of mem- bers of the Commission) and employment benefits, rights, and privileges, all personnel of the Commission shall be treated as if they were employees of the United States Senate.’’ Subsec. (f)(1)(A). Pub. L. 100–203, § 4007(b)(1)(A), (B), as added by Pub. L. 100–360, § 411(b)(6)(B), inserted subpar. (A) designation and struck out ‘‘, for a period ending not earlier than September 30, 1988,’’ after ‘‘shall main- tain’’. Subsec. (f)(1)(B). Pub. L. 100–203, § 4007(b)(1)(C), as added by Pub. L. 100–360, § 411(b)(6)(B), added subpar. (B). Subsec. (f)(3). Pub. L. 100–93 amended par. (3) gen- erally. Prior to amendment, par. (3) read as follows: ‘‘The provisions of paragraphs (2), (3), and (4) of section 1395y(d) of this title shall apply to determinations under paragraph (2) of this subsection in the same man- ner as they apply to determinations made under sec- tion 1395y(d)(1) of this title.’’ Subsec. (g)(1). Pub. L. 100–203, § 4006(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘If the Congress does not enact legislation, after April 20, 1983, and before October 1, 1987, respect- ing the payment under this subchapter for capital-re- lated costs for inpatient hospital services, no payment may be made under this subchapter for capital-related costs of capital expenditures (as defined in section 1320a–1(g) of this title and except as provided in section 1320a–1(j) of this title) for inpatient hospital services in a State, which expenditures are obligated after Sep- tember 30, 1987, unless the State has an agreement with the Secretary under section 1320a–1(b) of this title and under the agreement the State has recommended ap- proval of the capital expenditures.’’ Subsec. (g)(3)(A)(ii) to (iv). Pub. L. 100–203, § 4006(a), as amended by Pub. L. 100–360, § 411(b)(5)(B), substituted ‘‘on or after October 1, 1987, and before January 1, 1988,’’ for ‘‘, and’’, at end of cl. (ii), added cls. (iii) and (iv), and struck out former cl. (iii) which read as fol- lows: ‘‘10 percent for payments attributable to portions of cost reporting periods or discharges (as the case may be) occurring during fiscal year 1989.’’ Subsec. (g)(3)(C). Pub. L. 100–203, § 4006(b)(2)(B), struck out subpar. (C) which read as follows: ‘‘If the Secretary provides, under subsection (a)(4) of this section, for the inclusion of other capital-related costs in operating costs of inpatient hospital services, the Secretary shall provide— ‘‘(i) notwithstanding any other provision of this subchapter, for the continuation of payment under the reasonable cost methodology described in section 1395x(v)(1) of this title with respect to capital-related costs of any hospital that is such a sole community hospital for cost reporting periods beginning before October 1, 1990, and ‘‘(ii) in the design of such payment system that the aggregate payment amounts under this subchapter for such other capital-related costs for payments at- tributable to portions of cost reporting periods occur- ring during fiscal year 1988 and fiscal year 1989 shall approximate the aggregate payment amount under this subchapter that would have been made (taking into account the provisions of subparagraphs (A) and (B)) during that fiscal year but for the inclusion of such costs by the Secretary.’’ Subsec. (h)(4)(C). Pub. L. 100–203, § 4009(j)(5), sub- stituted ‘‘subparagraph (D)’’ for ‘‘subparagraph (E)’’. 1986—Subsec. (a)(4). Pub. L. 99–509, § 9320(g)(1), struck out ‘‘, costs of anesthesia services provided by a cer- tified registered nurse anesthetist,’’ after ‘‘approved educational activities’’. Pub. L. 99–509, § 9303(c), substituted ‘‘October 1 of 1987 (or of such later year as the Secretary may, in his dis- cretion, select)’’ for ‘‘October 1, 1987’’. Pub. L. 99–349 substituted ‘‘1987’’ for ‘‘1986’’. Pub. L. 99–272, § 9107(a)(2), inserted ‘‘a return on eq- uity capital,’’ after ‘‘anesthetist,’’ and ‘‘other’’ before ‘‘capital-related costs’’. Subsec. (b)(3)(B). Pub. L. 99–272, § 9101(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘For purposes of subparagraph (A) and subsection (d) of this section and except as provided in subsection (e) of this section, the ‘applicable percent- age increase’ for any 12-month cost reporting period or fiscal year shall be equal to one-quarter of 1 percentage point plus the percentage, estimated by the Secretary before the beginning of the period or year, by which the cost of the mix of goods and services (including per- sonnel costs but excluding non-operating costs) com- prising routine, ancillary, and special care unit inpa- tient hospital services, based on an index of appro- priately weighted indicators of changes in wages and prices which are representative of the mix of goods and services included in such inpatient hospital services, for such cost reporting period or fiscal year will exceed the cost of such mix of goods and services for the pre- ceding 12-month cost reporting period or fiscal year. In determining a percentage change under subsection (e)(4) of this section with respect to discharges occur- ring in any cost reporting period or fiscal year begin- ning on or after October 1, 1985, and before October 1, 1986, the Secretary may not establish a percentage in- crease which exceeds the applicable percentage in- crease otherwise determined for that period or fiscal year under the preceding sentence.’’ Subsec. (b)(3)(B)(i)(II). Pub. L. 99–509, § 9302(a)(1), amended subcl. (II) generally. Prior to amendment, subcl. (II) read as follows: ‘‘for fiscal years 1987 and 1988, a percentage determined by the Secretary pursu- ant to subsection (e)(4) of this section, but not to ex- ceed the market basket percentage increase (as defined in clause (ii)), and’’. Subsec. (b)(6). Pub. L. 99–514, § 2, substituted ‘‘Inter- nal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’. Subsec. (c)(7). Pub. L. 99–272, § 9109(a), added par. (7). Subsec. (d)(1)(A). Pub. L. 99–272, § 9102(a), substituted ‘‘1987’’ for ‘‘1986’’ in cls. (ii) and (iii). Subsec. (d)(1)(C). Pub. L. 99–272, § 9102(b), struck out ‘‘, or discharges occurring’’ after ‘‘periods beginning’’ in introductory provision, and ‘‘and’’ after ‘‘percent;’’ in cl. (ii), added cl. (iii), redesignated former cl. (iii) as (iv), and in cl. (iv) substituted ‘‘on or after October 1, 1986, and before October 1, 1987’’ for ‘‘on or after Octo- ber 1, 1985, and before October 1, 1986’’. Subsec. (d)(1)(D). Pub. L. 99–272, § 9102(c), struck out ‘‘cost reporting periods beginning, or’’ before ‘‘dis- charges occurring’’ in introductory provision, in cl. (i) substituted ‘‘1986’’ for ‘‘1985’’, and in cl. (ii) substituted ‘‘1986’’ and ‘‘1987’’ for ‘‘1985’’ and ‘‘1986’’, respectively. Subsec. (d)(2)(C)(i). Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(A), which had di- rected the striking out of ‘‘(taking into account, for discharges occurring after September 30, 1986, the amendments made by section 9104(a) of the Medicare and Medicaid Budget Reconciliation Amendments of 1985)’’ after ‘‘medical education costs’’. Pub. L. 99–272, § 9104(b)(1), inserted ‘‘(taking into ac- count, for discharges occurring after September 30, 1986, the amendments made by section 9104(a) of the Medicare and Medicaid Budget Reconciliation Amend- ments of 1985)’’ after ‘‘medical education costs’’. Page 3896 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Subsec. (d)(2)(C)(iv). Pub. L. 99–509, § 9306(c), sub- stituted ‘‘1989’’ for ‘‘1988’’. Pub. L. 99–509, § 9307(c)(1)(B)(i), as amended by Pub. L. 100–203, § 4009(j)(6)(A), struck out Pub. L. 99–514, § 1895(b)(2)(A), which had directed that cl. (iv) was to be struck out. Pub. L. 99–272, § 9105(b), added cl. (iv). Subsec. (d)(3)(A). Pub. L. 99–509, § 9302(a)(2)(A), (c), substituted ‘‘1986, 1987, and 1988’’ for ‘‘and 1986’’ and in- serted provisions relating to the computation of urban and rural averages with respect to discharges occurring on or after October 1, 1987. Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(B), which had directed insertion of ‘‘If the formula under paragraph (5)(B) for determining payments for the indirect costs of medical education is changed for any fiscal year, the Secretary shall read- just the standardized amounts previously determined for each hospital to take into account the changes in that formula.’’ Pub. L. 99–272, § 9101(c)(1), substituted ‘‘for each of fis- cal years 1985 and 1986’’ for ‘‘for fiscal year 1985’’. Subsec. (d)(3)(B). Pub. L. 99–509, § 9302(b)(1), inserted ‘‘for hospitals located in an urban area and for hos- pitals located in a rural area’’ after ‘‘subparagraph (A)’’, and inserted before the period ‘‘for hospitals lo- cated in such respective area’’. Subsec. (d)(3)(C). Pub. L. 99–272, § 9104(b)(2), inserted ‘‘for fiscal year 1985’’ after ‘‘neutrality’’ in heading, designated existing provision as cl. (i), substituted ‘‘For discharges occurring in fiscal year 1985, the Sec- retary’’ for ‘‘The Secretary’’, and added cl. (ii). Subsec. (d)(3)(C)(ii). Pub. L. 99–509, § 9306(c), sub- stituted ‘‘1989’’ for ‘‘1988’’ in subcls. (I) and (II). Pub. L. 99–509, § 9307(c)(1)(A), struck out Pub. L. 99–514, § 1895(b)(1)(C), which had directed a general amendment of cl. (ii) to read as follows: ‘‘The Secretary shall further reduce each of the average standardized amounts by a proportion equal to the proportion (esti- mated by the Secretary) of the amount of payments under this subsection based on DRG prospective pay- ment amounts which is the difference between— ‘‘(I) the sum of the additional payment amounts under paragraph (5)(B) (relating to indirect costs of medical education) if the indirect teaching adjust- ment factor were equal to 1.159r (as ‘r’ is defined in paragraph (5)(B)(ii)), and ‘‘(II) that sum using the factor specified in para- graph (5)(B)(ii)(II).’’ Subsec. (d)(3)(C)(iii). Pub. L. 99–509, § 9307(c)(1)(B)(i), as amended by Pub. L. 100–203, § 4009(j)(6)(A), struck out Pub. L. 99–514, § 1895(b)(2)(B), which had added cl. (iii) reading as follows: ‘‘The Secretary shall further reduce each of the average standardized amounts by reducing the standardized amount for each hospital (as pre- viously determined without regard to this clause) by a proportion equal to the proportion (established by the Secretary) of the amount of payments under this sub- section based on DRG prospective payment amounts which are additional payments described in paragraph (5)(F) (relating to disproportionate share payments) for subsection (d) hospitals.’’ Subsec. (d)(3)(D)(i)(I), (ii)(I). Pub. L. 99–272, § 9104(b)(3), inserted ‘‘or reduced’’ after ‘‘(B), and ad- justed’’. Subsec. (d)(4)(C). Pub. L. 99–509, § 9302(e)(1), sub- stituted ‘‘in fiscal year 1988 and at least annually’’ for ‘‘in fiscal year 1986 and at least every four fiscal years’’. Subsec. (d)(5)(B). Pub. L. 99–272, § 9104(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘The Secretary shall provide for an ad- ditional payment amount for subsection (d) hospitals with indirect costs of medical education, in an amount computed in the same manner as the adjustment for such costs under regulations (in effect as of January 1, 1983) under subsection (a)(2) of this section, except that in the computation under this subparagraph the Sec- retary shall use an educational adjustment factor equal to twice the factor provided under such regulations. In determining such adjustment the Secretary shall not distinguish between those interns and residents who are employees of a hospital and those interns and resi- dents who furnish services to a hospital but are not em- ployees of such hospital.’’ Subsec. (d)(5)(B)(ii). Pub. L. 99–509, § 9306(c), sub- stituted ‘‘1989’’ for ‘‘1988’’ in subcls. (I) and (II). Subsec. (d)(5)(C)(i). Pub. L. 99–509, § 9302(d)(1)(A), des- ignated existing provisions as subcl. (I) and added subcl. (II). Pub. L. 99–272, § 9106(a), inserted ‘‘and which shall not require a rural osteopathic hospital to have more than 3,000 discharges in a year in order to be classified as a rural referral center’’ before the period in second sen- tence. Pub. L. 99–272, § 9105(c), struck out ‘‘, and of public or other hospitals that serve a significantly dispropor- tionate number of patients who have low income or are entitled to benefits under part A of this subchapter’’ after ‘‘in rural areas)’’. Subsec. (d)(5)(C)(i)(I). Pub. L. 99–509, § 9304(b)(1), in- serted ‘‘(other than under paragraph (9))’’ after ‘‘estab- lished under this subsection’’ in first sentence. Subsec. (d)(5)(C)(ii). Pub. L. 99–509, § 9304(b)(2), in- serted ‘‘(other than under paragraph (9))’’ after ‘‘this subsection’’ in second and third sentences. Pub. L. 99–509, § 9302(e)(4), substituted ‘‘1988’’ for ‘‘1986’’. Pub. L. 99–272, § 9111(a), inserted provision authorizing the Secretary to adjust amount of payments to sole community hospitals that realize a significant increase in operating costs in a cost reporting period attrib- utable to addition of new inpatient facilities or serv- ices. Subsec. (d)(5)(E). Pub. L. 99–509, § 9320(g)(2), struck out subpar. (E) which read as follows: ‘‘The Secretary shall provide for an additional payment amount for any subsection (d) hospital equal to the reasonable costs in- curred by such hospital for anesthesia services provided by a certified registered nurse anesthetist. Payment under this subparagraph shall be the only payment made to such hospital with respect to such services.’’ Subsec. (d)(5)(F). Pub. L. 99–272, § 9105(a), added sub- par. (F). Subsec. (d)(5)(F)(i). Pub. L. 99–509, § 9306(c), sub- stituted ‘‘1989’’ for ‘‘1988’’. Subsec. (d)(5)(F)(iv)(I). Pub. L. 99–509, § 9306(b)(1), in- serted ‘‘or is described in the second sentence of sub- clause (III)’’ after ‘‘100 or more beds’’. Subsec. (d)(5)(F)(iv)(III). Pub. L. 99–509, § 9306(b)(2), in- serted ‘‘and is not described in the second sentence of clause (v)’’ after ‘‘rural area’’. Subsec. (d)(5)(F)(v). Pub. L. 99–509, § 9306(a), inserted at end ‘‘A hospital located in a rural area and with 500 or more beds also ‘serves a significantly dispropor- tionate number of low income patients’ for a cost re- porting period if the hospital has a disproportionate pa- tient percentage (as defined in clause (vi)) for that pe- riod which equals or exceeds a percentage specified by the Secretary.’’ Subsec. (d)(5)(F)(vi)(I). Pub. L. 99–514, § 1895(b)(2)(A), formerly § 1895(b)(2)(C), as amended by Pub. L. 99–509, § 9307(c)(1)(B)(ii), as amended by Pub. L. 100–203, § 4009(j)(6)(A), which directed the substitution of ‘‘sup- plemental’’ for ‘‘supplementary’’ and ‘‘period’’ for ‘‘fis- cal year’’, was repealed by Pub. L. 100–647, § 1018(r)(1). Subsec. (d)(9). Pub. L. 99–509, § 9304(a), added par. (9). Subsec. (e)(1)(C). Pub. L. 99–509, § 9304(c), added sub- par. (C). Subsec. (e)(3). Pub. L. 99–509, § 9302(e)(3), designated existing provisions as subpar. (A) and added subpar. (B). Pub. L. 99–272, § 9101(c)(2), struck out ‘‘(instead of the applicable percentage increase described in subsection (b)(3)(B) of this section)’’ after ‘‘should be used’’. Subsec. (e)(3)(A). Pub. L. 99–509, § 9321(e)(2)(A), sub- stituted ‘‘March’’ for ‘‘April’’. Subsec. (e)(4). Pub. L. 99–509, § 9302(a)(2)(B), (e)(2), sub- stituted ‘‘recommend for fiscal year 1988 an appropriate change factor for inpatient hospital services for dis- charges in that fiscal year and shall determine for each Page 3897 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww subsequent fiscal year’’ for ‘‘determine for each fiscal year (beginning with fiscal year 1987) and inserted at end ‘‘The percentage change shall be the same for all subsection (d) hospitals and subsection (d) Puerto Rico hospitals, but may be different from that for other hos- pitals (and units not included as such hospitals) and may vary among such other hospitals and units.’’ Pub. L. 99–272, § 9101(c)(3), substituted ‘‘fiscal year 1987’’ for ‘‘fiscal year 1986’’. Subsec. (e)(5). Pub. L. 99–509, § 9302(a)(2)(C), as amend- ed by Pub. L. 100–203, § 4009(j)(6)(B), inserted ‘‘rec- ommendation or’’ before ‘‘determination’’ in subpars. (A) and (B). Subsec. (e)(5)(A). Pub. L. 99–509, § 9321(e)(2)(B), sub- stituted ‘‘May’’ for ‘‘June’’. Subsec. (e)(6)(A). Pub. L. 99–272, § 9127(a), substituted ‘‘17 individuals’’ for ‘‘15 individuals’’. Subsec. (g)(1). Pub. L. 99–349 substituted ‘‘1987’’ for ‘‘1986’’ in two places. Subsec. (g)(2). Pub. L. 99–272, § 9107(a)(1), designated existing provision as subpar. (A), inserted ‘‘the applica- ble percentage (described in subparagraph (B)) of’’, and added subpar. (B). Subsec. (g)(2)(B). Pub. L. 99–514, § 1895(b)(3), realigned margins of subpar. (B). Subsec. (g)(3). Pub. L. 99–509, § 9303(a), added par. (3). Subsec. (g)(3)(A). Pub. L. 99–509, § 9303(b), inserted ‘‘and a subsection (d) Puerto Rico hospital’’ after ‘‘sub- section (d) hospital’’. Subsec. (h). Pub. L. 99–272, § 9202(a), added subsec. (h). Subsec. (h)(2)(C). Pub. L. 99–514, § 1895(b)(9)(A), sub- stituted ‘‘subparagraph (B)’’ for ‘‘paragraph (B)’’. Subsec. (h)(4)(D). Pub. L. 99–514, § 1895(b)(9)(B), (C), re- designated subpar. (E) as (D) and in cl. (ii) inserted ‘‘but before July 1, 1987,’’. Subsec. (h)(4)(E). Pub. L. 99–509, § 9314(a), added sub- par. (E). Pub. L. 99–514, § 1895(b)(9)(C), redesignated former sub- par. (E) as (D). Subsec. (h)(5)(B). Pub. L. 99–514, § 1895(b)(9)(D), sub- stituted ‘‘The’’ for ‘‘As used in this paragraph, the’’. 1984—Subsec. (a)(2)(B). Pub. L. 98–369, § 2354(b)(42), substituted ‘‘disproportionate’’ for ‘‘disportionate’’. Subsec. (a)(4). Pub. L. 98–369, § 2312(b), temporarily in- serted ‘‘, costs of anesthesia services provided by a cer- tified registered nurse anesthetist’’ after ‘‘approved educational activities’’. See Effective and Termination Dates of 1984 Amendments note below. Subsec. (b)(3)(A)(ii). Pub. L. 98–369, § 2354(b)(43), in- serted ‘‘of’’ after ‘‘in the case’’. Subsec. (b)(3)(B). Pub. L. 98–369, § 2310(a), substituted ‘‘one-quarter of 1 percentage point’’ for ‘‘1 percentage point’’ and inserted provision that in determining the percentage change under subsec. (e) of this section with respect to discharges occurring in any cost reporting period or fiscal year beginning on or after Oct. 1, 1985, and before Oct. 1, 1986, the Secretary may not establish a percentage increase which exceeds the applicable per- centage increase otherwise determined for that period or fiscal year under the preceding sentence. Subsec. (c)(4)(A). Pub. L. 98–369, § 2315(a), substituted ‘‘(D), and (E)’’ for ‘‘and (D)’’. Subsec. (d)(2)(D). Pub. L. 98–369, § 2315(b), struck out ‘‘Standard’’ before ‘‘Metropolitan’’ in provision fol- lowing cl. (ii). Pub. L. 98–369, § 2311(b), inserted provision for deter- mining the region a hospital located in a Metropolitan Statistical Area would be deemed to be located. Subsec. (d)(3)(D)(i)(I). Pub. L. 98–369, § 2354(b)(44), sub- stituted ‘‘(C))’’ for ‘‘(C),’’. Subsec. (d)(5)(B). Pub. L. 98–369, § 2307(b)(1), inserted provision that in determining such adjustment the Sec- retary not distinguish between those interns and resi- dents who are employees of a hospital and those who furnish services to a hospital but are not employees of such hospital. Subsec. (d)(5)(C)(i). Pub. L. 98–617 substituted ‘‘Au- gust 17, 1984’’ for ‘‘30 days after July 18, 1984’’ before ‘‘for implementation by’’. Pub. L. 98–369, § 2311(a), inserted provisions permit- ting a hospital classified as a rural hospital to appeal to the Secretary for reclassification as a rural referral center on the basis of criteria established and published by the Secretary and requiring the Secretary to make a final determination with respect to such appeal with- in 60 days after the date the appeal was submitted. Subsec. (d)(5)(E). Pub. L. 98–369, § 2312(a), temporarily added subpar. (E). See Effective and Termination Dates of 1984 Amendments note below. Subsec. (d)(8). Pub. L. 98–369, § 2311(c), added par. (8). Subsec. (e)(2). Pub. L. 98–369, § 2313(a), inserted ‘‘(without regard to the provisions of title 5 governing appointments in the competitive service)’’ after ‘‘ap- pointed by the Director’’. Subsec. (e)(5). Pub. L. 98–369, § 2315(c)(1), struck out ‘‘for public comment’’ after ‘‘have published’’ in provi- sions preceding subpar. (A). Subsec. (e)(5)(A). Pub. L. 98–369, § 2315(c)(2), inserted ‘‘for public comment’’ after ‘‘that fiscal year’’. Subsec. (e)(6)(C). Pub. L. 98–369, § 2313(b)(3), inserted provision that section 10(a)(1) of the Federal Advisory Committee Act not apply to any portion of a Commis- sion meeting if the Commission, by majority vote, de- termines such portion of such meeting should be closed. Subsec. (e)(6)(C)(i). Pub. L. 98–369, § 2313(b)(1), amend- ed cl. (i) generally, substituting provision authorizing the Commission to employ and fix the compensation of an Executive Director, subject to the approval of the Director of the Office, and such other personnel, not to exceed 25, as necessary, without regard to the provi- sions of title 5 governing appointment in the competi- tive service, for provision authorizing the Commission to employ and fix the compensation of such personnel, not to exceed 25, as may be necessary to carry out its duties. Subsec. (e)(6)(C)(iii). Pub. L. 98–369, § 2313(b)(2), in- serted ‘‘(without regard to section 5 of title 41)’’ after ‘‘Commission’’. Subsec. (e)(6)(D). Pub. L. 98–369, § 2313(b)(4), inserted provision relating to payment of physician com- parability allowance in the same manner as provided under section 5948 of title 5 and providing that for such purpose subsec. (i) of such section apply to the Commis- sion in the same manner as it applies to the Tennessee Valley Authority. Subsec. (e)(6)(J). Pub. L. 98–369, § 2313(d), added sub- par. (J). 1983—Subsec. (a)(1)(D). Pub. L. 98–21, § 601(a)(1), added subpar. (D). Subsec. (a)(4). Pub. L. 98–21, § 601(a)(2), inserted provi- sion that term ‘‘operating costs of inpatient hospital services’’ does not include costs of approved edu- cational activities, or, with respect to costs incurred in cost reporting periods beginning prior to Oct. 1, 1986, capital-related costs, as defined by the Secretary. Pub. L. 97–448, § 309(b)(13), substituted ‘‘as such costs are determined’’ for ‘‘and such costs are determined’’. Subsec. (b)(1). Pub. L. 98–21, § 601(b)(1), (2), in provi- sions preceding subpar. (A), substituted ‘‘Notwith- standing section 1395f(b) of this title but subject to the provisions of section 1395e of this title’’ for ‘‘Notwith- standing section 1395f(b) of this title, but subject to the provisions of sections 1395e of this title’’ and inserted ‘‘(other than a subsection (d) hospital, as defined in subsection (d)(1)(B))’’ after ‘‘of a hospital’’. Pub. L. 98–21, § 601(b)(3), inserted ‘‘(other than on the basis of a DRG prospective payment rate determined under subsection (d))’’ after ‘‘payable under this sub- chapter’’ in provisions following subpar. (B). Pub. L. 97–448, § 309(b)(14), substituted ‘‘section 1395f(b) of this title,’’ for ‘‘sections 1395f(b) of this title’’ in provisions preceding subpar. (A). Subsec. (b)(2). Pub. L. 98–21, § 601(b)(4), struck out par. (2) which provided that par. (1) would not apply to cost reporting periods of hospitals beginning on or after Oct. 1, 1985. Subsec. (b)(3)(B). Pub. L. 98–21, § 601(b)(5)–(8), inserted ‘‘and subsection (d) of this section and except as pro- vided in subsection (e) of this section’’ after ‘‘subpara- graph (A)’’, inserted ‘‘or fiscal year’’ after ‘‘cost report- ing period’’ each place it appears, inserted ‘‘before the Page 3898 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww beginning of the period or year’’ after ‘‘estimated by the Secretary’’, and substituted ‘‘will exceed’’ for ‘‘ex- ceeds’’. Subsec. (b)(6). Pub. L. 98–21, § 601(b)(9), added par. (6) and repealed a prior par. (6) which directed the Sec- retary to provide for an adjustment under this para- graph in the amount of payment otherwise provided a hospital under this subsection in the case of a hospital which, as of Aug. 15, 1982, was subject to FICA taxes and which was not subject to such taxes for part or all of a cost reporting period beginning on or after Oct. 1, 1982, that in making such adjustment for a cost report- ing period the Secretary was to estimate the amount of the operating costs of inpatient hospital services that would have resulted if the hospital was subject to the FICA taxes during that period, that in making such es- timate the Secretary was to reduce the amount of such FICA taxes that would have been paid (but not below zero) by the amount of costs which the hospital dem- onstrated to the satisfaction of the Secretary were in- curred in the period for pensions, health, and other fringe benefits for employees (and former employees and family members) comparable to, and in lieu of, the benefits provided under subchapter II of this chapter and this subchapter, that if a hospital’s operating costs of inpatient hospital services estimated under subpara- graph (B) was greater than the hospital’s operating costs of inpatient hospital services determined without regard to this paragraph for a cost reporting period, then the Secretary was to reduce the amount otherwise paid the hospital (respecting operating costs of inpa- tient hospital services) under this subchapter (taking into account any limitation under subsection (a) of this section) for the period by the amount by which (i) the amount that would have been paid the hospital if (I) the amount of the operating costs of inpatient hospital services estimated under subparagraph (B) were treated as the amount of the operating costs of inpatient hos- pital services and (II) subsection (a) of this section did not apply to the determination, exceeded (ii) the amount that would otherwise have been paid the hos- pital if subsection (a) of this section (and this para- graph) did not apply, except that, in making such de- termination for cost reporting periods beginning on or after Oct. 1, 1984, clause (ii) of paragraph (1)(B) was to continue to apply. Subsec. (b)(6)(C). Pub. L. 97–448, § 309(b)(15), sub- stituted ‘‘under this subchapter (taking into account any limitation under subsection (a) of this section)’’ for ‘‘under this subsection’’ in provisions preceding cl. (i). Subsec. (c)(1). Pub. L. 98–21, § 601(c)(1), added subpars. (D) and (E) and provisions following subpar. (E). Subsec. (c)(3)(A). Pub. L. 98–21, § 601(c)(2)(A), sub- stituted ‘‘meets the requirements of subparagraphs (A), (D), and (E) of paragraph (1) and, if applicable, the re- quirements of paragraph (5),’’ for ‘‘meets the require- ment of paragraph (1)(A)’’. Subsec. (c)(3)(B). Pub. L. 98–21, § 601(c)(2)(B), inserted ‘‘(or, if applicable, in paragraph (5))’’. Subsec. (c)(4) to (6). Pub. L. 98–21, § 601(c)(3), added pars. (4) to (6). Subsec. (d). Pub. L. 98–21, § 601(d)(2), (e), added subsec. (d) and redesignated former subsec. (d), relating to the elimination of lesser-of-cost-or-charges provisions, as subsec. (j) of section 1814 of act Aug. 14, 1935, which is classified to subsec. (j) of section 1395f of this title. Subsecs. (e) to (g). Pub. L. 98–21, § 601(e), added sub- secs. (e) to (g). 1982—Subsec. (d). Pub. L. 97–248, § 110, added subsec. (d). Statutory Notes and Related Subsidiaries CHANGE OF NAME References to Medicare+Choice deemed to refer to Medicare Advantage or MA, subject to an appropriate transition provided by the Secretary of Health and Human Services in the use of those terms, see section 201 of Pub. L. 108–173, set out as a note under section 1395w–21 of this title. EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–328, div. FF, title IV, § 4143(c), Dec. 29, 2022, 136 Stat. 5931, provided that: ‘‘The amendments made by this section [amending this section] shall apply to payments made for portions of cost reporting periods occurring in 2010 through 2019.’’ EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116–260, div. CC, title I, § 131(d), Dec. 27, 2020, 134 Stat. 2976, provided that: ‘‘The amendments made by this section [amending this section] shall apply to payment under section 1886 of the Social Security Act (42 U.S.C. 1395ww) for cost reporting periods beginning on or after the date of the enactment of this Act [Dec. 27, 2020].’’ EFFECTIVE DATE OF 2015 AMENDMENT Pub. L. 114–113, div. O, title VI, § 602(d), Dec. 18, 2015, 129 Stat. 3024, provided that: ‘‘The amendments made by this section [amending this section and section 1395w–23 of this title] shall apply as if included in the enactment of the American Recovery and Reinvest- ment Act of 2009 (Public Law 111–5), except that, in order to take into account delays in the implementa- tion of this section, in applying subsections (b)(3)(B)(ix), (n)(2)(E)(ii), and (n)(2)(G)(i) of section 1886 of the Social Security Act [42 U.S.C. 1395ww], as amend- ed by this section, any reference in such subsections to a particular year shall be treated with respect to a sub- section (d) Puerto Rico hospital as a reference to the year that is 5 years after such particular year (or 7 years after such particular year in the case of applying subsection (b)(3)(B)(ix) of such section).’’ Amendment by section 106(b)(2)(B) of Pub. L. 114–10 applicable to meaningful EHR users as of the date that is one year after Apr. 16, 2015, see section 106(b)(2)(C) of Pub. L. 114–10, set out as a note under section 1395w–4 of this title. EFFECTIVE DATE OF 2014 AMENDMENT Pub. L. 113–93, title I, § 112(d), Apr. 1, 2014, 128 Stat. 1045, provided that: ‘‘The amendments made by this section [amending this section and provisions set out as notes under this section] are effective as of the date of the enactment of this Act [Apr. 1, 2014].’’ EFFECTIVE DATE OF 2011 AMENDMENT Amendment by Pub. L. 112–40 applicable to contracts entered into or renewed on or after Jan. 1, 2012, see sec- tion 261(e) of Pub. L. 112–40, set out as a note under sec- tion 1320c of this title. EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–309, title II, § 203, Dec. 15, 2010, 124 Stat. 3289, provided that the amendment made by section 203 is effective as if included in the enactment of section 5503(a) of Pub. L. 111–148. Pub. L. 111–192, title I, § 102(b), June 25, 2010, 124 Stat. 1281, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall apply to serv- ices furnished on or after the date of the enactment of this Act [June 25, 2010].’’ Pub. L. 111–148, title III, § 3401(p), Mar. 23, 2010, 124 Stat. 488, provided that: ‘‘Notwithstanding the pre- ceding provisions of this section [amending this section and sections 1395f, 1395l, 1395m, 1395u, 1395rr, 1395yy, and 1395fff of this title], the amendments made by sub- sections (a), (c), and (d) [amending this section] shall not apply to discharges occurring before April 1, 2010.’’ Pub. L. 111–148, title V, § 5505(c), Mar. 23, 2010, 124 Stat. 661, provided that: ‘‘(1) IN GENERAL.—Except as otherwise provided, the Secretary of Health and Human Services shall imple- ment the amendments made by this section [amending this section] in a manner so as to apply to cost report- ing periods beginning on or after January 1, 1983. ‘‘(2) GME.—Section 1886(h)(4)(J) of the Social Secu- rity Act [42 U.S.C. 1395ww(h)(4)(J)], as added by sub- Page 3899 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww section (a)(1)(B), shall apply to cost reporting periods beginning on or after July 1, 2009. ‘‘(3) IME.—Section 1886(d)(5)(B)(x)(III) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(B)(x)(III)], as added by subsection (b), shall apply to cost reporting periods beginning on or after October 1, 2001. Such section, as so added, shall not give rise to any inference as to how the law in effect prior to such date should be inter- preted.’’ EFFECTIVE DATE OF 2007 AMENDMENT Pub. L. 110–173, title I, § 114(e)(2), Dec. 29, 2007, 121 Stat. 2505, provided that: ‘‘Subsection (m)(2) of section 1886 of the Social Security Act [42 U.S.C. 1395ww(m)(2)], as added by paragraph (1), shall not apply to discharges occurring on or after July 1, 2007, and before April 1, 2008.’’ Pub. L. 110–173, title I, § 115(a)(2), Dec. 29, 2007, 121 Stat. 2506, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall not apply to payment units occurring before April 1, 2008.’’ Pub. L. 110–161, div. G, title II, § 225(b)(2), Dec. 26, 2007, 121 Stat. 2189, provided that: ‘‘Subject to paragraph (3) [section 225(b) of title II of div. G of Pub. L. 110–161 does not contain a par. (3)], the amendments made by para- graph (1) [amending this section] shall take effect as if included in the enactment of section 422 of the Medi- care Prescription Drug, Improvement, and Moderniza- tion Act of 2003 (Public Law 108–173).’’ EFFECTIVE DATE OF 2006 AMENDMENT Amendment by section 109(a)(2) of Pub. L. 109–432 ap- plicable to payment for services furnished on or after Jan. 1, 2009, see section 109(c) of Pub. L. 109–432, set out as a note under section 1395l of this title. Amendment by section 205(b)(1) of Pub. L. 109–432 ef- fective as if included in the enactment of Pub. L. 109–171, see section 205(c) of Pub. L. 109–432, set out as a note under section 1395u of this title. EFFECTIVE DATE OF 2003 AMENDMENT Pub. L. 108–173, title IV, § 407(b), Dec. 8, 2003, 117 Stat. 2270, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to cost reporting periods beginning on or after January 1, 2004.’’ Pub. L. 108–173, title V, § 502(c), Dec. 8, 2003, 117 Stat. 2291, provided that: ‘‘The amendments made by this section [amending this section] shall apply to dis- charges occurring on or after April 1, 2004.’’ Pub. L. 108–173, title V, § 503(e), Dec. 8, 2003, 117 Stat. 2292, provided that: ‘‘(1) IN GENERAL.—The Secretary [of Health and Human Services] shall implement the amendments made by this section [amending this section] so that they apply to classification for fiscal years beginning with fiscal year 2005. ‘‘(2) RECONSIDERATIONS OF APPLICATIONS FOR FISCAL YEAR 2004 THAT ARE DENIED.—In the case of an applica- tion for a classification of a medical service or tech- nology as a new medical service or technology under section 1886(d)(5)(K) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(K)) that was filed for fiscal year 2004 and that is denied— ‘‘(A) the Secretary shall automatically reconsider the application as an application for fiscal year 2005 under the amendments made by this section; and ‘‘(B) the maximum time period otherwise permitted for such classification of the service or technology shall be extended by 12 months.’’ Pub. L. 108–173, title V, § 505(c), Dec. 8, 2003, 117 Stat. 2294, provided that: ‘‘The amendments made by this section [amending this section and section 1395cc of this title] shall first apply to the wage index for dis- charges occurring on or after October 1, 2004. In ini- tially implementing such amendments, the Secretary [of Health and Human Services] may modify the dead- lines otherwise applicable under clauses (ii) and (iii)(I) of section 1886(d)(10)(C) of the Social Security Act (42 U.S.C. 1395ww(d)(10)(C)), for submission of, and actions on, applications relating to changes in hospital geo- graphic reclassification.’’ EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–554, § 1(a)(6) [title II, § 212(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–485, provided that: ‘‘The amend- ment made by this section [amending this section] shall apply with respect to cost reporting periods be- ginning on or after April 1, 2001.’’ Pub. L. 106–554, § 1(a)(6) [title II, § 213(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–486, provided that: ‘‘The amend- ments made by this section [amending this section] shall take effect as if included in the enactment of sec- tion 405 of BBRA [Pub. L. 106–113, § 1000(a)(6) [title IV, § 405]] (113 Stat. 1501A–372).’’ Pub. L. 106–554, § 1(a)(6) [title III, § 301(e)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–492, provided that: ‘‘The amendment made by paragraph (1) [amending this sec- tion] shall apply to discharges occurring on or after Oc- tober 1, 2001.’’ Pub. L. 106–554, § 1(a)(6) [title III, § 303(d)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–494, provided that: ‘‘The amendment made by paragraph (1) [amending this sec- tion] is effective as if included in the enactment of BBA [Pub. L. 105–33].’’ Pub. L. 106–554, § 1(a)(6) [title III, § 305(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A–496, provided that: ‘‘The amendments made by this section [amending this sec- tion] take effect as if included in the enactment of BBA [Pub. L. 105–33].’’ Pub. L. 106–554, § 1(a)(6) [title V, § 512(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–534, provided that: ‘‘The amend- ment made by subsection (a) [amending this section] shall apply to portions of cost reporting periods occur- ring on or after January 1, 2001.’’ EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 121(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–330, provided that: ‘‘The amendments made by subsection (a) [amending this section] apply to cost reporting periods beginning on or after October 1, 1999.’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 125(c)], Nov. 29, 1999, 113 Stat. 1536, 1501A–333, provided that: ‘‘The amendments made by subsection (a) [amending this section] are effective as if included in the enact- ment of section 4421(a) of BBA [the Balanced Budget Act of 1997, Pub. L. 105–33].’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 312(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–365, provided that: ‘‘The amendments made by subsection (a) [amending this section] apply on and after July 1, 2000, to resi- dency programs that began before, on, or after the date of the enactment of this Act [Nov. 29, 1999].’’ Amendment by section 1000(a)(6) [title III, § 321(b), (e), (f), (h), (k)(15)–(17)] of Pub. L. 106–113 effective as if in- cluded in the enactment of the Balanced Budget Act of 1997, Pub. L. 105–33, except as otherwise provided, see section 1000(a)(6) [title III, § 321(m)] of Pub. L. 106–113, set out as a note under section 1395d of this title. Amendment by section 1000(a)(6) [title IV, § 401(a)] of Pub. L. 106–113 effective Jan. 1, 2000, see section 1000(a)(6) [title IV, § 401(c)] of Pub. L. 106–113, set out as a note under section 1395i–4 of this title. Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 402(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–370, provided that: ‘‘The amendments made by subsection (a) [amending this section] apply with respect to discharges occurring during cost reporting periods beginning on or after Oc- tober 1, 1999.’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 407(a)(3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–373, provided that: ‘‘(A) DGME.—The amendments made by paragraph (1) [amending this section] apply to cost reporting periods that begin on or after the date of the enactment of this Act [Nov. 29, 1999]. ‘‘(B) IME.—The amendment made by paragraph (2) [amending this section] applies to discharges occurring Page 3900 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww in cost reporting periods that begin on or after such date of enactment.’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 407(b)(3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–374, provided that: ‘‘(A) DGME.—The amendment made by paragraph (1) [amending this section] applies to cost reporting peri- ods beginning on or after April 1, 2000. ‘‘(B) IME.—The amendment made by paragraph (2) [amending this section] applies to discharges occurring on or after April 1, 2000.’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 407(c)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A–374, provided that: ‘‘The amendment made by paragraph (1) [amending this section] applies with respect to— ‘‘(A) payments to hospitals under section 1886(h) of the Social Security Act (42 U.S.C. 1395ww(h)) for cost reporting periods beginning on or after April 1, 2000; and ‘‘(B) payments to hospitals under section 1886(d)(5)(B)(v) of such Act (42 U.S.C. 1395ww(d)(5)(B)(v)) for discharges occurring on or after April 1, 2000.’’ EFFECTIVE DATE OF 1997 AMENDMENT Amendment by section 4022(b) of Pub. L. 105–33 effec- tive Nov. 1, 1997, the date of termination of the Pro- spective Payment Assessment Commission and the Physician Payment Review Commission, see section 4022(c)(2) of Pub. L. 105–33, set out as an Effective Date; Transition; Transfer of Functions note under section 1395b–6 of this title. Amendment by section 4201(c)(1), (4) of Pub. L. 105–33 applicable to services furnished on or after Oct. 1, 1997, see section 4201(d) of Pub. L. 105–33, set out as a note under section 1395f of this title. Pub. L. 105–33, title IV, § 4204(b), Aug. 5, 1997, 111 Stat. 376, provided that: ‘‘The amendments made by sub- section (a) [amending this section and provisions set out as a note below] shall apply with respect to dis- charges occurring on or after October 1, 1997.’’ Pub. L. 105–33, title IV, § 4405(d), Aug. 5, 1997, 111 Stat. 400, provided that: ‘‘The amendments made by this sec- tion [amending this section] apply to discharges occur- ring after September 30, 1997.’’ Pub. L. 105–33, title IV, § 4415(e), Aug. 5, 1997, 111 Stat. 407, provided that: ‘‘The amendments made by sub- sections (a) and (c) [amending this section] shall apply with respect to cost reporting periods beginning on or after October 1, 1997.’’ Pub. L. 105–33, title IV, § 4417(a)(2), Aug. 5, 1997, 111 Stat. 408, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to discharges occurring on or after October 1, 1995.’’ Pub. L. 105–33, title IV, § 4417(b)(2), Aug. 5, 1997, 111 Stat. 408, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to cost reporting periods beginning on or after the date of the enactment of this Act [Aug. 5, 1997].’’ Pub. L. 105–33, title IV, § 4419(a)(2), Aug. 5, 1997, 111 Stat. 409, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to hospitals or units that first qualify as a hospital or unit described in section 1886(d)(1)(B) (42 U.S.C. 1395ww(d)(1)(B)) for cost reporting periods beginning on or after October 1, 1997.’’ Pub. L. 105–33, title IV, § 4421(c), Aug. 5, 1997, 111 Stat. 413, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to cost report- ing periods beginning on or after October 1, 2000, except that the Secretary of Health and Human Services may require the submission of data under section 1886(j)(2)(D) of the Social Security Act [42 U.S.C. 1395ww(j)(2)(D)] (as added by subsection (a)) on and after the date of the enactment of this section [Aug. 5, 1997].’’ Pub. L. 105–33, title IV, § 4627(b), Aug. 5, 1997, 111 Stat. 483, provided that: ‘‘The amendments made by sub- section (a) [amending this section] apply to combined medical residency training programs in effect for resi- dency years beginning on or after July 1, 1997.’’ EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–432, title I, § 101(a)(2), Oct. 31, 1994, 108 Stat. 4400, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect as if included in the enactment of OBRA–1989 [Pub. L. 101–239].’’ Pub. L. 103–432, title I, § 153(b), Oct. 31, 1994, 108 Stat. 4437, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply as if in- cluded in the enactment of the Consolidated Omnibus Budget Reconciliation Act of 1985 (Public Law 99–272).’’ EFFECTIVE DATE OF 1993 AMENDMENT Pub. L. 103–66, title XIII, § 13501(b)(3), Aug. 10, 1993, 107 Stat. 574, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to discharges occurring on or after October 1, 1991.’’ Pub. L. 103–66, title XIII, § 13563(b)(2), Aug. 10, 1993, 107 Stat. 605, provided that: ‘‘The amendments made by paragraphs (1)(A) and (1)(B) [amending this section] shall take effect on July 1, 1995, and the date of the en- actment of this Act [Aug. 10, 1993], respectively.’’ Pub. L. 103–66, title XIII, § 13563(c)(2), Aug. 10, 1993, 107 Stat. 606, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to payments under section 1886(h) of the Social Security Act [42 U.S.C. 1395ww(h)] for cost reporting periods be- ginning on or after October 1, 1992.’’ EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–508, title IV, § 4002(a)(2), Nov. 5, 1990, 104 Stat. 1388–32, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply to payments for discharges occurring on or after January 1, 1991.’’ Pub. L. 101–508, title IV, § 4002(b)(5), Nov. 5, 1990, 104 Stat. 1388–33, provided that: ‘‘The amendments made by paragraphs (1), (3), and (4)(B) [amending this section] shall apply to discharges occurring on or after January 1, 1991, the amendment made by paragraph (2) [amend- ing this section] shall apply to discharges occurring on or after October 1, 1991, and the amendment made by paragraph (4)(A) [amending this section] shall take ef- fect as if included in the enactment of the Omnibus Budget Reconciliation Act of 1989 [Pub. L. 101–239].’’ Pub. L. 101–508, title IV, § 4002(c)(3), Nov. 5, 1990, 104 Stat. 1388–35, provided that: ‘‘The amendments made by paragraph (1) and paragraph (2)(A) [amending this sec- tion] shall apply to payments for discharges occurring on or after January 1, 1991, and the amendments made by paragraph (2)(B) [amending this section] shall take effect October 1, 1994.’’ Pub. L. 101–508, title IV, § 4002(e)(4)[(3)], Nov. 5, 1990, 104 Stat. 1388–36, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to discharges occurring on or after October 1, 1990.’’ Pub. L. 101–508, title IV, § 4002(g)(5), Nov. 5, 1990, 104 Stat. 1388–37, provided that: ‘‘The amendments made by this subsection [amending this section and section 1395w–1 of this title] shall take effect on the date of the enactment of this Act [Nov. 5, 1990].’’ Pub. L. 101–508, title IV, § 4002(h)(1)(B), Nov. 5, 1990, 104 Stat. 1388–38, provided that: ‘‘The amendments made by subparagraph (A) [amending this section] shall apply to discharges occurring on or after January 1, 1991.’’ Pub. L. 101–508, title IV, § 4003(b), Nov. 5, 1990, 104 Stat. 1388–39, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply— ‘‘(1) in the case of any services provided during the day immediately preceding the date of a patient’s ad- mission (without regard to whether the services are related to the admission), to services furnished on or after the date of the enactment of this Act [Nov. 5, 1990] and before October 1, 1991; ‘‘(2) in the case of diagnostic services (including clinical diagnostic laboratory tests), to services fur- nished on or after January 1, 1991; and ‘‘(3) in the case of any other services, to services furnished on or after October 1, 1991.’’ Page 3901 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Pub. L. 101–508, title IV, § 4005(a)(2), Nov. 5, 1990, 104 Stat. 1388–40, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1991.’’ Pub. L. 101–508, title IV, § 4005(c)(4), Nov. 5, 1990, 104 Stat. 1388–42, provided that: ‘‘The amendments made by paragraph (1) [amending this section and section 1395h of this title] shall take effect on the date of the enact- ment of this Act [Nov. 5, 1990], and the amendments made by paragraph (2) [amending this section] shall take effect as if included in the enactment of the Omni- bus Budget Reconciliation Act of 1989 [Pub. L. 101–239].’’ Pub. L. 101–508, title IV, § 4008(f)(2), Nov. 5, 1990, 104 Stat. 1388–45, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect as if included in the enactment of the Omnibus Budget Reconciliation Act of 1989 [Pub. L. 101–239].’’ EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–239, title VI, § 6003(a)(2), Dec. 19, 1989, 103 Stat. 2140, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply to payments for discharges occurring on or after January 1, 1990.’’ Pub. L. 101–239, title VI, § 6003(c)(4), Dec. 19, 1989, 103 Stat. 2142, provided that: ‘‘The amendments made by this subsection [amending this section] shall apply with respect to discharges occurring on or after April 1, 1990.’’ Pub. L. 101–239, title VI, § 6003(h)(7), Dec. 19, 1989, 103 Stat. 2158, provided that: ‘‘The amendments made by paragraphs (3) and (4) [amending this section] shall apply to discharges occurring on or after April 1, 1990.’’ Pub. L. 101–239, title VI, § 6004(a)(3), Dec. 19, 1989, 103 Stat. 2159, provided that: ‘‘The amendments made by this subsection [amending this section] shall apply with respect to cost reporting periods beginning on or after October 1, 1989, except that— ‘‘(A) in the case of a hospital classified by the Sec- retary of Health and Human Services as a hospital in- volved extensively in treatment for or research on cancer under section 1886(d)(5)(I) of the Social Secu- rity Act [42 U.S.C. 1395ww(d)(5)(I)] (as redesignated by section 6003(e)(1)(A)) after the date of the enactment of this Act [Dec. 19, 1989], such amendments shall apply with respect to cost reporting periods begin- ning on or after the date of such classification, ‘‘(B) in the case of a hospital that is not described in subparagraph (A), such amendments shall apply with respect to portions of cost reporting periods or discharges occurring during and after fiscal year 1987 for purposes of section 1886(g) of the Social Security Act [42 U.S.C. 1395ww(g)], and ‘‘(C) such amendments shall take effect 30 days after the date of the enactment of this Act for pur- poses of determining the eligibility of a hospital to receive periodic interim payments under section 1815(e)(2) of the Social Security Act [42 U.S.C. 1395g(e)(2)].’’ Pub. L. 101–239, title VI, § 6004(b)(2), Dec. 19, 1989, 103 Stat. 2160, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply with respect to cost reporting periods beginning on or after April 1, 1989.’’ Pub. L. 101–239, title VI, § 6011(d), Dec. 19, 1989, 103 Stat. 2161, as amended by Pub. L. 103–66, title XIII, § 13505, Aug. 10, 1993, 107 Stat. 579; Pub. L. 105–33, title IV, § 4452, Aug. 5, 1997, 111 Stat. 425, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply with respect to items furnished 6 months after the date of enactment of this Act [Dec. 19, 1989] and on or before September 30, 1994, and on or after October 1, 1997.’’ [Pub. L. 103–66, title XIII, § 13505, Aug. 10, 1993, 107 Stat. 579, provided in part that the amendment made by that section to section 6011(d) of Pub. L. 101–239, set out above, is effective as if included in the enactment of Pub. L. 101–239.] Pub. L. 101–239, title VI, § 6015(c), Dec. 19, 1989, 103 Stat. 2164, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall become ef- fective with respect to cost reporting periods beginning on or after April 1, 1990.’’ EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 1018(r)(1) of Pub. L. 100–647 ef- fective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under sec- tion 1 of Title 26, Internal Revenue Code. Amendment by Pub. L. 100–485 effective as if included in the enactment of the Medicare Catastrophic Cov- erage Act of 1988, Pub. L. 100–360, see section 608(g)(1) of Pub. L. 100–485, set out as a note under section 704 of this title. Except as specifically provided in section 411 of Pub. L. 100–360, amendment by Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, effective as if included in the enactment of that provision in Pub. L. 100–203, see section 411(a) of Pub. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions. EFFECTIVE DATE OF 1987 AMENDMENT Pub. L. 100–203, title IV, § 4002(g), Dec. 22, 1987, 101 Stat. 1330–45, as amended by Pub. L. 100–360, title IV, § 411(b)(1)(I), July 1, 1988, 102 Stat. 769, provided that: ‘‘(1) PPS HOSPITALS, DRG PORTION OF PAYMENT.—In the case of a subsection (d) hospital (as defined in para- graph (6))— ‘‘(A) the amendments made by subsections (a) and (c) [amending this section] shall apply to payments made under section 1886(d)(1)(A)(iii) of the Social Se- curity Act [42 U.S.C. 1395ww(d)(1)(A)(iii)] on the basis of discharges occurring on or after April 1, 1988, and ‘‘(B) for discharges occurring on or after October 1, 1988, the applicable percentage increase (described in section 1886(b)(3)(B) of such Act [42 U.S.C. 1395ww(b)(3)(B)]) for discharges occurring during fis- cal year 1987 is deemed to have been such percentage increase as amended by subsection (a). ‘‘(2) PPS SOLE COMMUNITY HOSPITALS, HOSPITAL SPE- CIFIC PORTION OF PAYMENT.—In the case of a subsection (d) hospital which receives payments made under sec- tion 1886(d)(1)(A) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(A)] because it is a sole community hos- pital— ‘‘(A) the amendment made by subsections (a) and (c) [amending this section] shall apply to payments under section 1886(d)(1)(A)(ii)(I) of the Social Security Act made on the basis of discharges occurring during a cost reporting period of a hospital, for the hos- pital’s cost reporting period beginning on or after Oc- tober 1, 1987; ‘‘(B) notwithstanding subparagraph (A), for cost re- porting period beginning during fiscal year 1988, the applicable percentage increase (as defined in section 1886(b)(3)(B) of such Act [42 U.S.C. 1395ww(b)(3)(B)]) for the— ‘‘(i) first 51 days of the cost reporting period shall be 0 percent, ‘‘(ii) next 132 days of such period shall be 2.7 per- cent, and ‘‘(iii) remainder of such period of the cost report- ing period shall be the applicable percentage in- crease (as so defined, as amended by subsection (a)); and ‘‘(C) for cost reporting periods beginning on or after October 1, 1988, the applicable percentage increase (as so defined) with respect to the previous cost report- ing period shall be deemed to have been the applica- ble percentage increase (as so defined, as amended by subsection (a)). ‘‘(3) PPS-EXEMPT HOSPITALS.—In the case of a hos- pital that is not a subsection (d) hospital— Page 3902 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(A) the amendments made by subsection (e) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1987; ‘‘(B) notwithstanding subparagraph (A), for the hos- pital’s cost reporting period beginning during fiscal year 1988, payment under title XVIII of the Social Se- curity Act [42 U.S.C. 1395 et seq.] shall be made as though the applicable percentage increase described in section 1886(b)(3)(B) of such Act [42 U.S.C. 1395ww(b)(3)(B)] were equal to the product of 2.7 per- cent and the ratio of 315 to 366; and ‘‘(C) for cost reporting periods beginning on or after October 1, 1988, the applicable percentage increase (as so defined) with respect to the cost reporting period beginning during fiscal year 1988 shall be deemed to have been 2.7 percent. ‘‘(4) DEFINITION, REGIONAL FLOOR, AND TECHNICAL AND CONFORMING AMENDMENTS.—The amendments made by subsections (b) and (d) and paragraphs (1) and (2) of sub- section (f) [amending this section and provisions set out as a note below] shall take effect on the date of the enactment of this Act [Dec. 22, 1987]. ‘‘(5) TRANSITION FOR LARGE URBAN AREA RATES.—In computing the average standardized amount for hos- pitals located in a large urban area or other urban area under section 1886(d)(3)(A)(ii) of the Social Security Act [42 U.S.C. 1395ww(d)(3)(A)(ii)] (as amended by sub- section (c)) for fiscal year 1988, the reference to ‘the re- spective average standardized amount computed for the previous fiscal year under this subparagraph’ is deemed a reference to the average standardized amount com- puted for hospitals located in an urban area for the 51- day period beginning on October 1, 1987. ‘‘(6) DEFINITION.—In this subsection, the term ‘sub- section (d) hospital’ has the meaning given such term in section 1886(d)(1)(B) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(B)].’’ Pub. L. 100–203, title IV, § 4003(e), Dec. 22, 1987, 101 Stat. 1330–47, provided that: ‘‘The amendments made by this section [amending this section] shall apply to pay- ments for discharges occurring on or after October 1, 1988.’’ Pub. L. 100–203, title IV, § 4005(a)(3), Dec. 22, 1987, 101 Stat. 1330–48, as amended by Pub. L. 100–360, title IV, § 411(b)(4)(C)(ii), July 1, 1988, 102 Stat. 770, provided that: ‘‘This subsection [amending this section] shall apply to discharges occurring on or after October 1, 1988.’’ Pub. L. 100–203, title IV, § 4005(c)(2)(A), Dec. 22, 1987, 101 Stat. 1330–49, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1987[.]’’ Pub. L. 100–203, title IV, § 4005(d)(1)(B), Dec. 22, 1987, 101 Stat. 1330–49, provided that: ‘‘The amendment made by subparagraph (A) [amending this section] shall apply to discharges occurring on or after April 1, 1988.’’ Pub. L. 100–203, title IV, § 4006(b)(3), Dec. 22, 1987, 101 Stat. 1330–53, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect on October 1, 1987. The amendments made by paragraph (2) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1987.’’ Pub. L. 100–203, title IV, § 4007(b)(2), Dec. 22, 1987, 101 Stat. 1330–53, as amended by Pub. L. 100–360, title IV, § 411(b)(6)(B), July 1, 1988, 102 Stat. 770, provided that: ‘‘The amendment made by paragraph (1)(C) [amending this section] shall apply to hospital cost reporting peri- ods beginning on or after October 1, 1989.’’ Pub. L. 100–203, title IV, § 4009(d)(2), Dec. 22, 1987, 101 Stat. 1330–57, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply to ap- pointments made after the date of the enactment of this Act [Dec. 22, 1987].’’ Pub. L. 100–203, title IV, § 4009(j)(6), Dec. 22, 1987, 101 Stat. 1330–59, provided that the amendment made by that section is effective as if included in the enactment of Pub. L. 99–509. Pub. L. 100–203, title IV, § 4083(b)(2), Dec. 22, 1987, 101 Stat. 1330–129, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall take ef- fect on the date of the enactment of this Act [Dec. 22, 1987].’’ Amendment by Pub. L. 100–93 effective at end of four- teen-day period beginning Aug. 18, 1987, and inappli- cable to administrative proceedings commenced before end of such period, see section 15(a) of Pub. L. 100–93, set out as a note under section 1320a–7 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–514, title XVIII, § 1895(b)(1)(D), Oct. 22, 1986, 100 Stat. 2932, which provided for applicability of amendments to this section by section 1895(b)(1) of Pub. L. 99–514 to discharges occurring on or after Oct. 1, 1986, with certain exceptions, was repealed by Pub. L. 99–509, title IX, § 9307(c)(1)(A), Oct. 21, 1986, 100 Stat. 1995, and by Pub. L. 100–647, title I, § 1018(r)(1), Nov. 10, 1988, 102 Stat. 3586. Pub. L. 99–514, title XVIII, § 1895(b)(2)(b), formerly § 1895(b)(2)(D), Oct. 22, 1986, 100 Stat. 2932, as amended by Pub. L. 99–509, title IX, § 9307(c)(1)(B)(iii), as amend- ed by Pub. L. 100–203, title IV, § 4009(j)(6)(A), Dec. 22, 1987, 101 Stat. 1330–59, which provided for applicability of amendments to this section by section 1895(b)(2)(A) of Pub. L. 99–514 to discharges occurring on or after May 1, 1986, was repealed by Pub. L. 100–647, title I, § 1018(r)(1), Nov. 10, 1988, 102 Stat. 3586. Amendment by section 1895(b)(3), (9) of Pub. L. 99–514 effective, except as otherwise provided, as if included in enactment of the Consolidated Omnibus Budget Rec- onciliation Act of 1985, Pub. L. 99–272, see section 1895(e) of Pub. L. 99–514, set out as a note under section 162 of Title 26, Internal Revenue Code. Pub. L. 99–509, title IX, § 9302(a)(3), Oct. 21, 1986, 100 Stat. 1982, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1986 and, for purposes of section 1886(d) of the Social Se- curity Act [42 U.S.C. 1395ww(d)], for cost reporting peri- ods beginning and discharges occurring on or after Oc- tober 1, 1986.’’ Pub. L. 99–509, title IX, § 9302(b)(2), Oct. 21, 1986, 100 Stat. 1982, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply to discharges occurring on or after October 1, 1986.’’ Pub. L. 99–509, title IX, § 9302(d)(1)(B), Oct. 21, 1986, 100 Stat. 1983, provided that: ‘‘(i) Subject to clause (ii), the amendments made by subparagraph (A) [amending this section] shall apply to payments for discharges occurring on or after October 1, 1986. ‘‘(ii) An appeal for classification of a rural hospital as a regional referral center, pursuant to the amendments made by subparagraph (A), which is filed before Janu- ary 1, 1987, and which is approved shall be effective with respect to discharges occurring on or after Octo- ber 1, 1986.’’ Pub. L. 99–509, title IX, § 9303(b), Oct. 21, 1986, 100 Stat. 1985, provided that the amendment made by such sec- tion 9303(b) is effective for cost reporting periods begin- ning and discharges occurring (as the case may be) on or after Oct. 1, 1987. Pub. L. 99–509, title IX, § 9304(d), Oct. 21, 1986, 100 Stat. 1988, provided that: ‘‘The amendments made by this section [amending this section] shall apply to dis- charges occurring on or after October 1, 1987.’’ Pub. L. 99–509, title IX, § 9306(d), Oct. 21, 1986, 100 Stat. 1995, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section] shall apply to discharges occurring on or after October 1, 1986.’’ Pub. L. 99–509, title IX, § 9307(c)(1), Oct. 21, 1986, 100 Stat. 1995, provided that the amendment made by such section 9307(c)(1) is effective as if included in the enact- ment of the Tax Reform Act of 1986 (Pub. L. 99–514), if H.Con.Res. 395, 99th Congress, 2d Session, is not adopt- ed. H.Con.Res. 395 was not adopted. Pub. L. 99–509, title IX, § 9314(b), Oct. 21, 1986, 100 Stat. 2005, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall apply to pay- ments for approved residency training programs as of July 1, 1987.’’ Page 3903 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Amendment by section 9320(g) of Pub. L. 99–509 appli- cable to services furnished on or after Jan. 1, 1989, with exceptions for hospitals located in rural areas which meet certain requirements related to certified reg- istered nurse anesthetists, see section 9320(i), (k) of Pub. L. 99–509, as amended, set out as notes under sec- tion 1395k of this title. Pub. L. 99–509, title IX, § 9321(e)(3)(B), Oct. 21, 1986, 100 Stat. 2018, provided that: ‘‘The amendments made by paragraph (2) [amending this section] shall take effect beginning with fiscal year 1989.’’ Pub. L. 99–272, title IX, § 9101(d), Apr. 7, 1986, 100 Stat. 154, provided that: ‘‘The amendment made by sub- section (a) [amending section 5(c) of Pub. L. 99–107, set out below] shall take effect on March 15, 1986, and the amendments made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act [Apr. 7, 1986].’’ Pub. L. 99–272, title IX, § 9101(e), Apr. 7, 1986, 100 Stat. 154, provided that: ‘‘(1) PPS HOSPITALS, DRG PORTION OF PAYMENT.—In the case of a subsection (d) hospital (as defined in para- graph (4))— ‘‘(A) the amendment made by subsection (b) [amending this section] shall apply to payments made under section 1886(d)(1)(A) of such Act [42 U.S.C. 1395ww(d)(1)(A)] made on the basis of discharges oc- curring on or after May 1, 1986; and ‘‘(B) for discharges occurring on or after October 1, 1986, the applicable percentage increase (described in section 1886(b)(3)(B) [42 U.S.C. 1395ww(b)(3)(B)]) for discharges occurring during fiscal year 1986 shall be deemed to have been 1⁄2 percent. ‘‘(2) PPS HOSPITALS, HOSPITAL SPECIFIC PORTION OF PAYMENT.—In the case of a subsection (d) hospital— ‘‘(A) the amendment made by subsection (b) [amending this section] shall apply to payments under section 1886(d)(1)(A) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(A)] made on the basis of dis- charges occurring during a cost reporting period of a hospital, for the hospital’s cost reporting periods be- ginning on or after October 1, 1985; ‘‘(B) notwithstanding subparagraph (A), for the cost reporting period beginning during fiscal year 1986, the applicable percentage increase (as defined in section 1886(b)(3)(B) of such Act [42 U.S.C. 1395ww(b)(3)(B)]) for the— ‘‘(i) first 7 months of the cost reporting period shall be 0 percent, and ‘‘(ii) for the remaining 5 months of the cost re- porting period shall be 1⁄2 percent; and ‘‘(C) for cost reporting periods beginning on or after October 1, 1986, the applicable percentage increase (as so defined) with respect to the previous cost report- ing period shall be deemed to have been 1⁄2 percent. ‘‘(3) PPS-EXEMPT HOSPITALS.—In the case of a hos- pital that is not a subsection (d) hospital— ‘‘(A) the amendment made by subsection (b) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1985; ‘‘(B) notwithstanding subparagraph (A), for the hos- pital’s cost reporting period beginning during fiscal year 1986, payment under title XVIII of the Social Se- curity Act [42 U.S.C. 1395 et seq.] shall be made as though the applicable percentage increase described in section 1886(b)(3)(B) [42 U.S.C. 1395ww(b)(3)(B)] were equal to 5⁄24 of 1 percent; and ‘‘(C) for cost reporting periods beginning on or after October 1, 1986, the applicable percentage increase (as so defined) with respect to the cost reporting period beginning during fiscal year 1986 shall be deemed to have been 1⁄2 percent. ‘‘(4) DEFINITION.—In this subsection, the term ‘sub- section (d) hospital’ has the meaning given such term in section 1886(d)(1)(B) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(B)].’’ Pub. L. 99–272, title IX, § 9102(d), Apr. 7, 1986, 100 Stat. 155, provided that: ‘‘(1) DELAY IN FINAL TRANSITION.—The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Apr. 7, 1986].’’ ‘‘(2) CHANGE IN HOSPITAL SPECIFIC PERCENTAGE.—The amendments made by subsection (b) [amending this section] shall apply— ‘‘(A) to cost reporting periods beginning on or after October 1, 1985, but ‘‘(B) notwithstanding subparagraph (A), for a hos- pital’s cost reporting period beginning during fiscal year 1986, for purposes of section 1886(d)(1)(A) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(A)]— ‘‘(i) during the first 7 months of the period the ‘target percentage’ is 50 percent and the ‘DRG per- centage’ is 50 percent, and ‘‘(ii) during the remaining 5 months of the period the ‘target percentage’ is 45 percent and the ‘DRG percentage’ is 55 percent. ‘‘(3) CHANGE IN BLENDED RATE.—The amendments made by subsection (c) [amending this section] shall apply to discharges occurring on or after May 1, 1986. ‘‘(4) EXCEPTION.— ‘‘(A) Notwithstanding any other provision of this subsection, the amendments made by this section [amending this section] shall not apply to payments with respect to the operating costs of inpatient hos- pital services (as defined in section 1886(a)(4) of the Social Security Act [42 U.S.C. 1395ww(a)(4)]) of a sub- section (d) hospital (as defined in section 1886(d)(1)(B) of such Act [42 U.S.C. 1395ww(d)(1)(B)]) located in the State of Oregon. ‘‘(B) Notwithstanding any other provision of law, for a cost reporting period beginning during fiscal year 1986 of a subsection (d) hospital to which the amendments made by this section [amending this section] do not apply, for purposes of section 1886(d)(1)(A) of of [sic] Social Security Act [42 U.S.C. 1395ww(d)(1)(A)]— ‘‘(i) during the first 7 months of the period the ‘target percentage’ is 50 percent and the ‘DRG per- centage’ is 50 percent, and ‘‘(ii) during the remaining 5 months of the period the ‘target percentage’ is 25 percent and the ‘DRG percentage’ is 75 percent. ‘‘(C) Notwithstanding any other provision of law, for purposes of section 1886(d)(1)(D) of such Act [42 U.S.C. 1395ww(d)(1)(D)], the applicable combined ad- justed DRG prospective payment rate for a sub- section (d) hospital to which the amendments made by this section [amending this section] do not apply is, for discharges occurring on or after October 1, 1985, and before May 1, 1986, a combined rate con- sisting of 25 percent of the national adjusted DRG prospective payment rate and 75 percent of the re- gional adjusted DRG prospective payment rate for such discharges.’’ Pub. L. 99–272, title IX, § 9104(c), Apr. 7, 1986, 100 Stat. 158, provided that: ‘‘(1) Except as provided in paragraph (2), the amend- ments made by this section [amending this section] shall apply to discharges occurring on or after May 1, 1986. ‘‘(2) The amendments made by this section shall not first be applied to discharges occurring as of a date un- less, for discharges occurring on that date, the amend- ments made by section 9105 [amending this section] are also being applied.’’ Pub. L. 99–272, title IX, § 9105(e), Apr. 7, 1986, 100 Stat. 160, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to discharges occurring on or after May 1, 1986.’’ Pub. L. 99–272, title IX, § 9106(b), Apr. 7, 1986, 100 Stat. 160, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to cost reporting periods beginning on or after January 1, 1986.’’ Pub. L. 99–272, title IX, § 9107(c)(1), Apr. 7, 1986, 100 Stat. 161, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply to hospital cost reporting periods beginning on or after October 1, 1986.’’ Page 3904 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Pub. L. 99–272, title IX, § 9109(b), Apr. 7, 1986, 100 Stat. 162, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall take effect on the date of the enactment of this Act [Apr. 7, 1986].’’ Pub. L. 99–272, title IX, § 9111(b), Apr. 7, 1986, 100 Stat. 162, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to payments for cost reporting periods beginning on or after October 1, 1983, and before October 1, 1989.’’ Pub. L. 99–272, title IX, § 9202(b), Apr. 7, 1986, 100 Stat. 175, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to hos- pital cost reporting periods beginning on or after July 1, 1985.’’ EFFECTIVE AND TERMINATION DATES OF 1984 AMENDMENT Amendment by Pub. L. 98–617 effective as if originally included in the Deficit Reduction Act of 1984, Pub. L. 98–369, see section 3(c) of Pub. L. 98–617, set out as a note under section 1395f of this title. Pub. L. 98–369, div. B, title III, § 2307(b)(2), July 18, 1984, 98 Stat. 1074, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1984.’’ Pub. L. 98–369, div. B, title III, § 2310(b), July 18, 1984, 98 Stat. 1075, provided that: ‘‘The amendments made by this section [amending this section] shall apply to cost reporting periods beginning in, and discharges occur- ring in, fiscal year 1985 and thereafter.’’ Pub. L. 98–369, div. B, title III, § 2311(d), July 18, 1984, 98 Stat. 1077, provided that: ‘‘(1) Except as provided in paragraph (2), the amend- ments made by subsections (b) and (c) [amending this section] shall be effective with respect to cost report- ing periods beginning on or after October 1, 1983, and the amendment made by subsection (a) [amending this section] shall be effective with respect to cost report- ing periods beginning on or after October 1, 1984. ‘‘(2) The amendment made by subsection (b) [amend- ing this section] shall not apply so as to reduce any payment under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] to a hospital the region of which is deemed to be changed pursuant to such amendment for discharges occurring in any cost report- ing period beginning before October 1, 1984.’’ Pub. L. 98–369, div. B, title III, § 2312(c), July 18, 1984, 98 Stat. 1078, as amended by Pub. L. 99–509, title IX, § 9320(a), Oct. 21, 1986, 100 Stat. 2013; Pub. L. 100–360, title IV, § 411(p), July 1, 1988, as added by Pub. L. 100–485, title VI, § 608(d)(29), Oct. 13, 1988, 102 Stat. 2424, provided that: ‘‘The amendments made by subsections (a) and (b) [amending this section] shall apply to cost reporting periods beginning on or after October 1, 1984, and before January 1, 1989. In the case of a cost report- ing period that begins before January 1, 1989, but ends after such date, additional payments under the amend- ment made by subsection (a) shall be proportionately reduced to reflect the portion of the period occurring after such date.’’ Amendment by section 2313(a), (b), (d) of Pub. L. 98–369 effective July 18, 1984, see section 2313(e) of Pub. L. 98–369, set out as an Effective Date of 1984 Amend- ment note under section 1395y of this title. Pub. L. 98–369, div. B, title III, § 2315(g), July 18, 1984, 98 Stat. 1080, provided that: ‘‘The amendments made by this section [amending this section and sections 1395i–2 and 1395cc of this title and enacting and amending pro- visions set out as notes under this section] shall be ef- fective as though they had been included in the enact- ment of the Social Security Amendments of 1983 (Pub- lic Law 98–21).’’ Amendment by section 2354(b)(42)–(44) of Pub. L. 98–369 effective July 18, 1984, but not to be construed as changing or affecting any right, liability, status, or in- terpretation which existed (under the provisions of law involved) before that date, see section 2354(e)(1) of Pub. L. 98–369, set out as an Effective Date of 1984 Amend- ment note under section 1320a–1 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 98–21, title VI, § 601(b)(9), Apr. 20, 1983, 97 Stat. 150, provided that the repeal of subsec. (b)(6) of this sec- tion is effective with respect to cost reporting periods beginning on or after October 1, 1982, and that the en- actment of a new subsec. (b)(6) of this section is effec- tive with respect to cost reporting periods beginning on or after October 1, 1983. Pub. L. 98–21, title VI, § 604, Apr. 20, 1983, 97 Stat. 168, as amended by Pub. L. 98–369, div. B, title III, § 2315(f)(1), July 18, 1984, 98 Stat. 1080, provided that: ‘‘(a)(1) Except as provided in section 602(l) [amending section 1395cc of this title] and in paragraph (2), the amendments made by the preceding provisions of this title [amending this section and sections 1320c–2, 1395f, 1395n, 1395x, 1395y, 1395cc, 1395mm, 1395oo, 1395rr, and 1395xx of this title] apply to items and services fur- nished by or under arrangements with a hospital begin- ning with its first cost reporting period that begins on or after October 1, 1983. A change in a hospital’s cost re- porting period that has been made after November 1982 shall be recognized for purposes of this section only if the Secretary finds good cause for that change. ‘‘(2) Section 1866(a)(1)(F) of the Social Security Act [42 U.S.C. 1395cc(a)(1)(F)] (as added by section 602(f)(1)(C) of this title), section 1862(a)(14) [42 U.S.C. 1395y(a)(14)] (as added by section 602(e)(3) of this title) and sections 1886(a)(1)(G) and (H) of such Act [probably should be section 1866(a)(1)(G) and (H), 42 U.S.C. 1395cc(a)(1)(G), (H)] (as added by section 602(f)(1)(C) of this title) take effect on October 1, 1983. ‘‘(b) The Secretary shall make an appropriate reduc- tion in the payment amount under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] (as amended by this title) for any discharge, if the admis- sion has occurred before a hospital’s first cost report- ing period that begins after September 1983, to take into account amounts payable under title XVIII of that Act [42 U.S.C. 1395 et seq.] (as in effect before the date of the enactment of this Act [Apr. 20, 1983]) for items and services furnished before that period. ‘‘(c)(1) The Secretary shall cause to be published in the Federal Register a notice of the interim final DRG prospective payment rates established under subsection (d) of section 1886 of the Social Security Act [42 U.S.C. 1395ww(d)] (as amended by this title) no later than Sep- tember 1, 1983, and allow for a period of public comment thereon. Payment on the basis of prospective rates shall become effective on October 1, 1983, without the necessity for consideration of comments received, but the Secretary shall, by notice published in the Federal Register, affirm or modify the amounts by December 31, 1983, after considering those comments. ‘‘(2) A modification under paragraph (1) that reduces a prospective payment rate shall apply only to dis- charges occurring after 30 days after the date the no- tice of the modification is published in the Federal Register. ‘‘(3) Rules to implement the amendments made by this title [amending this section and sections 1320a–1, 1320c–2, 1395f, 1395i–2, 1395n, 1395r, 1395v, 1395w, 1395x, 1395y, 1395cc, 1395mm, 1395oo, 1395rr, and 1395xx of this title, enacting provisions set out as notes under sec- tions 1395r and 1395x of this title, and amending provi- sions set out as a note under section 1395x of this title] shall be established in accordance with the procedure described in this subsection.’’ Amendment by Pub. L. 97–448 effective as if originally included as a part of this section as this section was added by the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, see section 309(c)(2) of Pub. L. 97–448, set out as a note under section 426–1 of this title. EFFECTIVE DATE Pub. L. 97–248, title I, § 101(b)(1), Sept. 3, 1982, 96 Stat. 335, provided that: ‘‘The amendments made by sub- section (a) [enacting this section and amending section 1395x of this title] shall apply to cost reporting periods beginning on or after October 1, 1982.’’ Page 3905 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww REGULATIONS Pub. L. 101–508, title IV, § 4003(c), Nov. 5, 1990, 104 Stat. 1388–39, provided that: ‘‘The Secretary of Health and Human Services shall issue such regulations (on an interim or other basis) as may be necessary to imple- ment this section [amending this section and enacting provisions set out as a note above].’’ Pub. L. 98–369, div. B, title III, § 2315(f)(2), July 18, 1984, 98 Stat. 1080, provided that: ‘‘Notwithstanding sec- tion 604(c) of the Social Security Amendments of 1983 [section 604(c) of Pub. L. 98–21, set out above], the Sec- retary of Health and Human Services shall cause to be published in the Federal Register proposed regulations to carry out subsection (c) of section 1886 of the Social Security Act [42 U.S.C. 1395ww(c)] not later than July 1, 1984, and allow for a period of 45 days for public com- ment thereon. After consideration of the comments re- ceived, the Secretary shall cause to be published in the Federal Register final regulations to carry out such subsection not later than October 1, 1984.’’ Pub. L. 97–248, title I, § 101(b)(2)(A), Sept. 3, 1982, 96 Stat. 335, provided that: ‘‘The Secretary of Health and Human Services shall first issue such final regulations (whether on an interim or other basis) before October 1, 1982, as may be necessary to implement such amend- ments [amendments by section 101(a) of Pub. L. 97–248, enacting this section and amending section 1395x of this title] on a timely basis. If such regulations are pro- mulgated on an interim final basis, the Secretary shall take such steps as may be necessary to provide oppor- tunity for public comment, and appropriate revision based thereon, so as to provide that such regulations are not on an interim basis later than March 31, 1983.’’ CONSTRUCTION OF 2010 AMENDMENT Pub. L. 111–192, title I, § 102(e), June 25, 2010, 124 Stat. 1282, provided that: ‘‘Nothing in the amendments made by this section [amending this section] shall be con- strued as changing the policy described in section 1886(a)(4) of the Social Security Act (42 U.S.C. 1395ww(a)(4)), as applied by the Secretary of Health and Human Services before the date of the enactment of this Act [June 25, 2010], with respect to diagnostic serv- ices.’’ Pub. L. 111–148, title V, § 5504(c), Mar. 23, 2010, 124 Stat. 660, provided that: ‘‘The amendments made by this section [amending this section] shall not be ap- plied in a manner that requires reopening of any set- tled hospital cost reports as to which there is not a ju- risdictionally proper appeal pending as of the date of the enactment of this Act [Mar. 23, 2010] on the issue of payment for indirect costs of medical education under section 1886(d)(5)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) or for direct graduate medical education costs under section 1886(h) of such Act (42 U.S.C. 1395ww(h)).’’ Pub. L. 111–148, title V, § 5505(d), title X, § 10501(j), Mar. 23, 2010, 124 Stat. 999, provided that: ‘‘The amend- ments made by this section [amending this section] shall not be applied in a manner that requires reopen- ing of any settled cost reports as to which there is not a jurisdictionally proper appeal pending as of the date of the enactment of this Act [Mar. 23, 2010] on the issue of payment for indirect costs of medical education under section 1886(d)(5)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) or for direct graduate med- ical education costs under section 1886(h) of such Act (42 U.S.C. 1395ww(h)).’’ Pub. L. 111–148, title V, § 5506(c), Mar. 23, 2010, 124 Stat. 662, provided that: ‘‘The amendments made by this section [amending this section] shall not be ap- plied in a manner that requires reopening of any set- tled hospital cost reports as to which there is not a ju- risdictionally proper appeal pending as of the date of the enactment of this Act [Mar. 23, 2010] on the issue of payment for indirect costs of medical education under section 1886(d)(5)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) or for direct graduate medical education costs under section 1886(h) of such Act (42 U.S.C. Section [sic] 1395ww(h)).’’ TRANSFER OF FUNCTIONS Prospective Payment Assessment Commission (ProPAC) was terminated and its assets and staff trans- ferred to the Medicare Payment Advisory Commission (MedPAC) by section 4022(c)(2), (3) of Pub. L. 105–33, set out as a note under section 1395b–6 of this title. Section 4022(c)(2), (3) further provided that MedPAC was to be responsible for preparation and submission of reports required by law to be submitted by ProPAC, and that, for that purpose, any reference in law to ProPAC was to be deemed, after the appointment of MedPAC, to refer to MedPAC. IMPLEMENTATION OF AMENDMENT BY PUB. L. 118–158 Pub. L. 118–158, div. C, title II, § 3201(b), Dec. 21, 2024, 138 Stat. 1764, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the amendments made by this section [amending this section] by program in- struction or otherwise.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 118–42 Pub. L. 118–42, div. G, title I, § 306(b), Mar. 9, 2024, 138 Stat. 417, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the provisions of, including the amendments made by, this section [amending this section] by program instruction or otherwise.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 117–328 Pub. L. 117–328, div. FF, title IV, § 4101(b), Dec. 29, 2022, 136 Stat. 5896, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the provisions of, in- cluding the amendments made by, this section [amend- ing this section] by program instruction or otherwise.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 117–229 Pub. L. 117–229, div. C, title I, § 101(b), Dec. 16, 2022, 136 Stat. 2310, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the provisions of, including the amendments made by, this section [amending this section] by program instruction or otherwise.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 117–180 Pub. L. 117–180, div. D, title I, § 101(b), Sept. 30, 2022, 136 Stat. 2134, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the provisions of, in- cluding the amendments made by, this section [amend- ing this section] by program instruction or otherwise.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 116–136 Pub. L. 116–136, div. A, title III, § 3710(b), Mar. 27, 2020, 134 Stat. 422, provided that: ‘‘Notwithstanding any other provision of law, the Secretary [probably means Secretary of Health and Human Services] may imple- ment the amendment made by subsection (a) [amend- ing this section] by program instruction or otherwise.’’ INCREASING ACCESS TO POST-ACUTE CARE DURING EMERGENCY PERIOD Pub. L. 116–136, div. A, title III, § 3711, Mar. 27, 2020, 134 Stat. 422, provided that: ‘‘(a) WAIVER OF IRF 3-HOUR RULE.—With respect to in- patient rehabilitation services furnished by a rehabili- tation facility described in section 1886(j)(1) of the So- cial Security Act (42 U.S.C. 1395ww(j)(1)) during the emergency period described in section 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 1320b–5(g)(1)(B)), the Secretary of Health and Human Services shall waive section 412.622(a)(3)(ii) of title 42, Code of Federal Regu- lations (or any successor regulations), relating to the requirement that patients of an inpatient rehabilita- tion facility receive at least 15 hours of therapy per week. ‘‘(b) WAIVER OF SITE-NEUTRAL PAYMENT RATE PROVI- SIONS FOR LONG-TERM CARE HOSPITALS.—With respect Page 3906 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww to inpatient hospital services furnished by a long-term care hospital described in section 1886(d)(1)(B)(iv) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv)) dur- ing the emergency period described in section 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 1320b–5(g)(1)(B)), the Secretary of Health and Human Services shall waive the following provisions of section 1886(m)(6) of such Act (42 U.S.C. 1395ww(m)(6)): ‘‘(1) LTCH 50-PERCENT RULE.—Subparagraph (C)(ii) of such section, relating to the payment adjustment for long-term care hospitals that do not have a dis- charge payment percentage for the period that is at least 50 percent. ‘‘(2) SITE-NEUTRAL IPPS PAYMENT RATE.—Subpara- graph (A)(i) of such section, relating to the applica- tion of the site-neutral payment rate (and payment shall be made to a long-term care hospital without regard to such section) for a discharge if the admis- sion occurs during such emergency period and is in response to the public health emergency described in such section 1135(g)(1)(B).’’ APPLICATION OF CHANGE IN MEDICARE CLASSIFICATION FOR CERTAIN HOSPITALS Pub. L. 114–255, div. C, title XV, § 15008(c), Dec. 13, 2016, 130 Stat. 1321, provided that: ‘‘(1) IN GENERAL.—For cost reporting periods begin- ning on or after January 1, 2015, in the case of an appli- cable hospital (as defined in paragraph (3) [sic, probably should be ‘‘paragraph (2)’’]), the following shall apply: ‘‘(A) Payment for inpatient operating costs shall be made on a reasonable cost basis in the manner pro- vided in section 412.526(c)(3) of title 42, Code of Fed- eral Regulations (as in effect on January 1, 2015) and in any subsequent modifications. ‘‘(B) Payment for capital costs shall be made in the manner provided by section 412.526(c)(4) of title 42, Code of Federal Regulations (as in effect on such date). ‘‘(C) Claims for payment for Medicare beneficiaries who are discharged on or after January 1, 2017, shall be processed as claims which are paid on a reasonable cost basis as described in section 412.526(c) of title 42, Code of Federal Regulations (as in effect on such date). ‘‘(2) APPLICABLE HOSPITAL DEFINED.—In this sub- section, the term ‘applicable hospital’ means a hospital that is classified under clause (iv)(II) of section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) on the day before the date of the enact- ment of this Act [Dec. 13, 2016] and which is classified under clause (vi) of such section, as redesignated and moved by subsection (a), on or after such date of enact- ment.’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 114–113 Pub. L. 114–113, div. O, title VI, § 602(c), Dec. 18, 2015, 129 Stat. 3024, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the amendments made by this section [amending this section and section 1395w–23 of this title] by program instruction or other- wise.’’ CALCULATION OF LENGTH OF STAY EXCLUDING CASES PAID ON A SITE NEUTRAL BASIS Pub. L. 113–67, div. B, title II, § 1206(a)(3), Dec. 26, 2013, 127 Stat. 1203, as amended by Pub. L. 113–93, title I, § 112(c)(2), Apr. 1, 2014, 128 Stat. 1045; Pub. L. 114–255, div. C, title XV, § 15007(a), Dec. 13, 2016, 130 Stat. 1320, provided that: ‘‘For discharges occurring in cost report- ing periods beginning on or after October 1, 2015, in cal- culating the length of stay requirement applicable to a long-term care hospital or satellite facility under sec- tion 1886(d)(1)(B)(iv)(I) [now 1886(d)(1)(B)(iv)] of the So- cial Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv)(I) [1395ww(d)(1)(B)(iv)]) and section 1861(ccc)(2) of such Act (42 U.S.C. 1395x(ccc)(2)), the Secretary of Health and Human Services shall exclude the following: ‘‘(A) SITE NEUTRAL PAYMENT.—Any patient for whom payment is made at the site neutral payment rate (as defined in section 1886(m)(6)(B)(ii) [42 U.S.C. 1395ww(m)(6)(B)(ii)) of such Act, as added by para- graph (1)). ‘‘(B) MEDICARE ADVANTAGE.—Any patient for whom payment is made under a Medicare Advantage plan under part C of title XVIII of such Act [42 U.S.C. 1395w–21 et seq.].’’ [Pub. L. 114–255, div. C, title XV, § 15007(b), Dec. 13, 2016, 130 Stat. 1320, provided that: ‘‘The amendments made by subsection (a) [amending section 1206(a)(3) of Pub. L. 113–67, set out above] shall be effective as if in- cluded in the enactment of section 1206(a)(3) of the Pathway for SGR Reform Act of 2013 (division B of Pub- lic Law 113–67; 42 U.S.C. 1395ww note).’’] REVIEW OF TREATMENT OF CERTAIN LTCHS Pub. L. 113–67, div. B, title II, § 1206(d), Dec. 26, 2013, 127 Stat. 1204, provided that: ‘‘(1) EVALUATION.—As part of the annual rulemaking for fiscal year 2015 or fiscal year 2016 to carry out the payment rates under subsection (d) of section 1886 of the Social Security Act (42 U.S.C. 1395ww), the Sec- retary shall evaluate both the payment rates and regu- lations governing hospitals which are classified under subclause (II) of subsection (d)(1)(B)(iv) of such section. ‘‘(2) ADJUSTMENT AUTHORITY.—Based upon such eval- uation, the Secretary may adjust payment rates under subsection (b)(3) of section 1886 of the Social Security Act (42 U.S.C. 1395ww) for a hospital so classified (such as payment based upon the TEFRA-payment model) and may adjust the regulations governing such hos- pitals, including applying the regulations governing hospitals which are classified under clause (I) of sub- section (d)(1)(B) of such section.’’ SPECIAL RULE FOR FISCAL YEAR 2011 AND ADJUSTMENT FOR CERTAIN HOSPITALS IN FISCAL YEAR 2011 Pub. L. 111–309, title I, § 102(a)(2), (3), Dec. 15, 2010, 124 Stat. 3286, provided that: ‘‘(2) SPECIAL RULE FOR FISCAL YEAR 2011.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B), for purposes of implementation of the amendment made by paragraph (1) [amending section 106(a) of div. B of Pub. L. 109–432, set out as a note under this section], including (notwithstanding paragraph (3) of section 117(a) of the Medicare, Medicaid, and SCHIP Exten- sion Act of 2007 (Public Law 110–173) [set out as a note under this section], as amended by section 124(b) of the Medicare Improvements for Patients and Pro- viders Act of 2008 (Public Law 110–275)) for purposes of the implementation of paragraph (2) of such section 117(a), during fiscal year 2011, the Secretary of Health and Human Services shall use the hospital wage index that was promulgated by the Secretary of Health and Human Services in the Federal Register on August 16, 2010 (75 Fed. Reg. 50042), and any subsequent correc- tions. ‘‘(B) EXCEPTION.—Beginning on April 1, 2011, in de- termining the wage index applicable to hospitals that qualify for wage index reclassification, the Secretary shall include the average hourly wage data of hos- pitals whose reclassification was extended pursuant to the amendment made by paragraph (1) only if in- cluding such data results in a higher applicable re- classified wage index. Any revision to hospital wage indexes made as a result of this subparagraph shall not be effected in a budget neutral manner. ‘‘(3) ADJUSTMENT FOR CERTAIN HOSPITALS IN FISCAL YEAR 2011.— ‘‘(A) IN GENERAL.—In the case of a subsection (d) hospital (as defined in subsection (d)(1)(B) of section 1886 of the Social Security Act (42 U.S.C. 1395ww)) with respect to which— ‘‘(i) a reclassification of its wage index for pur- poses of such section was extended pursuant to the amendment made by paragraph (1); and ‘‘(ii) the wage index applicable for such hospital for the period beginning on October 1, 2010, and end- Page 3907 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ing on March 31, 2011, was lower than for the period beginning on April 1, 2011, and ending on September 30, 2011, by reason of the application of paragraph (2)(B); ‘‘the Secretary shall pay such hospital an additional payment that reflects the difference between the wage index for such periods. ‘‘(B) TIMEFRAME FOR PAYMENTS.—The Secretary shall make payments required under subparagraph (A) by not later than December 31, 2011.’’ Similar provisions were contained in Pub. L. 111–148, title III, § 3137(a)(2), (3), title X, § 10317, Mar. 23, 2010, 124 Stat. 438, 947. NO REOPENING OF PREVIOUSLY BUNDLED CLAIMS Pub. L. 111–192, title I, § 102(c), June 25, 2010, 124 Stat. 1281, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services may not reopen a claim, adjust a claim, or make a payment pursuant to any request for payment under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.], submitted by an entity (includ- ing a hospital or an entity wholly owned or operated by the hospital) for services described in paragraph (2) for purposes of treating, as unrelated to a patient’s inpa- tient admission, services provided during the 3 days (or, in the case of a hospital that is not a subsection (d) hospital, during the 1 day) immediately preceding the date of the patient’s inpatient admission. ‘‘(2) SERVICES DESCRIBED.—For purposes of paragraph (1), the services described in this paragraph are other services related to the admission (as described in sec- tion 1886(a)(4) of the Social Security Act (42 U.S.C. 1395ww(a)(4)), as amended by subsection (a)) which were previously included on a claim or request for payment submitted under part A of title XVIII of such Act [42 U.S.C. 1395c et seq.] for which a reopening, adjustment, or request for payment under part B of such title [42 U.S.C. 1395j et seq.], was not submitted prior to the date of the enactment of this Act [June 25, 2010].’’ IMPLEMENTATION OF AMENDMENT BY PUB. L. 111–192 Pub. L. 111–192, title I, § 102(d), June 25, 2010, 124 Stat. 1281, provided that: ‘‘Notwithstanding any other provi- sion of law, the Secretary of Health and Human Serv- ices may implement the provisions of this section [amending this section and enacting provisions set out as notes under this section] (and amendments made by this section) by program instruction or otherwise.’’ PAYMENT FOR QUALIFYING HOSPITALS Pub. L. 111–152, title I, § 1109, Mar. 30, 2010, 124 Stat. 1051, provided that: ‘‘(a) IN GENERAL.—From the amount available under subsection (b), the Secretary of Health and Human Services shall provide for a payment to qualifying hos- pitals (as defined in subsection (d)) for fiscal years 2011 and 2012 of the amount determined under subsection (c). ‘‘(b) AMOUNTS AVAILABLE.—There shall be available from the Federal Hospital Insurance Trust Fund $400,000,000 for payments under this section for fiscal years 2011 and 2012. ‘‘(c) PAYMENT AMOUNT.—The amount of payment under this section for a qualifying hospital shall be de- termined, in a manner consistent with the amount available under subsection (b), in proportion to the por- tion of the amount of the aggregate payments under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] to the hospital for fiscal year 2009 bears to the sum of all such payments to all qualifying hospitals for such fiscal year. ‘‘(d) QUALIFYING HOSPITAL DEFINED.—In this section, the term ‘qualifying hospital’ means a subsection (d) hospital (as defined for purposes of section 1886(d) of the Social Security Act) that is located in a county that ranks, based upon its ranking in age, sex, and race adjusted spending for benefits under parts A and B under title XVIII of such Act [42 U.S.C. 1395c et seq.; 42 U.S.C. 1395j et seq.] per enrollee, within the lowest quartile of such counties in the United States.’’ VALUE-BASED PURCHASING DEMONSTRATION PROGRAMS Pub. L. 111–148, title III, § 3001(b), Mar. 23, 2010, 124 Stat. 362, provided that: ‘‘(1) VALUE-BASED PURCHASING DEMONSTRATION PRO- GRAM FOR INPATIENT CRITICAL ACCESS HOSPITALS.— ‘‘(A) ESTABLISHMENT.— ‘‘(i) IN GENERAL.—Not later than 2 years after the date of enactment of this Act [Mar. 23, 2010], the Secretary of Health and Human Services (in this subsection referred to as the ‘Secretary’) shall es- tablish a demonstration program under which the Secretary establishes a value-based purchasing pro- gram under the Medicare program under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] for critical access hospitals (as defined in paragraph (1) of section 1861(mm) of such Act (42 U.S.C. 1395x(mm))) with respect to inpatient critical ac- cess hospital services (as defined in paragraph (2) of such section) in order to test innovative methods of measuring and rewarding quality and efficient health care furnished by such hospitals. ‘‘(ii) DURATION.—The demonstration program under this paragraph shall be conducted for a 3-year period. ‘‘(iii) SITES.—The Secretary shall conduct the demonstration program under this paragraph at an appropriate number (as determined by the Sec- retary) of critical access hospitals. The Secretary shall ensure that such hospitals are representative of the spectrum of such hospitals that participate in the Medicare program. ‘‘(B) WAIVER AUTHORITY.—The Secretary may waive such requirements of titles XI and XVIII of the Social Security Act [42 U.S.C. 1301 et seq., 1395 et seq.] as may be necessary to carry out the demonstration program under this paragraph. ‘‘(C) BUDGET NEUTRALITY REQUIREMENT.—In con- ducting the demonstration program under this sec- tion [amending this section and enacting this note], the Secretary shall ensure that the aggregate pay- ments made by the Secretary do not exceed the amount which the Secretary would have paid if the demonstration program under this section was not implemented. ‘‘(D) REPORT.—Not later than 18 months after the completion of the demonstration program under this paragraph, the Secretary shall submit to Congress a report on the demonstration program together with— ‘‘(i) recommendations on the establishment of a permanent value-based purchasing program under the Medicare program for critical access hospitals with respect to inpatient critical access hospital services; and ‘‘(ii) recommendations for such other legislation and administrative action as the Secretary deter- mines appropriate. ‘‘(2) VALUE-BASED PURCHASING DEMONSTRATION PRO- GRAM FOR HOSPITALS EXCLUDED FROM HOSPITAL VALUE- BASED PURCHASING PROGRAM AS A RESULT OF INSUFFI- CIENT NUMBERS OF MEASURES AND CASES.— ‘‘(A) ESTABLISHMENT.— ‘‘(i) IN GENERAL.—Not later than 2 years after the date of enactment of this Act [Mar. 23, 2010], the Secretary shall establish a demonstration program under which the Secretary establishes a value- based purchasing program under the Medicare pro- gram under title XVIII of the Social Security Act for applicable hospitals (as defined in clause (ii)) with respect to inpatient hospital services (as de- fined in section 1861(b) of the Social Security Act (42 U.S.C. 1395x(b))) in order to test innovative methods of measuring and rewarding quality and efficient health care furnished by such hospitals. ‘‘(ii) APPLICABLE HOSPITAL DEFINED.—For purposes of this paragraph, the term ‘applicable hospital’ means a hospital described in subclause (III) or (IV) of section 1886(o)(1)(C)(ii) of the Social Security Act Page 3908 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww [42 U.S.C. 1395ww(o)(1)(C)(ii)], as added by sub- section (a)(1). ‘‘(iii) DURATION.—The demonstration program under this paragraph shall be conducted for a 3-year period. ‘‘(iv) SITES.—The Secretary shall conduct the demonstration program under this paragraph at an appropriate number (as determined by the Sec- retary) of applicable hospitals. The Secretary shall ensure that such hospitals are representative of the spectrum of such hospitals that participate in the Medicare program. ‘‘(B) WAIVER AUTHORITY.—The Secretary may waive such requirements of titles XI and XVIII of the Social Security Act [42 U.S.C. 1301 et seq., 1395 et seq.] as may be necessary to carry out the demonstration program under this paragraph. ‘‘(C) BUDGET NEUTRALITY REQUIREMENT.—In con- ducting the demonstration program under this sec- tion, the Secretary shall ensure that the aggregate payments made by the Secretary do not exceed the amount which the Secretary would have paid if the demonstration program under this section was not implemented. ‘‘(D) REPORT.—Not later than 18 months after the completion of the demonstration program under this paragraph, the Secretary shall submit to Congress a report on the demonstration program together with— ‘‘(i) recommendations on the establishment of a permanent value-based purchasing program under the Medicare program for applicable hospitals with respect to inpatient hospital services; and ‘‘(ii) recommendations for such other legislation and administrative action as the Secretary deter- mines appropriate.’’ REFORMING THE MEDICARE HOSPITAL WAGE INDEX SYSTEM Pub. L. 111–148, title III, § 3137(b), (c), Mar. 23, 2010, 124 Stat. 438, 439, provided that: ‘‘(b) PLAN FOR REFORMING THE MEDICARE HOSPITAL WAGE INDEX SYSTEM ‘‘(1) IN GENERAL.—Not later than December 31, 2011, the Secretary of Health and Human Services (in this section referred to as the ‘Secretary’) shall submit to Congress a report that includes a plan to reform the hospital wage index system under section 1886 of the Social Security Act [42 U.S.C. 1395ww]. ‘‘(2) DETAILS.—In developing the plan under para- graph (1), the Secretary shall take into account the goals for reforming such system set forth in the Medicare Payment Advisory Commission June 2007 report entitled ‘Report to Congress: Promoting Greater Efficiency in Medicare’, including estab- lishing a new hospital compensation index system that— ‘‘(A) uses Bureau of Labor Statistics data, or other data or methodologies, to calculate relative wages for each geographic area involved; ‘‘(B) minimizes wage index adjustments between and within metropolitan statistical areas and state- wide rural areas; ‘‘(C) includes methods to minimize the volatility of wage index adjustments that result from imple- mentation of policy, while maintaining budget neu- trality in applying such adjustments; ‘‘(D) takes into account the effect that implemen- tation of the system would have on health care pro- viders and on each region of the country; ‘‘(E) addresses issues related to occupational mix, such as staffing practices and ratios, and any evi- dence on the effect on quality of care or patient safety as a result of the implementation of the sys- tem; and ‘‘(F) provides for a transition. ‘‘(3) CONSULTATION.—In developing the plan under paragraph (1), the Secretary shall consult with rel- evant affected parties. ‘‘(c) USE OF PARTICULAR CRITERIA FOR DETERMINING RECLASSIFICATIONS.—Notwithstanding any other provi- sion of law, in making decisions on applications for re- classification of a subsection (d) hospital (as defined in paragraph (1)(B) of section 1886(d) of the Social Secu- rity Act (42 U.S.C. 1395ww(d))[)] for the purposes de- scribed in paragraph (10)(D)(v) of such section for fiscal year 2011 and each subsequent fiscal year (until the first fiscal year beginning on or after the date that is 1 year after the Secretary of Health and Human Serv- ices submits the report to Congress under subsection (b)), the Geographic Classification Review Board estab- lished under paragraph (10) of such section shall use the average hourly wage comparison criteria used in mak- ing such decisions as of September 30, 2008. The pre- ceding sentence shall be effected in a budget neutral manner.’’ APPLICATION OF BUDGET NEUTRALITY ON A NATIONAL BASIS IN THE CALCULATION OF THE MEDICARE HOS- PITAL WAGE INDEX FLOOR Pub. L. 111–148, title III, § 3141, Mar. 23, 2010, 124 Stat. 441, provided that: ‘‘In the case of discharges occurring on or after October 1, 2010, for purposes of applying sec- tion 4410 of the Balanced Budget Act of 1997 [section 4410 of Pub. L. 105–33, set out as a note under this sec- tion] (42 U.S.C. 1395ww note) and paragraph (h)(4) of section 412.64 of title 42, Code of Federal Regulations, the Secretary of Health and Human Services shall ad- minister subsection (b) of such section 4410 and para- graph (e) of such section 412.64 in the same manner as the Secretary administered such subsection (b) and paragraph (e) for discharges occurring during fiscal year 2008 (through a uniform, national adjustment to the area wage index).’’ EFFECT ON TEMPORARY FTE CAP ADJUSTMENTS Pub. L. 111–148, title V, § 5506(d), Mar. 23, 2010, 124 Stat. 662, provided that: ‘‘The Secretary of Health and Human Services shall give consideration to the effect of the amendments made by this section [amending this section] on any temporary adjustment to a hos- pital’s FTE cap under section 413.79(h) of title 42, Code of Federal Regulations (as in effect on the date of en- actment of this Act [Mar. 23, 2010]) in order to ensure that there is no duplication of FTE slots. Such amend- ments shall not affect the application of section 1886(h)(4)(H)(v) of the Social Security Act (42 U.S.C. 1395ww(h)(4)(H)(v)).’’ GRADUATE NURSE EDUCATION DEMONSTRATION Pub. L. 111–148, title V, § 5509, Mar. 23, 2010, 124 Stat. 674, provided that: ‘‘(a) IN GENERAL.— ‘‘(1) ESTABLISHMENT.— ‘‘(A) IN GENERAL.—The Secretary shall establish a graduate nurse education demonstration under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) under which an eligible hospital may receive payment for the hospital’s reasonable costs (de- scribed in paragraph (2)) for the provision of quali- fied clinical training to advance practice nurses. ‘‘(B) NUMBER.—The demonstration shall include up to 5 eligible hospitals. ‘‘(C) WRITTEN AGREEMENTS.—Eligible hospitals se- lected to participate in the demonstration shall enter into written agreements pursuant to sub- section (b) in order to reimburse the eligible part- ners of the hospital the share of the costs attrib- utable to each partner. ‘‘(2) COSTS DESCRIBED.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B) and subsection (d), the costs described in this para- graph are the reasonable costs (as described in sec- tion 1861(v) of the Social Security Act (42 U.S.C. 1395x(v))) of each eligible hospital for the clinical training costs (as determined by the Secretary) that are attributable to providing advanced prac- tice registered nurses with qualified training. ‘‘(B) LIMITATION.—With respect to a year, the amount reimbursed under subparagraph (A) may Page 3909 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww not exceed the amount of costs described in sub- paragraph (A) that are attributable to an increase in the number of advanced practice registered nurses enrolled in a program that provides qualified training during the year and for which the hospital is being reimbursed under the demonstration, as compared to the average number of advanced prac- tice registered nurses who graduated in each year during the period beginning on January 1, 2006, and ending on December 31, 2010 (as determined by the Secretary) from the graduate nursing education program operated by the applicable school of nurs- ing that is an eligible partner of the hospital for purposes of the demonstration. ‘‘(3) WAIVER AUTHORITY.—The Secretary may waive such requirements of titles XI and XVIII of the Social Security Act [42 U.S.C. 1301 et seq., 1395 et seq.] as may be necessary to carry out the demonstration. ‘‘(4) ADMINISTRATION.—Chapter 35 of title 44, United States Code, shall not apply to the implementation of this section. ‘‘(b) WRITTEN AGREEMENTS WITH ELIGIBLE PART- NERS.—No payment shall be made under this section to an eligible hospital unless such hospital has in effect a written agreement with the eligible partners of the hospital. Such written agreement shall describe, at a minimum— ‘‘(1) the obligations of the eligible partners with re- spect to the provision of qualified training; and ‘‘(2) the obligation of the eligible hospital to reim- burse such eligible partners applicable (in a timely manner) for the costs of such qualified training at- tributable to partner. ‘‘(c) EVALUATION.—Not later than October 17, 2017, the Secretary shall submit to Congress a report on the demonstration. Such report shall include an analysis of the following: ‘‘(1) The growth in the number of advanced practice registered nurses with respect to a specific base year as a result of the demonstration. ‘‘(2) The growth for each of the specialties described in subparagraphs (A) through (D) of subsection (e)(1). ‘‘(3) The costs to the Medicare program under title XVIII of the Social Security Act as a result of the demonstration. ‘‘(4) Other items the Secretary determines appro- priate and relevant. ‘‘(d) FUNDING.— ‘‘(1) IN GENERAL.—There is hereby appropriated to the Secretary, out of any funds in the Treasury not otherwise appropriated, $50,000,000 for each of fiscal years 2012 through 2015 to carry out this section, in- cluding the design, implementation, monitoring, and evaluation of the demonstration. ‘‘(2) PRORATION.—If the aggregate payments to eli- gible hospitals under the demonstration exceed $50,000,000 for a fiscal year described in paragraph (1), the Secretary shall prorate the payment amounts to each eligible hospital in order to ensure that the ag- gregate payments do not exceed such amount. ‘‘(3) WITHOUT FISCAL YEAR LIMITATION.—Amounts appropriated under this subsection shall remain available without fiscal year limitation. ‘‘(e) DEFINITIONS.—In this section: ‘‘(1) ADVANCED PRACTICE REGISTERED NURSE.—The term ‘advanced practice registered nurse’ includes the following: ‘‘(A) A clinical nurse specialist (as defined in sub- section (aa)(5) of section 1861 of the Social Security Act (42 U.S.C. 1395x)). ‘‘(B) A nurse practitioner (as defined in such sub- section). ‘‘(C) A certified registered nurse anesthetist (as defined in subsection (bb)(2) of such section). ‘‘(D) A certified nurse-midwife (as defined in sub- section (gg)(2) of such section). ‘‘(2) APPLICABLE NON-HOSPITAL COMMUNITY-BASED CARE SETTING.—The term ‘applicable non-hospital community-based care setting’ means a non-hospital community-based care setting which has entered into a written agreement (as described in subsection (b)) with the eligible hospital participating in the dem- onstration. Such settings include Federally qualified health centers, rural health clinics, and other non- hospital settings as determined appropriate by the Secretary. ‘‘(3) APPLICABLE SCHOOL OF NURSING.—The term ‘ap- plicable school of nursing’ means an accredited school of nursing (as defined in section 801 of the Pub- lic Health Service Act [42 U.S.C. 296]) which has en- tered into a written agreement (as described in sub- section (b)) with the eligible hospital participating in the demonstration. ‘‘(4) DEMONSTRATION.—The term ‘demonstration’ means the graduate nurse education demonstration established under subsection (a). ‘‘(5) ELIGIBLE HOSPITAL.—The term ‘eligible hos- pital’ means a hospital (as defined in subsection (e) of section 1861 of the Social Security Act (42 U.S.C. 1395x)) or a critical access hospital (as defined in sub- section (mm)(1) of such section) that has a written agreement in place with— ‘‘(A) 1 or more applicable schools of nursing; and ‘‘(B) 2 or more applicable non-hospital commu- nity-based care settings. ‘‘(6) ELIGIBLE PARTNERS.—The term ‘eligible part- ners’ includes the following: ‘‘(A) An applicable non-hospital community-based care setting. ‘‘(B) An applicable school of nursing. ‘‘(7) QUALIFIED TRAINING.— ‘‘(A) IN GENERAL.—The term ‘qualified training’ means training— ‘‘(i) that provides an advanced practice reg- istered nurse with the clinical skills necessary to provide primary care, preventive care, transi- tional care, chronic care management, and other services appropriate for individuals entitled to, or enrolled for, benefits under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.], or enrolled under part B of such title [42 U.S.C. 1395j et seq.]; and ‘‘(ii) subject to subparagraph (B), at least half of which is provided in a non-hospital commu- nity-based care setting. ‘‘(B) WAIVER OF REQUIREMENT HALF OF TRAINING BE PROVIDED IN NON-HOSPITAL COMMUNITY-BASED CARE SETTING IN CERTAIN AREAS.—The Secretary may waive the requirement under subparagraph (A)(ii) with respect to eligible hospitals located in rural or medically underserved areas. ‘‘(8) SECRETARY.—The term ‘Secretary’ means the Secretary of Health and Human Services.’’ PAYMENT FOR LONG-TERM CARE HOSPITAL SERVICES Pub. L. 110–173, title I, § 114(c), Dec. 29, 2007, 121 Stat. 2502, as amended by Pub. L. 111–5, div. B, title IV, § 4302(a), Feb. 17, 2009, 123 Stat. 495; Pub. L. 111–148, title III, § 3106(a), title X, § 10312(a), Mar. 23, 2010, 124 Stat. 418, 943; Pub. L. 113–67, div. B, title II, § 1206(b)(1)(A), (B), Dec. 26, 2013, 127 Stat. 1203; Pub. L. 114–255, div. C, title XV, § 15006, Dec. 13, 2016, 130 Stat. 1320, provided that: ‘‘(1) DELAY IN APPLICATION OF 25 PERCENT PATIENT THRESHOLD PAYMENT ADJUSTMENT.—The Secretary [of Health and Human Services] shall not apply, for cost reporting periods beginning on or after July 1, 2007,— [sic] ‘‘(A) through June 30, 2016, and for discharges oc- curring on or after October 1, 2016, and before October 1, 2017, section 412.536 of title 42, Code of Federal Reg- ulations, or any similar provision, to freestanding long-term care hospitals or to a long-term care hos- pital, 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) hos- pital which did not provide services payable under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] at the off-campus location; and ‘‘(B) such section or section 412.534 of title 42, Code of Federal Regulations, or any similar provisions, to Page 3910 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww a long-term care hospital identified by the amend- ment made by section 4417(a) of the Balanced Budget Act of 1997 (Public Law 105–33) [amending this section and enacting provisions set out as a note under this section]. ‘‘(2) PAYMENT FOR HOSPITALS-WITHIN-HOSPITALS.— ‘‘(A) IN GENERAL.—Payment to an applicable long- term care hospital or satellite facility which is lo- cated in a rural area or which is co-located with an urban single or MSA dominant hospital under para- graphs (d)(1), (e)(1), and (e)(4) of section 412.534 of title 42, Code of Federal Regulations, or any similar provi- sion, shall not be subject to any payment adjustment under such section if no more than 75 percent of the hospital’s Medicare discharges (other than discharges described in paragraph (d)(2) or (e)(3) of such section) are admitted from a co-located hospital. ‘‘(B) CO-LOCATED LONG-TERM CARE HOSPITALS AND SATELLITE FACILITIES.— ‘‘(i) IN GENERAL.—Payment to an applicable long- term care hospital or satellite facility which is co- located with another hospital shall not be subject to any payment adjustment under section 412.534 of title 42, Code of Federal Regulations, or any similar provision, if no more than 50 percent of the hos- pital’s Medicare discharges (other than discharges described in paragraph (c)(3) of such section) are ad- mitted from a co-located hospital. ‘‘(ii) APPLICABLE LONG-TERM CARE HOSPITAL OR SATELLITE FACILITY DEFINED.—In this paragraph, the term ‘applicable long-term care hospital or sat- ellite facility’ means a hospital or satellite facility that is subject to the transition rules under section 412.534(g) of title 42, Code of Federal Regulations, or any similar provision, or that is described in sec- tion 412.22(h)(3)(i) of such title. ‘‘(C) EFFECTIVE DATE.—Subparagraphs (A) and (B) shall apply to cost reporting periods beginning on or after October 1, 2007 (or July 1, 2007, in the case of a satellite facility described in section 412.22(h)(3)(i) of title 42, Code of Federal Regulations) through June 30, 2016, and for discharges occurring on or after Octo- ber 1, 2016, and before October 1, 2017. ‘‘(3) NO APPLICATION OF VERY SHORT-STAY OUTLIER POL- ICY.—The Secretary shall not apply, for the 5-year pe- riod beginning on the date of the enactment of this Act, the amendments finalized on May 11, 2007 (72 Fed- eral Register 26904, 26992) made to the short-stay outlier payment provision for long-term care hospitals contained in section 412.529(c)(3)(i) of title 42, Code of Federal Regulations, or any similar provision. ‘‘(4) NO APPLICATION OF ONE-TIME ADJUSTMENT TO STANDARD AMOUNT.—The Secretary shall not, for the 5- year period beginning on the date of the enactment of this Act, make the one-time prospective adjustment to long-term care hospital prospective payment rates pro- vided for in section 412.523(d)(3) of title 42, Code of Fed- eral Regulations, or any similar provision.’’ [Pub. L. 111–5, div. B, title IV, § 4302(c), Feb. 17, 2009, 123 Stat. 496, provided that: ‘‘The amendments made by this section [amending Pub. L. 110–173, § 114(c), set out above, and Pub. L. 110–173, § 114(d), set out below] shall be effective and apply as if included in the enactment of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public Law 110–173).’’] MORATORIUM ON THE ESTABLISHMENT OF LONG-TERM CARE HOSPITALS, LONG-TERM CARE SATELLITE FA- CILITIES AND ON THE INCREASE OF LONG-TERM CARE HOSPITAL BEDS IN EXISTING LONG-TERM CARE HOS- PITALS OR SATELLITE FACILITIES Pub. L. 110–173, title I, § 114(d), Dec. 29, 2007, 121 Stat. 2503, as amended by Pub. L. 111–5, div. B, title IV, § 4302(b), Feb. 17, 2009, 123 Stat. 496; Pub. L. 111–148, title III, § 3106(b), title X, § 10312(b), Mar. 23, 2010, 124 Stat. 418, 943; Pub. L. 113–67, div. B, title II, § 1206(b)(2), Dec. 26, 2013, 127 Stat. 1204; Pub. L. 113–93, title I, § 112(b), Apr. 1, 2014, 128 Stat. 1044; Pub. L. 114–255, div. C, title XV, § 15004(a)(1), Dec. 13, 2016, 130 Stat. 1319, provided that: ‘‘(1) IN GENERAL.—During the 5-year period (and for the period beginning on the date of the enactment of paragraph (7) of this subsection [Apr. 1, 2014] and end- ing September 30, 2017) beginning on the date of the en- actment of this Act [Dec. 29, 2007], the Secretary [of Health and Human Services] shall impose a morato- rium for purposes of the Medicare program under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]— ‘‘(A) subject to paragraph (2), on the establishment and classification of a long-term care hospital or sat- ellite facility, other than an existing long-term care hospital or facility; and ‘‘(B) subject to paragraph (3), on an increase of long-term care hospital beds in existing long-term care hospitals or satellite facilities. ‘‘(2) EXCEPTION FOR CERTAIN LONG-TERM CARE HOS- PITALS.—The moratorium under paragraph (1)(A) shall not apply to a long-term care hospital that as of the date of the enactment of this Act— ‘‘(A) began its qualifying period for payment as a long-term care hospital under section 412.23(e) of title 42, Code of Federal Regulations, on or before the date of the enactment of this Act; ‘‘(B) has a binding written agreement with an out- side, unrelated party for the actual construction, ren- ovation, lease, or demolition for a long-term care hospital, and has expended, before the date of the en- actment of this Act, at least 10 percent of the esti- mated cost of the project (or, if less, $2,500,000); or ‘‘(C) has obtained an approved certificate of need in a State where one is required on or before the date of the enactment of this Act. ‘‘(3) EXCEPTION FOR BED INCREASES DURING MORATO- RIUM.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B), the moratorium under paragraph (1)(B) shall not apply to an increase in beds in an existing hospital or satellite facility if the hospital or facility obtained a certifi- cate of need for an increase in beds that is in a State for which such certificate of need is required and that was issued on or after April 1, 2005, and before Decem- ber 29, 2007, or if the hospital or facility— ‘‘(i) is located in a State where there is only one other long-term care hospital; and ‘‘(ii) requests an increase in beds following the closure or the decrease in the number of beds of an- other long-term care hospital in the State. ‘‘(B) NO EFFECT ON CERTAIN LIMITATION.—The excep- tion under subparagraph (A) shall not effect the limi- tation on increasing beds under sections 412.22(h)(3) and 412.22(f) of title 42, Code of Federal Regulations. ‘‘(4) EXISTING HOSPITAL OR SATELLITE FACILITY DE- FINED.—For purposes of this subsection, the term ‘ex- isting’ means, with respect to a hospital or satellite fa- cility, a hospital or satellite facility that received pay- ment under the provisions of subpart O of part 412 of title 42, Code of Federal Regulations, as of the date of the enactment of this Act. ‘‘(5) JUDICIAL REVIEW.—There shall be no administra- tive or judicial review under section 1869 of the Social Security Act (42 U.S.C. 1395ff), section 1878 of such Act (42 U.S.C. 1395oo), or otherwise, of the application of this subsection by the Secretary. ‘‘(6) LIMITATION ON APPLICATION OF EXCEPTIONS.— Paragraphs (2) and (3) shall not apply during the period beginning on the date of the enactment of paragraph (7) of this subsection [Apr. 1, 2014] and ending September 30, 2017. ‘‘(7) ADDITIONAL EXCEPTION FOR CERTAIN LONG-TERM CARE HOSPITALS.—Any moratorium under paragraph (1) shall not apply to a long-term care hospital that— ‘‘(A) began its qualifying period for payment as a long-term care hospital under section 412.23(e) of title 42, Code of Federal Regulations, on or before the date of enactment of this paragraph [Apr. 1, 2014]; ‘‘(B) has a binding written agreement as of the date of the enactment of this paragraph with an outside, unrelated party for the actual construction, renova- tion, lease, or demolition for a long-term care hos- Page 3911 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww pital, and has expended, before such date of enact- ment, at least 10 percent of the estimated cost of the project (or, if less, $2,500,000); or ‘‘(C) has obtained an approved certificate of need in a State where one is required on or before such date of enactment.’’ [Pub. L. 114–255, div. C, title XV, § 15004(a)(2), Dec. 13, 2016, 130 Stat. 1319, provided that: ‘‘The amendment made by paragraph (1) [amending section 114(d) of Pub. L. 110–173, set out above] shall take effect as if included in the enactment of section 112 of the Protecting Ac- cess to Medicare Act of 2014 [Pub. L. 113–93, amending section 114(d) of Pub. L. 110–173, set out above].’’] [For effective date of amendment by Pub. L. 111–5, see section 4302(c) of Pub. L. 111–5, set out as a note fol- lowing section 114(c) of Pub. L. 110–173, set out above.] EXPANDED REVIEW OF MEDICAL NECESSITY Pub. L. 110–173, title I, § 114(f), Dec. 29, 2007, 121 Stat. 2505, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall provide, under contracts with one or more appropriate fiscal intermediaries or medi- care administrative contractors under section 1874A(a)(4)(G) of the Social Security Act (42 U.S.C. 1395kk–1(a)(4)(G) [now 42 U.S.C. 1395kk–1(a)(4)(H)]), for reviews of the medical necessity of admissions to long- term care hospitals (described in section 1886(d)(1)(B)(iv) of such Act [42 U.S.C. 1395ww(d)(1)(B)(iv)]) and continued stay at such hos- pitals, of individuals entitled to, or enrolled for, bene- fits under part A of title XVIII of such Act [42 U.S.C. 1395c et seq.] consistent with this subsection. Such re- views shall be made for discharges occurring on or after October 1, 2007. ‘‘(2) REVIEW METHODOLOGY.—The medical necessity reviews under paragraph (1) shall be conducted on an annual basis in accordance with rules specified by the Secretary. Such reviews shall— ‘‘(A) provide for a statistically valid and represent- ative sample of admissions of such individuals suffi- cient to provide results at a 95 percent confidence in- terval; and ‘‘(B) guarantee that at least 75 percent of overpay- ments received by long-term care hospitals for medi- cally unnecessary admissions and continued stays of individuals in long-term care hospitals will be identi- fied and recovered and that related days of care will not be counted toward the length of stay requirement contained in section 1886(d)(1)(B)(iv) of the Social Se- curity Act (42 U.S.C. 1395ww(d)(1)(B)(iv)). ‘‘(3) CONTINUATION OF REVIEWS.—Under contracts under this subsection, the Secretary shall establish an error rate with respect to such reviews that could re- quire further review of the medical necessity of admis- sions and continued stay in the hospital involved and other actions as determined by the Secretary. ‘‘(4) TERMINATION OF REQUIRED REVIEWS.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B), the previous provisions of this subsection shall cease to apply for discharges occurring on or after October 1, 2010. ‘‘(B) CONTINUATION.—As of the date specified in sub- paragraph (A), the Secretary shall determine whether to continue to guarantee, through continued medical review and sampling under this paragraph, recovery of at least 75 percent of overpayments received by long-term care hospitals due to medically unneces- sary admissions and continued stays. ‘‘(5) FUNDING.—The costs to fiscal intermediaries or medicare administrative contractors conducting the medical necessity reviews under paragraph (1) shall be funded from the aggregate overpayments recouped by the Secretary of Health and Human Services from long- term care hospitals due to medically unnecessary ad- missions and continued stays. The Secretary may use an amount not in excess of 40 percent of the overpay- ments recouped under this paragraph to compensate the fiscal intermediaries or Medicare administrative contractors for the costs of services performed.’’ EXTENDING CERTAIN MEDICARE HOSPITAL WAGE INDEX RECLASSIFICATIONS Pub. L. 110–173, title I, § 117(a)(2), (3), Dec. 29, 2007, 121 Stat. 2507, as amended by Pub. L. 110–275, title I, § 124(b), July 15, 2008, 122 Stat. 2518; Pub. L. 111–309, title I, § 102(b), Dec. 15, 2010, 124 Stat. 3287, provided that: ‘‘(2) SPECIAL EXCEPTION RECLASSIFICATIONS.—The Sec- retary of Health and Human Services shall extend for discharges occurring through the last date of the exten- sion of reclassifications under section 106(a) of the Medicare Improvement[s] and Extension Act of 2006 (di- vision B of Public Law 109–432) [set out below], the spe- cial exception reclassifications made under the author- ity of section 1886(d)(5)(I)(i) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(I)(i)) and contained in the final rule promulgated by the Secretary in the Federal Reg- ister on August 11, 2004 (69 Fed. Reg. 49105, 49107). ‘‘(3) USE OF PARTICULAR WAGE INDEX.—For purposes of implementation of this subsection [par. (1) of this sub- section amended section 106(a) of Pub. L. 109–432, set out below] in fiscal years 2008 and 2009, the Secretary shall use the hospital wage index that was promulgated by the Secretary in the Federal Register on October 10, 2007 (72 Fed. Reg. 57634), and any subsequent correc- tions.’’ CORRECTION OF APPLICATION OF WAGE INDEX DURING TAX RELIEF AND HEALTH CARE ACT EXTENSION Pub. L. 110–173, title I, § 117(c), Dec. 29, 2007, 121 Stat. 2508, provided that: ‘‘In the case of a subsection (d) hos- pital (as defined for purposes of section 1886 of the So- cial Security Act (42 U.S.C. 1395ww)) with respect to which— ‘‘(1) a reclassification of its wage index for purposes of such section was extended for the period beginning on April 1, 2007, and ending on September 30, 2007, pursuant to subsection (a) of section 106 of division B of the Tax Relief and Health Care Act of 2006 [Pub. L. 109–432] (42 U.S.C. 1395[ww] note); and ‘‘(2) the wage index applicable for such hospital dur- ing such period was lower than the wage index appli- cable for such hospital during the period beginning on October 1, 2006, and ending on March 31, 2007, the Secretary [of Health and Human Services] shall apply the higher wage index that was applicable for such hospital during the period beginning on October 1, 2006, and ending on March 31, 2007, for the entire fiscal year 2007. If the Secretary determines that the applica- tion of the preceding sentence to a hospital will result in a hospital being owed additional reimbursement, the Secretary shall make such payments within 90 days after the settlement of the applicable cost report.’’ CORRECTION OF MID-YEAR RECLASSIFICATION EXPIRATION Pub. L. 109–432, div. B, title I, § 106(a), Dec. 20, 2006, 120 Stat. 2982, as amended by Pub. L. 110–173, title I, § 117(a)(1), Dec. 29, 2007, 121 Stat. 2507; Pub. L. 110–275, title I, § 124(a), July 15, 2008, 122 Stat. 2518; Pub. L. 111–148, title III, § 3137(a)(1), title X, § 10317, Mar. 23, 2010, 124 Stat. 438, 947; Pub. L. 111–309, title I, § 102(a)(1), Dec. 15, 2010, 124 Stat. 3286; Pub. L. 112–78, title III, § 302(a), Dec. 23, 2011, 125 Stat. 1284; Pub. L. 112–96, title III, § 3001(a), Feb. 22, 2012, 126 Stat. 185, provided that: ‘‘Not- withstanding any other provision of law, in the case of a subsection (d) hospital (as defined for purposes of sec- tion 1886 of the Social Security Act (42 U.S.C. 1395ww)) with respect to which a reclassification of its wage index for purposes of such section would (but for this subsection) expire on March 31, 2007, such reclassifica- tion of such hospital shall be extended through March 31, 2012. The previous sentence shall not be effected in a budget-neutral manner.’’ [Pub. L. 112–96, title III, § 3001(b), (c)(1), Feb. 22, 2012, 126 Stat. 185, provided that: [‘‘(b) SPECIAL RULE.— [‘‘(1) IN GENERAL.—Subject to paragraph (2), for pur- poses of implementation of the amendment made by subsection (a) [amending section 106(a) of Pub. L. Page 3912 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww 109–432, set out above], including for purposes of the implementation of paragraph (2) of section 117(a) of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public Law 110–173) [set out above], for the pe- riod beginning on December 1, 2011, and ending on March 31, 2012, the Secretary of Health and Human Services shall use the hospital wage index that was promulgated by the Secretary of Health and Human Services in the Federal Register on August 18, 2011 (76 Fed. Reg. 51476), and any subsequent corrections. [‘‘(2) EXCEPTION.—In determining the wage index applicable to hospitals that qualify for wage index re- classification, the Secretary shall, for the period de- scribed in paragraph (1), include the average hourly wage data of hospitals whose reclassification was ex- tended pursuant to the amendment made by sub- section (a) only if including such data results in a higher applicable reclassified wage index. Any revi- sion to hospital wage indexes made as a result of this paragraph shall not be effected in a budget neutral manner. [‘‘(c) TIMEFRAME FOR PAYMENTS.— [‘‘(1) IN GENERAL.—The Secretary shall make pay- ments required under subsections (a) and (b) by not later than June 30, 2012.’’] [Pub. L. 112–78, title III, § 302(b), (c), Dec. 23, 2011, 125 Stat. 1284, as amended by Pub. L. 112–96, title III, § 3001(c)(2), Feb. 22, 2012, 126 Stat. 185, provided that: [‘‘(b) SPECIAL RULE FOR OCTOBER AND NOVEMBER 2011.— [‘‘(1) IN GENERAL.—Subject to paragraph (2), for pur- poses of implementation of the amendment made by subsection (a) [amending section 106(a) of Pub. L. 109–432, set out above], including for purposes of the implementation of paragraph (2) of section 117(a) of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public Law 110–173) [set out above], for the pe- riod beginning on October 1, 2011, and ending on No- vember 30, 2011, the Secretary of Health and Human Services shall use the hospital wage index that was promulgated by the Secretary of Health and Human Services in the Federal Register on August 18, 2011 (76 Fed. Reg. 51476), and any subsequent corrections. [‘‘(2) EXCEPTION.—In determining the wage index applicable to hospitals that qualify for wage index re- classification, the Secretary shall, for the period be- ginning on October 1, 2011, and ending on November 30, 2011, include the average hourly wage data of hos- pitals whose reclassification was extended pursuant to the amendment made by subsection (a) only if in- cluding such data results in a higher applicable re- classified wage index. Any revision to hospital wage indexes made as a result of this paragraph shall not be effected in a budget neutral manner. [‘‘(c) TIMEFRAME FOR PAYMENTS.—The Secretary shall make payments required under subsections (a) and (b) by not later than June 30, 2012.’’] PLAN FOR HOSPITAL VALUE BASED PURCHASING PROGRAM Pub. L. 109–171, title V, § 5001(b), Feb. 8, 2006, 120 Stat. 29, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall develop a plan to implement a value based purchasing program for payments under the Medicare program for subsection (d) hospitals be- ginning with fiscal year 2009. ‘‘(2) DETAILS.—Such a plan shall include consider- ation of the following issues: ‘‘(A) The on-going development, selection, and modification process for measures of quality and effi- ciency in hospital inpatient settings. ‘‘(B) The reporting, collection, and validation of quality data. ‘‘(C) The structure of value based payment adjust- ments, including the determination of thresholds or improvements in quality that would substantiate a payment adjustment, the size of such payments, and the sources of funding for the value based payments. ‘‘(D) The disclosure of information on hospital per- formance. In developing such a plan, the Secretary shall consult with relevant affected parties and shall consider experi- ence with such demonstrations that are relevant to the value based purchasing program under this sub- section.’’ EXTENDED PHASE-IN OF THE INPATIENT REHABILITATION FACILITY CLASSIFICATION CRITERIA Pub. L. 109–171, title V, § 5005, Feb. 8, 2006, 120 Stat. 33, as amended by Pub. L. 110–173, title I, § 115(b)(1), Dec. 29, 2007, 121 Stat. 2506, provided that: ‘‘(a) IN GENERAL.—Notwithstanding section 412.23(b)(2) of title 42, Code of Federal Regulations, the Secretary of Health and Human Services shall require a compliance rate that is no greater than the 60 percent compliance rate that became effective for cost report- ing periods beginning on or after July 1, 2006, in the classification criterion used under the IRF regulation (as defined in subsection (c)) to determine whether a hospital or unit of a hospital is an inpatient rehabilita- tion facility under the Medicare program under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. ‘‘(b) CONTINUED USE OF COMORBIDITIES.—For cost re- porting periods beginning on or after July 1, 2007, the Secretary shall include patients with comorbidities as described in section 412.23(b)(2)(i) of title 42, Code of Federal Regulations (as in effect as of January 1, 2007), in the inpatient population that counts toward the per- cent specified in subsection (a). ‘‘(c) IRF REGULATION.—For purposes of subsection (a), the term ‘IRF regulation’ means the rule published in the Federal Register on May 7, 2004, entitled ‘Medicare Program; Final Rule; Changes to the Criteria for Being Classified as an Inpatient Rehabilitation Facility’ (69 Fed. Reg. 25752).’’ [Pub. L. 110–173, title I, § 115(b)(2), Dec. 29, 2007, 121 Stat. 2506, provided that: ‘‘The amendment made by paragraph (1)(A) [amending section 5005(a) of Pub. L. 109–171, set out above] shall apply for cost reporting pe- riods beginning on or after July 1, 2007.’’] MEDICARE DEMONSTRATION PROJECTS TO PERMIT GAINSHARING ARRANGEMENTS Pub. L. 109–171, title V, § 5007, Feb. 8, 2006, 120 Stat. 34, as amended by Pub. L. 111–148, title III, § 3027, Mar. 23, 2010, 124 Stat. 415, provided that: ‘‘(a) ESTABLISHMENT.—The Secretary shall establish under this section a qualified gainsharing demonstra- tion program under which the Secretary shall approve demonstration projects by not later than November 1, 2006, to test and evaluate methodologies and arrange- ments between hospitals and physicians designed to govern the utilization of inpatient hospital resources and physician work to improve the quality and effi- ciency of care provided to Medicare beneficiaries and to develop improved operational and financial hospital performance with sharing of remuneration as specified in the project. Such projects shall be operational by not later than January 1, 2007. ‘‘(b) REQUIREMENTS DESCRIBED.—A demonstration project under this section shall meet the following re- quirements for purposes of maintaining or improving quality while achieving cost savings: ‘‘(1) ARRANGEMENT FOR REMUNERATION AS SHARE OF SAVINGS.—The demonstration project shall involve an arrangement between a hospital and a physician under which the hospital provides remuneration to the physician that represents solely a share of the savings incurred directly as a result of collaborative efforts between the hospital and the physician. ‘‘(2) WRITTEN PLAN AGREEMENT.—The demonstration project shall be conducted pursuant to a written agreement that— ‘‘(A) is submitted to the Secretary prior to imple- mentation of the project; and ‘‘(B) includes a plan outlining how the project will achieve improvements in quality and effi- ciency. ‘‘(3) PATIENT NOTIFICATION.—The demonstration project shall include a notification process to inform Page 3913 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww patients who are treated in a hospital participating in the project of the participation of the hospital in such project. ‘‘(4) MONITORING QUALITY AND EFFICIENCY OF CARE.— The demonstration project shall provide measures to ensure that the quality and efficiency of care pro- vided to patients who are treated in a hospital par- ticipating in the demonstration project is continu- ously monitored to ensure that such quality and effi- ciency is maintained or improved. ‘‘(5) INDEPENDENT REVIEW.—The demonstration project shall certify, prior to implementation, that the elements of the demonstration project are re- viewed by an organization that is not affiliated with the hospital or the physician participating in the project. ‘‘(6) REFERRAL LIMITATIONS.—The demonstration project shall not be structured in such a manner as to reward any physician participating in the project on the basis of the volume or value of referrals to the hospital by the physician. ‘‘(c) WAIVER OF CERTAIN RESTRICTIONS.— ‘‘(1) IN GENERAL.—An incentive payment made by a hospital to a physician under and in accordance with a demonstration project shall not constitute— ‘‘(A) remuneration for purposes of section 1128B of the Social Security Act (42 U.S.C. 1320a–7b); ‘‘(B) a payment intended to induce a physician to reduce or limit services to a patient entitled to benefits under Medicare or a State plan approved under title XIX of such Act [42 U.S.C. 1396 et seq.] in violation of section 1128A of such Act (42 U.S.C. 1320a–7a); or ‘‘(C) a financial relationship for purposes of sec- tion 1877 of such Act (42 U.S.C. 1395nn). ‘‘(2) PROTECTION FOR EXISTING ARRANGEMENTS.—In no case shall the failure to comply with the require- ments described in paragraph (1) affect a finding made by the Inspector General of the Department of Health and Human Services prior to the date of the enactment of this Act [Feb. 8, 2006] that an arrange- ment between a hospital and a physician does not violate paragraph (1) or (2) of section 1128A(a) of the Social Security Act (42 U.S.C. 1320a–7(a) [42 U.S.C. 1320a–7a(a)]). ‘‘(d) PROGRAM ADMINISTRATION.— ‘‘(1) SOLICITATION OF APPLICATIONS.—By not later than 90 days after the date of the enactment of this Act [Feb. 8, 2006], the Secretary shall solicit applica- tions for approval of a demonstration project, in such form and manner, and at such time specified by the Secretary. ‘‘(2) NUMBER OF PROJECTS APPROVED.—The Sec- retary shall approve not more than 6 demonstration projects, at least 2 of which shall be located in a rural area. ‘‘(3) DURATION.—The qualified gainsharing dem- onstration program under this section shall be con- ducted for the period beginning on January 1, 2007, and ending on December 31, 2009 (or September 30, 2011, in the case of a demonstration project in oper- ation as of October 1, 2008). ‘‘(e) REPORTS.— ‘‘(1) INITIAL REPORT.—By not later than December 1, 2006, the Secretary shall submit to Congress a report on the number of demonstration projects that will be conducted under this section. ‘‘(2) PROJECT UPDATE.—By not later than December 1, 2007, the Secretary shall submit to Congress a re- port on the details of such projects (including the project improvements towards quality and efficiency described in subsection (b)(2)(B)). ‘‘(3) QUALITY IMPROVEMENT AND SAVINGS.—By not later than March 31, 2011, the Secretary shall submit to Congress a report on quality improvement and sav- ings achieved as a result of the qualified gainsharing demonstration program established under subsection (a). ‘‘(4) FINAL REPORT.—By not later than March 31, 2013, the Secretary shall submit to Congress a final report on the information described in paragraph (3). ‘‘(f) FUNDING.— ‘‘(1) IN GENERAL.—Out of any funds in the Treasury not otherwise appropriated, there are appropriated to the Secretary for fiscal year 2006 $6,000,000, and for fiscal year 2010, $1,600,000, to carry out this section. ‘‘(2) AVAILABILITY.—Funds appropriated under para- graph (1) shall remain available for expenditure through fiscal year 2014 or until expended. ‘‘(g) DEFINITIONS.—For purposes of this section: ‘‘(1) DEMONSTRATION PROJECT.—The term ‘dem- onstration project’ means a project implemented under the qualified gainsharing demonstration pro- gram established under subsection (a). ‘‘(2) HOSPITAL.—The term ‘hospital’ means a hos- pital that receives payment under section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)), and does not include a critical access hospital (as defined in section 1861(mm) of such Act (42 U.S.C. 1395x(mm))). ‘‘(3) MEDICARE.—The term ‘Medicare’ means the programs under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. ‘‘(4) PHYSICIAN.—The term ‘physician’ means, with respect to a demonstration project, a physician de- scribed in paragraph (1) or (3) of section 1861(r) of the Social Security Act (42 U.S.C. 1395x(r)) who is li- censed as such a physician in the area in which the project is located and meets requirements to provide services for which benefits are provided under Medi- care. Such term shall be deemed to include a practi- tioner described in section 1842(e)(18)(C) of such Act (42 U.S.C. 1395u(e)(18)(C)). ‘‘(5) SECRETARY.—The term ‘Secretary’ means the Secretary of Health and Human Services.’’ MORE FREQUENT UPDATE IN WEIGHTS USED IN HOSPITAL MARKET BASKET Pub. L. 108–173, title IV, § 404, Dec. 8, 2003, 117 Stat. 2266, provided that: ‘‘(a) MORE FREQUENT UPDATES IN WEIGHTS.—After re- vising the weights used in the hospital market basket under section 1886(b)(3)(B)(iii) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B)(iii)) to reflect the most current data available, the Secretary [of Health and Human Services] shall establish a frequency for revis- ing such weights, including the labor share, in such market basket to reflect the most current data avail- able more frequently than once every 5 years. ‘‘(b) INCORPORATION OF EXPLANATION IN RULE- MAKING.—The Secretary shall include in the publica- tion of the final rule for payment for inpatient hospital services under section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) for fiscal year 2006, an explanation of the reasons for, and options considered, in deter- mining frequency established under subsection (a).’’ RURAL COMMUNITY HOSPITAL DEMONSTRATION PROGRAM Pub. L. 108–173, title IV, § 410A, Dec. 8, 2003, 117 Stat. 2272, as amended by Pub. L. 111–148, title III, § 3123, title X, § 10313, Mar. 23, 2010, 124 Stat. 423, 943; Pub. L. 114–255, div. C, title XV, § 15003, Dec. 13, 2016, 130 Stat. 1317; Pub. L. 116–260, div. CC, title I, § 128, Dec. 27, 2020, 134 Stat. 2971, provided that: ‘‘(a) ESTABLISHMENT OF RURAL COMMUNITY HOSPITAL (RCH) DEMONSTRATION PROGRAM.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall establish a demonstration pro- gram to test the feasibility and advisability of the es- tablishment of rural community hospitals (as defined in subsection (f)(1)) to furnish covered inpatient hos- pital services (as defined in subsection (f)(2)) to medi- care beneficiaries. ‘‘(2) DEMONSTRATION AREAS.—The program shall be conducted in rural areas selected by the Secretary in States with low population densities, as determined by the Secretary. ‘‘(3) APPLICATION.—Each rural community hospital that is located in a demonstration area selected under paragraph (2) that desires to participate in the Page 3914 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww demonstration program under this section shall sub- mit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. ‘‘(4) SELECTION OF HOSPITALS.—The Secretary shall select from among rural community hospitals sub- mitting applications under paragraph (3) not more than 15 of such hospitals to participate in the dem- onstration program under this section. ‘‘(5) DURATION.—The Secretary shall conduct the demonstration program under this section for a 5- year period (in this section referred to as the ‘initial 5-year period’) and, as provided in subsection (g), for the 15-year extension period. ‘‘(6) IMPLEMENTATION.—The Secretary shall imple- ment the demonstration program not later than Jan- uary 1, 2005, but may not implement the program be- fore October 1, 2004. ‘‘(b) PAYMENT.— ‘‘(1) IN GENERAL.—The amount of payment under the demonstration program for covered inpatient hos- pital services furnished in a rural community hos- pital, other than such services furnished in a psy- chiatric or rehabilitation unit of the hospital which is a distinct part, is— ‘‘(A) for discharges occurring in the first cost re- porting period beginning on or after the implemen- tation of the demonstration program, the reason- able costs of providing such services; and ‘‘(B) for discharges occurring in a subsequent cost reporting period under the demonstration program, the lesser of— ‘‘(i) the reasonable costs of providing such serv- ices in the cost reporting period involved; or ‘‘(ii) the target amount (as defined in paragraph (2)), applicable to the cost reporting period in- volved. ‘‘(2) TARGET AMOUNT.—For purposes of paragraph (1)(B)(ii), the term ‘target amount’ means, with re- spect to a rural community hospital for a particular 12-month cost reporting period— ‘‘(A) in the case of the second such cost reporting period for which this subsection is in effect, the reasonable costs of providing such covered inpa- tient hospital services as determined under para- graph (1)(A), and ‘‘(B) in the case of a later cost reporting period, the target amount for the preceding 12-month cost reporting period, increased by the applicable percentage increase (under clause (i) of section 1886(b)(3)(B) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B))) in the mar- ket basket percentage increase (as defined in clause (iii) of such section) for that particular cost reporting period. ‘‘(c) FUNDING.— ‘‘(1) IN GENERAL.—The Secretary shall provide for the transfer from the Federal Hospital Insurance Trust Fund under section 1817 of the Social Security Act (42 U.S.C. 1395i) of such funds as are necessary for the costs of carrying out the demonstration program under this section. ‘‘(2) BUDGET NEUTRALITY.—In conducting the dem- onstration program under this section, the Secretary shall ensure that the aggregate payments made by the Secretary do not exceed the amount which the Secretary would have paid if the demonstration pro- gram under this section was not implemented. ‘‘(d) WAIVER AUTHORITY.—The Secretary may waive such requirements of title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) as may be necessary for the purpose of carrying out the demonstration program under this section. ‘‘(e) REPORT.—Not later than August 1, 2018, the Sec- retary shall submit to Congress a report on the dem- onstration program under this section, together with recommendations for such legislation and administra- tive action as the Secretary determines to be appro- priate. ‘‘(f) DEFINITIONS.—In this section: ‘‘(1) RURAL COMMUNITY HOSPITAL DEFINED.— ‘‘(A) IN GENERAL.—The term ‘rural community hospital’ means a hospital (as defined in section 1861(e) of the Social Security Act (42 U.S.C. 1395x(e))) that— ‘‘(i) is located in a rural area (as defined in sec- tion 1886(d)(2)(D) of such Act (42 U.S.C. 1395ww(d)(2)(D))) or treated as being so located pursuant to section 1886(d)(8)(E) of such Act (42 U.S.C. 1395ww(d)(8)(E)); ‘‘(ii) subject to subparagraph (B), has fewer than 51 acute care inpatient beds, as reported in its most recent cost report; ‘‘(iii) makes available 24-hour emergency care services; and ‘‘(iv) is not eligible for designation, or has not been designated, as a critical access hospital under section 1820 of the Social Security Act (42 U.S.C. 1395i–4). ‘‘(B) TREATMENT OF PSYCHIATRIC AND REHABILITA- TION UNITS.—For purposes of subparagraph (A)(ii), beds in a psychiatric or rehabilitation unit of the hospital which is a distinct part of the hospital shall not be counted. ‘‘(2) COVERED INPATIENT HOSPITAL SERVICES.—The term ‘covered inpatient hospital services’ means in- patient hospital services, and includes extended care services furnished under an agreement under section 1883 of the Social Security Act (42 U.S.C. 1395tt).’’ ‘‘(g) FIFTEEN-YEAR EXTENSION OF DEMONSTRATION PROGRAM.— ‘‘(1) IN GENERAL.—Subject to the succeeding provi- sions of this subsection, the Secretary shall conduct the demonstration program under this section for an additional 15-year (in this section referred to as the ‘15-year extension period’) that begins on the date im- mediately following the last day of the initial 5-year period under subsection (a)(5). ‘‘(2) EXPANSION OF DEMONSTRATION STATES.—Not- withstanding subsection (a)(2), during the 15-year ex- tension period, the Secretary shall expand the num- ber of States with low population densities deter- mined by the Secretary under such subsection to 20. In determining which States to include in such ex- pansion, the Secretary shall use the same criteria and data that the Secretary used to determine the States under such subsection for purposes of the ini- tial 5-year period. ‘‘(3) INCREASE IN MAXIMUM NUMBER OF HOSPITALS PARTICIPATING IN THE DEMONSTRATION PROGRAM.—Not- withstanding subsection (a)(4), during the 15-year ex- tension period, not more than 30 rural community hospitals may participate in the demonstration pro- gram under this section. ‘‘(4) HOSPITALS PARTICIPATING IN THE DEMONSTRA- TION PROGRAM DURING THE INITIAL 5-YEAR PERIOD.—In the case of a rural community hospital that is par- ticipating in the demonstration program under this section as of the last day of the initial 5-year period, the Secretary— ‘‘(A) shall provide for the continued participation of such rural community hospital in the demonstra- tion program during the 15-year extension period unless the rural community hospital makes an elec- tion, in such form and manner as the Secretary may specify, to discontinue such participation; and ‘‘(B) in calculating the amount of payment under subsection (b) to the rural community hospital for covered inpatient hospital services furnished by the hospital during each 5-year period in such 15-year extension period, shall substitute, under paragraph (1)(A) of such subsection— ‘‘(i) the reasonable costs of providing such serv- ices for discharges occurring in the first cost re- porting period beginning on or after the first day of each applicable 5-year period in the 15-year ex- tension period, for ‘‘(ii) the reasonable costs of providing such services for discharges occurring in the first cost reporting period beginning on or after the imple- mentation of the demonstration program. Page 3915 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(5) OTHER HOSPITALS IN DEMONSTRATION PRO- GRAM.— ‘‘(A) CURES ACT EXTENSION.—During the second 5 years of the 15-year extension period, the Secretary shall apply the provisions of paragraph (4) to rural community hospitals that are not described in paragraph (4) but are participating in the dem- onstration program under this section as of Decem- ber 30, 2014, in a similar manner as such provisions apply to rural community hospitals described in paragraph (4). ‘‘(B) ADDITIONAL EXTENSION.—During the third 5 years of the 15-year extension period, the Secretary shall apply the provisions of paragraph (4) to rural community hospitals that are not described in paragraph (4) but are participating in the dem- onstration program under this section as of Decem- ber 30, 2019, in a similar manner as such provisions apply to rural community hospitals described in paragraph (4). ‘‘(6) EXPANSION OF DEMONSTRATION PROGRAM TO RURAL AREAS IN ANY STATE.— ‘‘(A) IN GENERAL.—The Secretary shall, notwith- standing subsection (a)(2) or paragraph (2) of this subsection, not later than April 12, 2017, issue a so- licitation for applications to select up to the max- imum number of additional rural community hos- pitals located in any State to participate in the demonstration program under this section for the second 5 years of the 15-year extension period with- out exceeding the limitation under paragraph (3) of this subsection. ‘‘(B) PRIORITY.—In determining which rural com- munity hospitals that submitted an application pursuant to the solicitation under subparagraph (A) to select for participation in the demonstration program, the Secretary— ‘‘(i) shall give priority to rural community hos- pitals located in one of the 20 States with the lowest population densities (as determined by the Secretary using the 2015 Statistical Abstract of the United States); and ‘‘(ii) may consider— ‘‘(I) closures of hospitals located in rural areas in the State in which the rural commu- nity hospital is located during the 5-year period immediately preceding the date of the enact- ment of this paragraph; and ‘‘(II) the population density of the State in which the rural community hospital is lo- cated.’’ APPLICABILITY OF CHAPTER 35 OF TITLE 44 Pub. L. 108–173, title IV, § 422(b)(2), Dec. 8, 2003, 117 Stat. 2286, as amended by Pub. L. 111–148, title V, § 5503(c), Mar. 23, 2010, 124 Stat. 659, provided that: ‘‘Chapter 35 of title 44, United States Code, shall not apply with respect to applications under paragraphs (7) and (8) of subsection (h) of section 1886 of the Social Se- curity Act [42 U.S.C. 1395ww(h)(7), (8)][.]’’ REPORT ON EXTENSION OF APPLICATIONS UNDER REDISTRIBUTION PROGRAM Pub. L. 108–173, title IV, § 422(c), Dec. 8, 2003, 117 Stat. 2286, provided that: ‘‘Not later than July 1, 2005, the Secretary [of Health and Human Services] shall submit to Congress a report containing recommendations re- garding whether to extend the deadline for applications for an increase in resident limits under section 1886(h)(4)(I)(ii)(II) of the Social Security Act [section 1886(h)(4) (42 U.S.C. 1395ww(h)(4)) does not contain a subpar. (I)] (as added by subsection (a)).’’ MEDPAC STUDY ON RURAL HOSPITAL PAYMENT ADJUSTMENTS Pub. L. 108–173, title IV, § 433, Dec. 8, 2003, 117 Stat. 2288, provided that: ‘‘(a) IN GENERAL.—The Medicare Payment Advisory Commission shall conduct a study of the impact of sec- tions 401 through 406, 411, 416, and 505 [amending this section and sections 1395f, 1395g, 1395i–4, 1395l, 1395m, 1395cc, and 1395tt of this title and enacting provisions set out as notes under this section and sections 1395f, 1395g, 1395i–4, 1395l, and 1395m of this title]. The Com- mission shall analyze the effect on total payments, growth in costs, capital spending, and such other pay- ment effects under those sections. ‘‘(b) REPORTS.— ‘‘(1) INTERIM REPORT.—Not later than 18 months after the date of the enactment of this Act [Dec. 8, 2003], the Commission shall submit to Congress an in- terim report on the matters studied under subsection (a) with respect only to changes to the critical access hospital provisions under section 405 [amending sec- tions 1395f, 1395g, 1395i–4, 1395m, and 1395tt of this title and enacting provisions set out as notes under sections 1395f, 1395g, 1395i–4, and 1395m of this title]. ‘‘(2) FINAL REPORT.—Not later than 3 years after the date of the enactment of this Act [Dec. 8, 2003], the Commission shall submit to Congress a final report on all matters studied under subsection (a).’’ GAO STUDY AND REPORT ON APPROPRIATENESS OF PAYMENTS UNDER THE PROSPECTIVE PAYMENT SYS- TEM FOR INPATIENT HOSPITAL SERVICES Pub. L. 108–173, title V, § 501(c), Dec. 8, 2003, 117 Stat. 2290, provided that: ‘‘(1) STUDY.—The Comptroller General of the United States, using the most current data available, shall conduct a study to determine— ‘‘(A) the appropriate level and distribution of pay- ments in relation to costs under the prospective pay- ment system under section 1886 of the Social Security Act (42 U.S.C. 1395ww) for inpatient hospital services furnished by subsection (d) hospitals (as defined in subsection (d)(1)(B) of such section); and ‘‘(B) whether there is a need to adjust such pay- ments under such system to reflect legitimate dif- ferences in costs across different geographic areas, kinds of hospitals, and types of cases. ‘‘(2) REPORT.—Not later than 24 months after the date of the enactment of this Act [Dec. 8, 2003], the Comp- troller General of the United States shall submit to Congress a report on the study conducted under para- graph (1) together with such recommendations for leg- islative and administrative action as the Comptroller General determines appropriate.’’ NOT BUDGET NEUTRAL Pub. L. 108–173, title V, § 503(d)(2), Dec. 8, 2003, 117 Stat. 2292, provided that: ‘‘There shall be no reduction or other adjustment in payments under section 1886 of the Social Security Act [42 U.S.C. 1395ww] because an additional payment is provided under subsection (d)(5)(K)(ii)(III) of such section.’’ ONE-TIME APPEALS PROCESS FOR HOSPITAL WAGE INDEX CLASSIFICATION Pub. L. 108–173, title V, § 508, Dec. 8, 2003, 117 Stat. 2297, as amended by Pub. L. 110–173, title I, § 117(b), Dec. 29, 2007, 121 Stat. 2507; Pub. L. 110–275, title I, § 124(c), July 15, 2008, 122 Stat. 2518, provided that: ‘‘(a) ESTABLISHMENT OF PROCESS.— ‘‘(1) IN GENERAL.—The Secretary [of Health and Human Services] shall establish not later than Janu- ary 1, 2004, by instruction or otherwise a process under which a hospital may appeal the wage index classification otherwise applicable to the hospital and select another area within the State (or, at the discretion of the Secretary, within a contiguous State) to which to be reclassified. ‘‘(2) PROCESS REQUIREMENTS.—The process estab- lished under paragraph (1) shall be consistent with the following: ‘‘(A) Such an appeal may be filed as soon as pos- sible after the date of the enactment of this Act [Dec. 8, 2003] but shall be filed by not later than February 15, 2004. Page 3916 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(B) Such an appeal shall be heard by the Medi- care Geographic Reclassification Review Board. ‘‘(C) There shall be no further administrative or judicial review of a decision of such Board. ‘‘(3) RECLASSIFICATION UPON SUCCESSFUL APPEAL.—If the Medicare Geographic Reclassification Review Board determines that the hospital is a qualifying hospital (as defined in subsection (c)), the hospital shall be reclassified to the area selected under para- graph (1). Such reclassification shall apply with re- spect to discharges occurring during the 3-year period beginning with April 1, 2004. ‘‘(4) INAPPLICABILITY OF CERTAIN PROVISIONS.—Ex- cept as the Secretary may provide, the provisions of paragraphs (8) and (10) of section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) shall not apply to an appeal under this section. ‘‘(b) APPLICATION OF RECLASSIFICATION.—In the case of an appeal decided in favor of a qualifying hospital under subsection (a), the wage index reclassification shall not affect the wage index computation for any area or for any other hospital and shall not be effected in a budget neutral manner. The provisions of this sec- tion shall not affect payment for discharges occurring after the end of the 3-year-period referred to in sub- section (a). ‘‘(c) QUALIFYING HOSPITAL DEFINED.—For purposes of this section, the term ‘qualifying hospital’ means a subsection (d) hospital (as defined in section 1886(d)(1)(B) of the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B)) that— ‘‘(1) does not qualify for a change in wage index classification under paragraph (8) or (10) of section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) on the basis of requirements relating to distance or commuting; and ‘‘(2) meets such other criteria, such as quality, as the Secretary may specify by instruction or other- wise. The Secretary may modify the wage comparison guide- lines promulgated under section 1886(d)(10)(D) of such Act (42 U.S.C. 1395ww(d)(10)(D)) in carrying out this sec- tion. ‘‘(d) WAGE INDEX CLASSIFICATION.—For purposes of this section, the term ‘wage index classification’ means the geographic area in which it is classified for pur- poses of determining for a fiscal year the factor used to adjust the DRG prospective payment rate under section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) for area differences in hospital wage levels that applies to such hospital under paragraph (3)(E) of such section. ‘‘(e) LIMITATION ON EXPENDITURES.—The aggregate amount of additional expenditures resulting from the application of this section shall not exceed $900,000,000. ‘‘(f) TRANSITIONAL EXTENSION.—Any reclassification of a county or other area made by Act of Congress for purposes of making payments under section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) that ex- pired on September 30, 2003, shall be deemed to be in ef- fect during the period beginning on January 1, 2004, and ending on September 30, 2004. ‘‘(g) DISREGARDING HOSPITAL RECLASSIFICATIONS FOR PURPOSES OF GROUP RECLASSIFICATIONS.—For purposes of the reclassification of a group of hospitals in a geo- graphic area under section 1886(d) of the Social Secu- rity Act [42 U.S.C. 1395ww(d)] for purposes of discharges occurring beginning on October 1, 2007, and ending on the last date of the extension of reclassifications under section 106(a) of the Medicare Improvement[s] and Ex- tension Act of 2006 (division B of Public Law 109–432) [set out above], a hospital reclassified under this sec- tion (including any such reclassification which is ex- tended under section 106(a) of the Medicare Improve- ments and Extension Act of 2006) [div. B of Pub. L. 109–432, set out as a note under this section] shall not be taken into account and shall not prevent the other hospitals in such area from continuing such a group for such purpose.’’ EXCEPTION TO INITIAL RESIDENCY PERIOD FOR GERIATRIC RESIDENCY OR FELLOWSHIP PROGRAMS Pub. L. 108–173, title VII, § 712, Dec. 8, 2003, 117 Stat. 2340, provided that: ‘‘(a) CLARIFICATION OF CONGRESSIONAL INTENT.—Con- gress intended section 1886(h)(5)(F)(ii) of the Social Se- curity Act (42 U.S.C. 1395ww(h)(5)(F)(ii)), as added by section 9202 of the Consolidated Omnibus Budget Rec- onciliation Act of 1985 (Public Law 99–272), to provide an exception to the initial residency period for geri- atric residency or fellowship programs such that, where a particular approved geriatric training program re- quires a resident to complete 2 years of training to ini- tially become board eligible in the geriatric specialty, the 2 years spent in the geriatric training program are treated as part of the resident’s initial residency pe- riod, but are not counted against any limitation on the initial residency period. ‘‘(b) INTERIM FINAL REGULATORY AUTHORITY AND EF- FECTIVE DATE.—The Secretary [of Health and Human Services] shall promulgate interim final regulations consistent with the congressional intent expressed in this section after notice and pending opportunity for public comment to be effective for cost reporting peri- ods beginning on or after October 1, 2003.’’ TREATMENT OF VOLUNTEER SUPERVISION Pub. L. 108–173, title VII, § 713, Dec. 8, 2003, 117 Stat. 2340, provided that: ‘‘(a) MORATORIUM ON CHANGES IN TREATMENT.—During the 1-year period beginning on January 1, 2004, for pur- poses of applying subsections (d)(5)(B) and (h) of section 1886 of the Social Security Act (42 U.S.C. 1395ww), the Secretary [of Health and Human Services] shall allow all hospitals to count residents in osteopathic and allopathic family practice programs in existence as of January 1, 2002, who are training at non-hospital sites, without regard to the financial arrangement between the hospital and the teaching physician practicing in the non-hospital site to which the resident has been as- signed. ‘‘(b) STUDY AND REPORT.— ‘‘(1) STUDY.—The Inspector General of the Depart- ment of Health and Human Services shall conduct a study of the appropriateness of alternative payment methodologies under such sections for the costs of training residents in non-hospital settings. ‘‘(2) REPORT.—Not later than 1 year after the date of the enactment of this Act [Dec. 8, 2003], the Inspec- tor General shall submit to Congress a report on the study conducted under paragraph (1), together with such recommendations as the Inspector General de- termines appropriate.’’ FURNISHING HOSPITALS WITH INFORMATION TO COMPUTE DSH FORMULA Pub. L. 108–173, title IX, § 951, Dec. 8, 2003, 117 Stat. 2427, provided that: ‘‘Beginning not later than 1 year after the date of the enactment of this Act [Dec. 8, 2003], the Secretary [of Health and Human Services] shall arrange to furnish to subsection (d) hospitals (as defined in section 1886(d)(1)(B) of the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B)) the data necessary for such hospitals to compute the number of patient days used in computing the disproportionate patient per- centage under such section for that hospital for the current cost reporting year. Such data shall also be fur- nished to other hospitals which would qualify for addi- tional payments under part A of title XVIII of the So- cial Security Act [42 U.S.C. 1395c et seq.] on the basis of such data.’’ SPECIAL RULES FOR PAYMENT FOR FISCAL YEAR 2001 Pub. L. 106–554, § 1(a)(6) [title III, § 301(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–491, provided that: ‘‘Notwith- standing the amendment made by subsection (a) [amending this section], for purposes of making pay- ments for fiscal year 2001 for inpatient hospital services furnished by subsection (d) hospitals (as defined in sec- Page 3917 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww tion 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))[)], the ‘applicable percentage increase’ referred to in section 1886(b)(3)(B)(i) of such Act (42 U.S.C. 1395ww(b)(3)(B)(i))— ‘‘(1) for discharges occurring on or after October 1, 2000, and before April 1, 2001, shall be determined in accordance with subclause (XVI) of such section as in effect on the day before the date of the enactment of this Act [Dec. 21, 2000]; and ‘‘(2) for discharges occurring on or after April 1, 2001, and before October 1, 2001, shall be equal to— ‘‘(A) the market basket percentage increase plus 1.1 percentage points for hospitals (other than sole community hospitals) in all areas; and ‘‘(B) the market basket percentage increase for sole community hospitals.’’ Pub. L. 106–554, § 1(a)(6) [title III, § 302(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–493, provided that: ‘‘Notwith- standing paragraph (5)(B)(ii)(V) of section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)(ii)(V)), for purposes of making payments for subsection (d) hos- pitals (as defined in paragraph (1)(B) of such section) with indirect costs of medical education, the indirect teaching adjustment factor referred to in paragraph (5)(B)(ii) of such section shall be determined, for dis- charges occurring on or after April 1, 2001, and before October 1, 2001, as if ‘c’ in paragraph (5)(B)(ii)(V) of such section equalled 1.66 rather than 1.54.’’ Pub. L. 106–554, § 1(a)(6) [title III, § 303(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–493, provided that: ‘‘Notwith- standing the amendment made by subsection (a)(1) [amending this section], for purposes of making dis- proportionate share payments for subsection (d) hos- pitals (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))[)] for fiscal year 2001, the additional payment amount otherwise de- termined under clause (ii) of section 1886(d)(5)(F) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(F))— ‘‘(1) for discharges occurring on or after October 1, 2000, and before April 1, 2001, shall be adjusted as pro- vided by clause (ix)(III) of such section as in effect on the day before the date of the enactment of this Act [Dec. 21, 2000]; and ‘‘(2) for discharges occurring on or after April 1, 2001, and before October 1, 2001, shall, instead of being reduced by 3 percent as provided by clause (ix)(III) of such section as in effect after the date of the enact- ment of this Act, be reduced by 1 percent.’’ Pub. L. 106–554, § 1(a)(6) [title V, § 547(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–553, provided that: ‘‘(a) INPATIENT HOSPITAL SERVICES.—The payment in- crease provided under the following sections shall not apply to discharges occurring after fiscal year 2001 and shall not be taken into account in calculating the pay- ment amounts applicable for discharges occurring after such fiscal year: ‘‘(1) Section 301(b)(2)(A) [set out as a note above] (relating to acute care hospital payment update). ‘‘(2) Section 302(b) [set out as a note above] (relat- ing to IME percentage adjustment). ‘‘(3) Section 303(b)(2) [set out as a note above] (re- lating to DSH payments).’’ CONSIDERATION OF PRICE OF BLOOD AND BLOOD PRODUCTS IN MARKET BASKET INDEX Pub. L. 106–554, § 1(a)(6) [title III, § 301(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A–491, provided that: ‘‘The Sec- retary of Health and Human Services shall, when next (after the date of the enactment of this Act [Dec. 21, 2000]) rebasing and revising the hospital market basket index (as defined in section 1886(b)(3)(B)(iii) of the So- cial Security Act (42 U.S.C. 1395ww(b)(3)(B)(iii))), con- sider the prices of blood and blood products purchased by hospitals and determine whether those prices are adequately reflected in such index.’’ MEDPAC STUDY AND REPORT REGARDING CERTAIN HOSPITAL COSTS Pub. L. 106–554, § 1(a)(6) [title III, § 301(d)], Dec. 21, 2000, 114 Stat. 2763, 2763A–491, provided that: ‘‘(1) STUDY.—The Medicare Payment Advisory Com- mission shall conduct a study on— ‘‘(A) any increased costs incurred by subsection (d) hospitals (as defined in paragraph (1)(B) of section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d))) in providing inpatient hospital services to medicare beneficiaries under title XVIII of such Act [42 U.S.C. 1395 et seq.] during the period beginning on October 1, 1983, and ending on September 30, 1999, that were attributable to— ‘‘(i) complying with new blood safety measure re- quirements; and ‘‘(ii) providing such services using new tech- nologies; ‘‘(B) the extent to which the prospective payment system for such services under such section provides adequate and timely recognition of such increased costs; ‘‘(C) the prospects for (and to the extent prac- ticable, the magnitude of) cost increases that hos- pitals will incur in providing such services that are attributable to complying with new blood safety measure requirements and providing such services using new technologies during the 10 years after the date of the enactment of this Act [Dec. 21, 2000]; and ‘‘(D) the feasibility and advisability of establishing mechanisms under such payment system to provide for more timely and accurate recognition of such cost increases in the future. ‘‘(2) CONSULTATION.—In conducting the study under this subsection, the Commission shall consult with rep- resentatives of the blood community, including— ‘‘(A) hospitals; ‘‘(B) organizations involved in the collection, proc- essing, and delivery of blood; and ‘‘(C) organizations involved in the development of new blood safety technologies. ‘‘(3) REPORT.—Not later than 1 year after the date of the enactment of this Act [Dec. 21, 2000], the Commis- sion shall submit to Congress a report on the study conducted under paragraph (1) together with such rec- ommendations for legislation and administrative ac- tion as the Commission determines appropriate.’’ PROCESS TO PERMIT STATEWIDE WAGE INDEX CALCULATION AND APPLICATION Pub. L. 106–554, § 1(a)(6) [title III, § 304(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–494, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall establish a process (based on the voluntary process utilized by the Secretary of Health and Human Services under section 1848 of the Social Security Act (42 U.S.C. 1395w–4) for purposes of com- puting and applying a statewide geographic adjustment factor) under which an appropriate statewide entity may apply to have all the geographic areas in a State treated as a single geographic area for purposes of com- puting and applying the area wage index under section 1886(d)(3)(E) of such Act (42 U.S.C. 1395ww(d)(3)(E)). Such process shall be established by October 1, 2001, for reclassifications beginning in fiscal year 2003. ‘‘(2) PROHIBITION ON INDIVIDUAL HOSPITAL RECLASSI- FICATION.—Notwithstanding any other provision of law, if the Secretary applies a statewide geographic wage index under paragraph (1) with respect to a State, any application submitted by a hospital in that State under section 1886(d)(10) of the Social Security Act (42 U.S.C. 1395ww(d)(10)) for geographic reclassification shall not be considered.’’ COLLECTION OF INFORMATION ON OCCUPATIONAL MIX Pub. L. 106–554, § 1(a)(6) [title III, § 304(c)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A–495, provided that: ‘‘The Sec- retary of Health and Human Services shall provide for the collection of data every 3 years on occupational mix for employees of each subsection (d) hospital (as defined in section 1886(d)(1)(D) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(D))) in the provision of inpa- tient hospital services, in order to construct an occupa- Page 3918 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww tional mix adjustment in the hospital area wage index applied under section 1886(d)(3)(E) of such Act (42 U.S.C. 1395ww(d)(3)(E)).’’ Pub. L. 106–554, § 1(a)(6) [title III, § 304(c)(3)], Dec. 21, 2000, 114 Stat. 2763, 2763A–495, provided that: ‘‘By not later than September 30, 2003, for application beginning October 1, 2004, the Secretary shall first complete— ‘‘(A) the collection of data under paragraph (1) [set out above]; and ‘‘(B) the measurement under the third sentence of section 1886(d)(3)(E) [42 U.S.C. 1395ww(d)(3)(E)], as amended by paragraph (2).’’ PAYMENT FOR INPATIENT SERVICES OF PSYCHIATRIC HOSPITALS Pub. L. 106–554, § 1(a)(6) [title III, § 306], Dec. 21, 2000, 114 Stat. 2763, 2763A–496, provided that: ‘‘With respect to hospitals described in clause (i) of section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) and psychiatric units described in the matter following clause (v) of such section, in making incentive payments to such hospitals under section 1886(b)(1)(A) of such Act (42 U.S.C. 1395ww(b)(1)(A)) for cost reporting periods beginning on or after October 1, 2000, and before October 1, 2001, the Secretary of Health and Human Services, in clause (ii) of such section, shall substitute ‘3 percent’ for ‘2 percent’.’’ EXPEDITING RECOGNITION OF NEW TECHNOLOGIES INTO INPATIENT PPS CODING SYSTEM Pub. L. 106–554, § 1(a)(6) [title V, § 533(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–548, provided that: ‘‘(1) REPORT.—Not later than April 1, 2001, the Sec- retary of Health and Human Services shall submit to Congress a report on methods of expeditiously incor- porating new medical services and technologies into the clinical coding system used with respect to pay- ment for inpatient hospital services furnished under the medicare program under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.], together with a de- tailed description of the Secretary’s preferred methods to achieve this purpose. ‘‘(2) IMPLEMENTATION.—Not later than October 1, 2001, the Secretary shall implement the preferred methods described in the report transmitted pursuant to para- graph (1).’’ CONSULTATION PRIOR TO RULEMAKING Pub. L. 106–554, § 1(a)(6) [title V, § 533(b)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–549, provided that: ‘‘The Sec- retary of Health and Human Services shall consult with groups representing hospitals, physicians, and manu- facturers of new medical technologies before publishing the notice of proposed rulemaking required by section 1886(d)(5)(K)(i) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(K)(i)] (as added by paragraph (1)).’’ SPECIAL PAYMENTS TO MAINTAIN 6.5 PERCENT IME PAYMENT FOR FISCAL YEAR 2000 Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 111(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–329, provided that: ‘‘(1) ADDITIONAL PAYMENT.—In addition to payments made to each subsection (d) hospital (as defined in sec- tion 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) under section 1886(d)(5)(B) of such Act (42 U.S.C. 1395ww(d)(5)(B))) which receives payment for the direct costs of medical education for discharges oc- curring in fiscal year 2000, the Secretary of Health and Human Services shall make one or more payments to each such hospital in an amount which, as estimated by the Secretary, is equal in the aggregate to the dif- ference between the amount of payments to the hos- pital under such section for such discharges and the amount of payments that would have been paid under such section for such discharges if ‘c’ in clause (ii)(IV) of such section equalled 1.6 rather than 1.47. Additional payments made under this subsection shall be made ap- plying the same structure as applies to payments made under section 1886(d)(5)(B) of such Act. ‘‘(2) NO EFFECT ON OTHER PAYMENTS OR DETERMINA- TIONS.—In making such additional payments, the Sec- retary shall not change payments, determinations, or budget neutrality adjustments made for such period under section 1886(d) of such Act (42 U.S.C. 1395ww(d)).’’ DATA COLLECTION Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 112(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–330, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall require any subsection (d) hos- pital (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))) to submit to the Secretary, in the cost reports submitted to the Sec- retary by such hospital for discharges occurring during a fiscal year, data on the costs incurred by the hospital for providing inpatient and outpatient hospital services for which the hospital is not compensated, including non-medicare bad debt, charity care, and charges for medicaid and indigent care. ‘‘(2) EFFECTIVE DATE.—The Secretary shall require the submission of the data described in paragraph (1) in cost reports for cost reporting periods beginning on or after October 1, 2001.’’ PER DISCHARGE PROSPECTIVE PAYMENT SYSTEM FOR LONG-TERM CARE HOSPITALS Pub. L. 106–554, § 1(a)(6) [title III, § 307(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–496, provided that: ‘‘The amendments made by subsection (a) [amending this section] and by section 122 of BBRA [Pub. L. 106–113, § 1000(a)(6) [title I, § 122], amending this section] (113 Stat. 1501A–331) shall not be taken into account in the development and implementation of the prospective payment system under section 123 of BBRA [Pub. L. 106–113, § 1000(a)(6) [title I, § 123], set out as a note below] (113 Stat. 1501A–331).’’ Pub. L. 106–554, § 1(a)(6) [title III, § 307(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–496, provided that: ‘‘(1) MODIFICATION OF REQUIREMENT.—In developing the prospective payment system for payment for inpa- tient hospital services provided in long-term care hos- pitals described in section 1886(d)(1)(B)(iv) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv)) under the medicare program under title XVIII of such Act [42 U.S.C. 1395 et seq.] required under section 123 of BBRA [Pub. L. 106–113, § 1000(a)(6) [title I, § 123], set out as a note below], the Secretary of Health and Human Serv- ices shall examine the feasibility and the impact of basing payment under such a system on the use of ex- isting (or refined) hospital diagnosis-related groups (DRGs) that have been modified to account for dif- ferent resource use of long-term care hospital patients as well as the use of the most recently available hos- pital discharge data. The Secretary shall examine and may provide for appropriate adjustments to the long- term hospital payment system, including adjustments to DRG weights, area wage adjustments, geographic re- classification, outliers, updates, and a disproportionate share adjustment consistent with section 1886(d)(5)(F) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(F)). ‘‘(2) DEFAULT IMPLEMENTATION OF SYSTEM BASED ON EXISTING DRG METHODOLOGY.—If the Secretary is unable to implement the prospective payment system under section 123 of the BBRA by October 1, 2002, the Sec- retary shall implement a prospective payment system for such hospitals that bases payment under such a sys- tem using existing hospital diagnosis-related groups (DRGs), modified where feasible to account for resource use of long-term care hospital patients using the most recently available hospital discharge data for such services furnished on or after that date.’’ Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 123], Nov. 29, 1999, 113 Stat. 1536, 1501A–331, provided that: ‘‘(a) DEVELOPMENT OF SYSTEM.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall develop a per discharge pro- spective payment system for payment for inpatient hospital services of long-term care hospitals de- Page 3919 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww scribed in section 1886(d)(1)(B)(iv) of the Social Secu- rity Act (42 U.S.C. 1395ww(d)(1)(B)(iv)) under the medicare program. Such system shall include an ade- quate patient classification system that is based on diagnosis-related groups (DRGs) and that reflects the differences in patient resource use and costs, and shall maintain budget neutrality. ‘‘(2) COLLECTION OF DATA AND EVALUATION.—In de- veloping the system described in paragraph (1), the Secretary may require such long-term care hospitals to submit such information to the Secretary as the Secretary may require to develop the system. ‘‘(b) REPORT.—Not later than October 1, 2001, the Sec- retary shall submit to the appropriate committees of Congress a report that includes a description of the sys- tem developed under subsection (a)(1). ‘‘(c) IMPLEMENTATION OF PROSPECTIVE PAYMENT SYS- TEM.—Notwithstanding section 1886(b)(3) of the Social Security Act (42 U.S.C. 1395ww(b)(3)), the Secretary shall provide, for cost reporting periods beginning on or after October 1, 2002, for payments for inpatient hos- pital services furnished by long-term care hospitals under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) in accordance with the system described in subsection (a).’’ PER DIEM PROSPECTIVE PAYMENT SYSTEM FOR PSYCHIATRIC HOSPITALS Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 124], Nov. 29, 1999, 113 Stat. 1536, 1501A–332, provided that: ‘‘(a) DEVELOPMENT OF SYSTEM.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall develop a per diem prospective payment system for payment for inpatient hospital services of psychiatric hospitals and units (as defined in paragraph (3)) under the medicare program. Such system shall include an adequate patient classifica- tion system that reflects the differences in patient resource use and costs among such hospitals and shall maintain budget neutrality. ‘‘(2) COLLECTION OF DATA AND EVALUATION.—In de- veloping the system described in paragraph (1), the Secretary may require such psychiatric hospitals and units to submit such information to the Secretary as the Secretary may require to develop the system. ‘‘(3) DEFINITION.—In this section, the term ‘psy- chiatric hospitals and units’ means a psychiatric hos- pital described in clause (i) of section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) and psychiatric units described in the matter fol- lowing clause (v) of such section. ‘‘(b) REPORT.—Not later than October 1, 2001, the Sec- retary shall submit to the appropriate committees of Congress a report that includes a description of the sys- tem developed under subsection (a)(1). ‘‘(c) IMPLEMENTATION OF PROSPECTIVE PAYMENT SYS- TEM.—Notwithstanding section 1886(b)(3) of the Social Security Act (42 U.S.C. 1395ww(b)(3)), the Secretary shall provide, for cost reporting periods beginning on or after October 1, 2002, for payments for inpatient hos- pital services furnished by psychiatric hospitals and units under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) in accordance with the prospective payment system established by the Secretary under this section in a budget neutral manner.’’ STUDY ON IMPACT OF IMPLEMENTATION OF PROSPECTIVE PAYMENT SYSTEM Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 125(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–333, provided that: ‘‘(1) STUDY.—The Secretary of Health and Human Services shall conduct a study of the impact on utiliza- tion and beneficiary access to services of the imple- mentation of the medicare prospective payment system for inpatient hospital services or rehabilitation facili- ties under section 1886(j) of the Social Security Act (42 U.S.C. 1395ww(j)). ‘‘(2) REPORT.—Not later than 3 years after the date such system is first implemented, the Secretary shall submit to Congress a report on such study.’’ MEDPAC STUDY ON MEDICARE PAYMENT FOR NON- PHYSICIAN HEALTH PROFESSIONAL CLINICAL TRAINING IN HOSPITALS Pub. L. 106–113, div. B, § 1000(a)(6) [title I, § 141], Nov. 29, 1999, 113 Stat. 1536, 1501A–334, provided that: ‘‘(a) IN GENERAL.—The Medicare Payment Advisory Commission shall conduct a study of medicare payment policy with respect to professional clinical training of different classes of nonphysician health care profes- sionals (such as nurses, nurse practitioners, allied health professionals, physician assistants, and psy- chologists) and the basis for any differences in treat- ment among such classes. ‘‘(b) REPORT.—Not later than 18 months after the date of the enactment of this Act [Nov. 29, 1999], the Com- mission shall submit a report to Congress on the study conducted under subsection (a).’’ NOT COUNTING AGAINST NUMERICAL LIMITATION CER- TAIN INTERNS AND RESIDENTS TRANSFERRED FROM A VA RESIDENCY PROGRAM THAT LOSES ACCREDITATION Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 407(d)], Nov. 29, 1999, 113 Stat. 1536, 1501A–374, provided that: ‘‘(1) IN GENERAL.—Any applicable resident described in paragraph (2) shall not be taken into account in ap- plying any limitation regarding the number of resi- dents or interns for which payment may be made under section 1886 of the Social Security Act (42 U.S.C. 1395ww). ‘‘(2) APPLICABLE RESIDENT DESCRIBED.—An applicable resident described in this paragraph is a resident or in- tern who— ‘‘(A) participated in graduate medical education at a facility of the Department of Veterans Affairs; ‘‘(B) was subsequently transferred on or after Janu- ary 1, 1997, and before July 31, 1998, to a hospital that was not a Department of Veterans Affairs facility; and ‘‘(C) was transferred because the approved medical residency program in which the resident or intern participated would lose accreditation by the Accredi- tation Council on Graduate Medical Education if such program continued to train residents at the Depart- ment of Veterans Affairs facility. ‘‘(3) EFFECTIVE DATE.— ‘‘(A) IN GENERAL.—Paragraph (1) applies as if in- cluded in the enactment of BBA [the Balanced Budget Act of 1997, Pub. L. 105–33]. ‘‘(B) RETROACTIVE PAYMENTS.—If the Secretary of Health and Human Services determines that a hos- pital operating an approved medical residency pro- gram is owed payments as a result of enactment of this subsection, the Secretary shall make such pay- ments not later than 60 days after the date of the en- actment of this Act [Nov. 29, 1999].’’ GAO STUDY ON GEOGRAPHIC RECLASSIFICATION Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 410], Nov. 29, 1999, 113 Stat. 1536, 1501A–376, provided that: ‘‘(a) IN GENERAL.—The Comptroller General of the United States shall conduct a study of the current laws and regulations for geographic reclassification of hos- pitals to determine whether such reclassification is ap- propriate for purposes of applying wage indices under the medicare program and whether such reclassifica- tion results in more accurate payments for all hos- pitals. Such study shall examine data on the number of hospitals that are reclassified and their reclassified status in determining payments under the medicare program. The study shall evaluate— ‘‘(1) the magnitude of the effect of geographic re- classification on rural hospitals that are not reclassi- fied; ‘‘(2) whether the current thresholds used in geo- graphic reclassification reclassify hospitals to the ap- propriate labor markets; Page 3920 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(3) the effect of eliminating geographic reclassi- fication through use of the occupational mix data; ‘‘(4) the group reclassification policy; ‘‘(5) changes in the number of reclassifications and the compositions of the groups; ‘‘(6) the effect of State-specific budget neutrality compared to national budget neutrality; and ‘‘(7) whether there are sufficient controls over the intermediary evaluation of the wage data reported by hospitals. ‘‘(b) REPORT.—Not later than 18 months after the date of the enactment of this Act [Nov. 29, 1999], the Comp- troller General of the United States shall submit to Congress a report on the study conducted under sub- section (a).’’ CONTINUING TREATMENT OF PREVIOUSLY DESIGNATED CENTERS Pub. L. 105–33, title IV, § 4202(b), Aug. 5, 1997, 111 Stat. 375, provided that: ‘‘(1) IN GENERAL.—Any hospital classified as a rural referral center by the Secretary of Health and Human Services under section 1886(d)(5)(C) of the Social Secu- rity Act [42 U.S.C. 1395ww(d)(5)(C)] for fiscal year 1991 shall be classified as such a rural referral center for fis- cal year 1998 and each subsequent fiscal year. ‘‘(2) BUDGET NEUTRALITY.—The provisions of section 1886(d)(8)(D) of the Social Security Act [42 U.S.C. 1395ww(d)(8)(D)] shall apply to reclassifications made pursuant to paragraph (1) in the same manner as such provisions apply to a reclassification under section 1886(d)(10) of such Act [42 U.S.C. 1395ww(d)(10)].’’ HOSPITAL GEOGRAPHIC RECLASSIFICATION PERMITTED FOR PURPOSES OF DISPROPORTIONATE SHARE PAY- MENT ADJUSTMENTS Pub. L. 105–33, title IV, § 4203, Aug. 5, 1997, 111 Stat. 375, provided that: ‘‘(a) IN GENERAL.—For the period described in sub- section (c), the Medicare Geographic Classification Re- view Board shall consider the application under section 1886(d)(10)(C)(i) of the Social Security Act (42 U.S.C. 1395ww(d)(10)(C)(i)) of a hospital described in 1886(d)(1)(B) of such Act (42 U.S.C. 1395ww(d)(1)(B)) to change the hospital’s geographic classification for pur- poses of determining for a fiscal year eligibility for and amount of additional payment amounts under section 1886(d)(5)(F) of such Act (42 U.S.C. 1395ww(d)(5)(F)). ‘‘(b) APPLICABLE GUIDELINES.—The Medicare Geo- graphic Classification Review Board shall apply the guidelines established for reclassification under sub- clause (I) of section 1886(d)(10)(C)(i) of such Act to re- classification by reason of subsection (a) until the Sec- retary of Health and Human Services promulgates sep- arate guidelines for such reclassification. ‘‘(c) PERIOD DESCRIBED.—The period described in this subsection is the period beginning on the date of the enactment of this Act [Aug. 5, 1997] and ending 30 months after such date.’’ TEMPORARY RELIEF FOR CERTAIN NON-TEACHING, NON- DSH HOSPITALS Pub. L. 105–33, title IV, § 4401(b), Aug. 5, 1997, 111 Stat. 397, as amended by Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 321(d)], Nov. 29, 1999, 113 Stat. 1536, 1501A–366, provided that: ‘‘(1) IN GENERAL.—In the case of a hospital described in paragraph (2) for its cost reporting period— ‘‘(A) beginning in fiscal year 1998 the amount of payment made to the hospital under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] for dis- charges occurring during such fiscal year only shall be increased as though the applicable percentage in- crease (otherwise applicable to discharges occurring during fiscal year 1998 under section 1886(b)(3)(B)(i)(XIII) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B)(i)(XIII))) had been increased by 0.5 percentage points; and ‘‘(B) beginning in fiscal year 1999 the amount of payment made to the hospital under section 1886(d) of the Social Security Act for discharges occurring dur- ing such fiscal year only shall be increased as though the applicable percentage increase (otherwise appli- cable to discharges occurring during fiscal year 1999 under section 1886(b)(3)(B)(i)(XIV) of the Social Secu- rity Act (42 U.S.C. 1395ww(b)(3)(B)(i)(XIV))) had been increased by 0.3 percentage points. Subparagraph (A) shall not apply in computing the in- crease under subparagraph (B) and neither subpara- graph shall affect payment for discharges for any hos- pital occurring during a fiscal year after fiscal year 1999. Payment increases under this subsection for dis- charges occurring during a fiscal year are subject to settlement after the close of the fiscal year. ‘‘(2) HOSPITALS COVERED.—A hospital described in this paragraph for a cost reporting period is a hospital— ‘‘(A) that is described in paragraph (3) for such pe- riod; ‘‘(B) that is located in a State in which the amount of the aggregate payments under section 1886(d) of such Act [42 U.S.C. 1395ww(d)] for hospitals located in the State and described in paragraph (3) for their cost reporting periods beginning during fiscal year 1995 is less than the aggregate allowable operating costs of inpatient hospital services (as defined in section 1886(a)(4) of such Act) for all such hospitals in such State with respect to such cost reporting periods; and ‘‘(C) with respect to which the payments under sec- tion 1886(d) of such Act (42 U.S.C. 1395ww(d)) for dis- charges occurring in the cost reporting period in- volved, as estimated by the Secretary, is less than the allowable operating costs of inpatient hospital services (as defined in section 1886(a)(4) of such Act (42 U.S.C. 1395ww(a)(4))[)] for such hospital for such period, as estimated by the Secretary. ‘‘(3) NON-TEACHING, NON-DSH HOSPITALS DESCRIBED.— A hospital described in this paragraph for a cost report- ing period is a subsection (d) hospital (as defined in sec- tion 1886(d)(1)(B) of such Act (42 U.S.C. 1395ww(d)(1)(B))) that— ‘‘(A) is not receiving any additional payment amount described in section 1886(d)(5)(F) of such Act (42 U.S.C. 1395ww(d)(5)(F)) for discharges occurring during the period; ‘‘(B) is not receiving any additional payment under section 1886(d)(5)(B) of such Act (42 U.S.C. 1395ww(d)(5)(B)) or a payment under section 1886(h) of such Act (42 U.S.C. 1395ww(h)) for discharges occur- ring during the period; and ‘‘(C) does not qualify for payment under section 1886(d)(5)(G) of such Act (42 U.S.C. 1395ww(d)(5)(G)) for the period.’’ FORMULA FOR ADDITIONAL PAYMENT AMOUNTS; REPORT Pub. L. 105–33, title IV, § 4403(b), (c), Aug. 5, 1997, 111 Stat. 399, provided that: ‘‘(b) REPORT ON NEW PAYMENT FORMULA.— ‘‘(1) REPORT.—Not later than 1 year after the date of the enactment of this Act [Aug. 5, 1997], the Sec- retary of Health and Human Services shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report that contains a formula for deter- mining additional payment amounts to hospitals under section 1886(d)(5)(F) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(F)). ‘‘(2) FACTORS IN DETERMINATION OF FORMULA.—In determining such formula the Secretary shall— ‘‘(A) establish a single threshold for costs in- curred by hospitals in serving low-income patients, and ‘‘(B) consider the costs described in paragraph (3). ‘‘(3) The costs described in this paragraph are as follows: ‘‘(A) The costs incurred by the hospital during a period (as determined by the Secretary) of fur- nishing hospital services to individuals who are en- titled to benefits under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] and who receive supplemental security income benefits Page 3921 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww under title XVI of such Act [42 U.S.C. 1381 et seq.] (excluding any supplementation of those benefits by a State under section 1616 of such Act (42 U.S.C. 1382e)). ‘‘(B) The costs incurred by the hospital during a period (as so determined) of furnishing hospital services to individuals who receive medical assist- ance under the State plan under title XIX of such Act [42 U.S.C. 1396 et seq.] and are not entitled to benefits under part A of title XVIII of such Act [42 U.S.C. 1395c et seq.] (including individuals enrolled in a managed care organization (as defined in sec- tion 1903(m)(1)(A) of such Act (42 U.S.C. 1396b(m)(1)(A)) or any other managed care plan under such title and individuals who receive med- ical assistance under such title pursuant to a waiv- er approved by the Secretary under section 1115 of such Act (42 U.S.C. 1315)). ‘‘(c) DATA COLLECTION.—In developing the formula de- scribed in subsection (b), the Secretary of Health and Human Services may require any subsection (d) hos- pital (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))) receiving addi- tional payments by reason of section 1886(d)(5)(F) of such Act (42 U.S.C. 1395ww(d)(5)(F)) to submit to the Secretary any information that the Secretary deter- mines is necessary to develop such formula.’’ GEOGRAPHIC RECLASSIFICATION FOR CERTAIN DISPROPORTIONATELY LARGE HOSPITALS Pub. L. 105–33, title IV, § 4409, Aug. 5, 1997, 111 Stat. 402, provided that: ‘‘(a) NEW GUIDELINES FOR RECLASSIFICATION.—Not- withstanding the guidelines published under section 1886(d)(10)(D)(i)(I) of the Social Security Act (42 U.S.C. 1395ww(d)(10)(D)(i)(I)), the Secretary of Health and Human Services shall publish and use alternative guidelines under which a hospital described in sub- section (b) qualifies for geographic reclassification under such section for a fiscal year beginning with fis- cal year 1998. ‘‘(b) HOSPITALS COVERED.—A hospital described in this subsection is a hospital that demonstrates that— ‘‘(1) the average hourly wage paid by the hospital is not less than 108 percent of the average hourly wage paid by all other hospitals located in the Metropoli- tan Statistical Area (or the New England County Metropolitan Area) in which the hospital is located; ‘‘(2) not less than 40 percent of the adjusted uninflated wages paid by all hospitals located in such Area is attributable to wages paid by the hospital; and ‘‘(3) the hospital submitted an application request- ing reclassification for purposes of wage index under section 1886(d)(10)(C) of such Act (42 U.S.C. 1395ww(d)(10)(C)) in each of fiscal years 1992 through 1997 and that such request was approved for each of such fiscal years.’’ FLOOR ON AREA WAGE INDEX Pub. L. 105–33, title IV, § 4410, Aug. 5, 1997, 111 Stat. 402, provided that: ‘‘(a) IN GENERAL.—For purposes of section 1886(d)(3)(E) of the Social Security Act (42 U.S.C. 1395ww(d)(3)(E)) for discharges occurring on or after Oc- tober 1, 1997, the area wage index applicable under such section to any hospital which is not located in a rural area (as defined in section 1886(d)(2)(D) of such Act (42 U.S.C. 1395ww(d)(2)(D))[)] may not be less than the area wage index applicable under such section to hospitals located in rural areas in the State in which the hos- pital is located. ‘‘(b) IMPLEMENTATION.—The Secretary of Health and Human Services shall adjust the area wage index re- ferred to in subsection (a) for hospitals not described in such subsection in a manner which assures that the ag- gregate payments made under section 1886(d) of the So- cial Security Act (42 U.S.C. 1395ww(d)) in a fiscal year for the operating costs of inpatient hospital services are not greater or less than those which would have been made in the year if this section did not apply. ‘‘(c) EXCLUSION OF CERTAIN WAGES.—In the case of a hospital that is owned by a municipality and that was reclassified as an urban hospital under section 1886(d)(10) of the Social Security Act [42 U.S.C. 1395ww(d)(10)] for fiscal year 1996, in calculating the hospital’s average hourly wage for purposes of geo- graphic reclassification under such section for fiscal year 1998, the Secretary of Health and Human Services shall exclude the general service wages and hours of personnel associated with a skilled nursing facility that is owned by the hospital of the same municipality and that is physically separated from the hospital to the extent that such wages and hours of such personnel are not shared with the hospital and are separately documented. A hospital that applied for and was denied reclassification as an urban hospital for fiscal year 1998, but that would have received reclassification had the exclusion required by this section been applied to it, shall be reclassified as an urban hospital for fiscal year 1998.’’ REPORT ON EFFECT OF AMENDMENTS BY PUB. L. 105–33, § 4415, ON PSYCHIATRIC HOSPITALS Pub. L. 105–33, title IV, § 4415(d), Aug. 5, 1997, 111 Stat. 407, provided that: ‘‘Not later than October 1, 1999, the Secretary of Health and Human Services shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report that describes the effect of the amend- ments to section 1886(b)(1) of the Social Security Act (42 U.S.C. 1395ww(b)(1)), made under this section, on psychiatric hospitals (as defined in section 1886(d)(1)(B)(i) of such Act (42 U.S.C. 1395ww(d)(1)(B)(i)) that have approved medical residency training pro- grams under title XVIII of such Act (42 U.S.C. 1395 et seq.)).’’ TREATMENT OF CERTAIN CANCER HOSPITALS; PAYMENT Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 152(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A–252, provided that: ‘‘(1) APPLICATION TO COST REPORTING PERIODS.—Any classification by reason of section 1886(d)(1)(B)(v)(III) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(B)(v)(III)] (as added by subsection (a)) shall apply to 12-month cost reporting periods begin- ning on or after July 1, 1999. ‘‘(2) BASE YEAR.—Notwithstanding the provisions of section 1886(b)(3)(E) of such Act (42 U.S.C. 1395ww(b)(3)(E)) or other provisions to the contrary, the base cost reporting period for purposes of determining the target amount for any hospital classified by reason of section 1886(d)(1)(B)(v)(III) of such Act [42 U.S.C. 1395ww(d)(1)(B)(v)(III)] (as added by subsection (a)) shall be the 12-month cost reporting period beginning on July 1, 1995. ‘‘(3) DEADLINE FOR PAYMENTS.—Any payments owed to a hospital by reason of this subsection shall be made expeditiously, but in no event later than 1 year after the date of the enactment of this Act [Dec. 21, 2000].’’ Pub. L. 105–33, title IV, § 4418(b), Aug. 5, 1997, 111 Stat. 409, provided that: ‘‘(1) APPLICATION TO COST REPORTING PERIODS.—Any classification by reason of section 1886(d)(1)(B)(v)(II) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)(v)(II)) (as added by subsection (a)) shall apply to all cost reporting periods beginning on or after January 1, 1991. ‘‘(2) BASE YEAR.—Notwithstanding the provisions of section 1886(b)(3)(E) of such Act (42 U.S.C. 1395ww(b)(3)(E)) or other provisions to the contrary, the base cost reporting period for purposes of determining the target amount for any hospital classified by reason of section 1886(d)(1)(B)(v)(II) of such Act shall be ei- ther— ‘‘(A) the hospital’s cost reporting period beginning during fiscal year 1990, or ‘‘(B) pursuant to an election under 1886(b)(3)(G) of such Act (42 U.S.C. 1395ww(b)(3)(G)), as added in sec- Page 3922 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww tion 4413(b), the period provided for under such sec- tion. ‘‘(3) DEADLINE FOR PAYMENTS.—Any payments owed to a hospital by reason of this subsection shall be made expeditiously, but in no event later than 1 year after the date of the enactment of this Act [Aug. 5, 1997].’’ REPORT ON EXCEPTIONS Pub. L. 105–33, title IV, § 4419(b), Aug. 5, 1997, 111 Stat. 409, provided that: ‘‘The Secretary of Health and Human Services shall publish annually in the Federal Register a report describing the total amount of pay- ments made to hospitals by reason of section 1886(b)(4) of the Social Security Act (42 U.S.C. 1395ww(b)(4)), as amended by subsection (a), ending during the previous fiscal year.’’ DEVELOPMENT OF PROPOSAL ON PAYMENTS FOR LONG- TERM CARE HOSPITALS Pub. L. 105–33, title IV, § 4422, Aug. 5, 1997, 111 Stat. 414, provided that: ‘‘(a) IN GENERAL.— ‘‘(1) LEGISLATIVE PROPOSAL.—The Secretary of Health and Human Services shall develop a legisla- tive proposal for establishing a case-mix adjusted prospective payment system for payment of long- term care hospitals described in section 1886(d)(1)(B)(iv) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv)) under the medicare program. Such system shall include an adequate patient classi- fication system that reflects the differences in pa- tient resource use and costs among such hospitals. ‘‘(2) COLLECTION OF DATA AND EVALUATION.—In de- veloping the legislative proposal described in para- graph (1), the Secretary— ‘‘(A) may require such long-term care hospitals to submit such information to the Secretary as the Secretary may require to develop the proposal; and ‘‘(B) shall consider several payment methodolo- gies, including the feasibility of expanding the cur- rent diagnosis-related groups and prospective pay- ment system established under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] to apply to payments under the medicare program to long-term care hospitals. ‘‘(b) REPORT.—Not later than October 1, 1999, the Sec- retary shall submit to the appropriate committees of Congress a report that includes the legislative proposal developed under subsection (a)(1).’’ DISSEMINATION OF INFORMATION ON HIGH PER DIS- CHARGE RELATIVE VALUES FOR IN-HOSPITAL PHYSI- CIANS’ SERVICES Pub. L. 105–33, title IV, § 4506, Aug. 5, 1997, 111 Stat. 437, provided that: ‘‘(a) DETERMINATION AND NOTICE CONCERNING HOS- PITAL-SPECIFIC PER DISCHARGE RELATIVE VALUES.— ‘‘(1) IN GENERAL.—For 1999 and 2001 the Secretary of Health and Human Services shall determine for each hospital— ‘‘(A) the hospital-specific per discharge relative value under subsection (b); and ‘‘(B) whether the hospital-specific relative value is projected to be excessive (as determined based on such value represented as a percentage of the me- dian of hospital-specific per discharge relative val- ues determined under subsection (b)). ‘‘(2) NOTICE TO SUBSET OF MEDICAL STAFFS; EVALUA- TION OF RESPONSES.—The Secretary shall notify the medical executive committee of a subset of the hos- pitals identified under paragraph (1)(B) as having an excessive hospital-specific relative value, of the de- terminations made with respect to the medical staff under paragraph (1). The Secretary shall evaluate the responses of the hospitals so notified with the re- sponses of other hospitals so identified that were not so notified. ‘‘(b) DETERMINATION OF HOSPITAL-SPECIFIC PER DIS- CHARGE RELATIVE VALUES.— ‘‘(1) IN GENERAL.—For purposes of this section, the hospital-specific per discharge relative value for the medical staff of a hospital (other than a teaching hos- pital) for a year shall be equal to the average per dis- charge relative value (as determined under section 1848(c)(2) of the Social Security Act (42 U.S.C. 1395w–4(c)(2))[)] for physicians’ services furnished to inpatients of the hospital by the hospital’s medical staff (excluding interns and residents) during the sec- ond year preceding that calendar year, adjusted for variations in case-mix among hospitals and dis- proportionate share status and teaching status among hospitals (as determined by the Secretary under paragraph (3)). ‘‘(2) SPECIAL RULE FOR TEACHING HOSPITALS.—The hospital-specific relative value projected for a teach- ing hospital in a year shall be equal to the sum of— ‘‘(A) the average per discharge relative value (as determined under section 1848(c)(2) of such Act [42 U.S.C. 1395w–4(c)(2)]) for physicians’ services fur- nished to inpatients of the hospital by the hos- pital’s medical staff (excluding interns and resi- dents) during the second year preceding that cal- endar year, and ‘‘(B) the equivalent per discharge relative value (as determined under such section) for physicians’ services furnished to inpatients of the hospital by interns and residents of the hospital during the sec- ond year preceding that calendar year, adjusted for variations in case-mix among hospitals, and in dis- proportionate share status and teaching status among hospitals (as determined by the Secretary under paragraph (3)). The Secretary shall determine the equivalent rel- ative value unit per discharge for interns and resi- dents based on the best available data and may make such adjustment in the aggregate. ‘‘(3) ADJUSTMENT FOR TEACHING AND DISPROPOR- TIONATE SHARE HOSPITALS.—The Secretary shall ad- just the allowable per discharge relative values oth- erwise determined under this subsection to take into account the needs of teaching hospitals and hospitals receiving additional payments under subparagraphs (F) and (G) of section 1886(d)(5) of the Social Security Act (42 U.S.C. 1395ww(d)(5)). The adjustment for teaching status or disproportionate share shall not be less than zero. ‘‘(c) DEFINITIONS.—For purposes of this section: ‘‘(1) HOSPITAL.—The term ‘hospital’ means a sub- section (d) hospital as defined in section 1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)). ‘‘(2) MEDICAL STAFF.—An individual furnishing a physician’s service is considered to be on the medical staff of a hospital— ‘‘(A) if (in accordance with requirements for hos- pitals established by the Joint Commission on Ac- creditation of Health Organizations)— ‘‘(i) the individual is subject to bylaws, rules, and regulations established by the hospital to provide a framework for the self-governance of medical staff activities, ‘‘(ii) subject to the bylaws, rules, and regula- tions, the individual has clinical privileges grant- ed by the hospital’s governing body, and ‘‘(iii) under the clinical privileges, the indi- vidual may provide physicians’ services independ- ently within the scope of the individual’s clinical privileges, or ‘‘(B) if the physician provides at least one service to an individual entitled to benefits under this title in that hospital. ‘‘(3) PHYSICIANS’ SERVICES.—The term ‘physicians’ services’ means the services described in section 1848(j)(3) of the Social Security Act (42 U.S.C. 1395w–4(j)(3)). ‘‘(4) RURAL AREA; URBAN AREA.—The terms ‘rural area’ and ‘urban area’ have the meaning given those terms under section 1886(d)(2)(D) of such Act (42 U.S.C. 1395ww(d)(2)(D)). ‘‘(5) SECRETARY.—The term ‘Secretary’ means the Secretary of Health and Human Services. Page 3923 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(6) TEACHING HOSPITAL.—The term ‘teaching hos- pital’ means a hospital which has a teaching program approved as specified in section 1861(b)(6) of the So- cial Security Act (42 U.S.C. 1395x(b)(6)).’’ INCENTIVE PAYMENTS UNDER PLANS FOR VOLUNTARY REDUCTION IN NUMBER OF RESIDENTS; RELATION TO DEMONSTRATION PROJECTS AND AUTHORITY; REGULA- TIONS Pub. L. 105–33, title IV, § 4626(b), (c), Aug. 5, 1997, 111 Stat. 483, provided that: ‘‘(b) RELATION TO DEMONSTRATION PROJECTS AND AU- THORITY.— ‘‘(1) Section 1886(h)(6) of the Social Security Act [42 U.S.C. 1395ww(h)(6)], added by subsection (a), other than subparagraph (F)(ii) thereof, shall not apply to any residency training program with respect to which a demonstration project described in paragraph (3) has been approved by the Health Care Financing Ad- ministration as of May 27, 1997. ‘‘(2) Effective May 27, 1997, the Secretary of Health and Human Services is not authorized to approve any demonstration project described in paragraph (3) for any residency training year beginning before July 1, 2006. ‘‘(3) A demonstration project described in this para- graph is a project that primarily provides for addi- tional payments under title XVIII of the Social Secu- rity Act [42 U.S.C. 1395 et seq.] in connection with a reduction in the number of residents in a medical residency training program. ‘‘(c) INTERIM, FINAL REGULATIONS.—In order to carry out the amendment made by subsection (a) in a timely manner, the Secretary of Health and Human Services may first promulgate regulations, that take effect on an interim basis, after notice and pending opportunity for public comment, by not later than 6 months after the date of the enactment of this Act [Aug. 5, 1997].’’ DEMONSTRATION PROJECT ON USE OF CONSORTIA Pub. L. 105–33, title IV, § 4628, Aug. 5, 1997, 111 Stat. 484, provided that: ‘‘(a) IN GENERAL.—The Secretary of Health and Human Services (in this section referred to as the ‘Sec- retary’) shall establish a demonstration project under which, instead of making payments to teaching hos- pitals pursuant to section 1886(h) of the Social Security Act [42 U.S.C. 1395ww(h)], the Secretary shall make payments under this section to each consortium that meets the requirements of subsection (b) and that ap- plies to be included under the project. ‘‘(b) QUALIFYING CONSORTIA.—For purposes of sub- section (a), a consortium meets the requirements of this subsection if the consortium is in compliance with the following: ‘‘(1) The consortium consists of a teaching hospital with one or more approved medical residency train- ing programs and one or more of the following enti- ties: ‘‘(A) A school of allopathic medicine or osteo- pathic medicine. ‘‘(B) Another teaching hospital, which may be a children’s hospital. ‘‘(C) A Federally qualified health center. ‘‘(D) A medical group practice. ‘‘(E) A managed care entity. ‘‘(F) An entity furnishing outpatient services. ‘‘(G) Such other entity as the Secretary deter- mines to be appropriate. ‘‘(2) The members of the consortium have agreed to participate in the programs of graduate medical edu- cation that are operated by the entities in the con- sortium. ‘‘(3) With respect to the receipt by the consortium of payments made pursuant to this section, the mem- bers of the consortium have agreed on a method for allocating the payments among the members. ‘‘(4) The consortium meets such additional require- ments as the Secretary may establish. ‘‘(c) AMOUNT AND SOURCE OF PAYMENT.—The total of payments to a qualifying consortium for a fiscal year pursuant to subsection (a) shall not exceed the amount that would have been paid under section 1886(h) or (k) of the Social Security Act [42 U.S.C. 1395ww(h), (k)] for the teaching hospital (or hospitals) in the consortium. Such payments shall be made in such proportion from each of the trust funds established under title XVIII of such Act [42 U.S.C. 1395 et seq.] as the Secretary speci- fies.’’ RECOMMENDATIONS ON LONG-TERM POLICIES REGARDING TEACHING HOSPITALS AND GRADUATE MEDICAL EDU- CATION Pub. L. 105–33, title IV, § 4629, Aug. 5, 1997, 111 Stat. 484, provided that: ‘‘(a) IN GENERAL.—The Medicare Payment Advisory Commission (established under section 1805 of the So- cial Security Act [42 U.S.C. 1395b–6] and in this section referred to as the ‘Commission’) shall examine and de- velop recommendations on whether and to what extent medicare payment policies and other Federal policies regarding teaching hospitals and graduate medical edu- cation should be changed. Such recommendations shall include recommendations regarding each of the fol- lowing: ‘‘(1) Possible methodologies for making payments for graduate medical education and the selection of entities to receive such payments. Matters consid- ered under this paragraph shall include— ‘‘(A) issues regarding children’s hospitals and ap- proved medical residency training programs in pe- diatrics, and ‘‘(B) whether and to what extent payments are being made (or should be made) for training in the nursing and other allied health professions. ‘‘(2) Federal policies regarding international med- ical graduates. ‘‘(3) The dependence of schools of medicine on serv- ice-generated income. ‘‘(4) Whether and to what extent the needs of the United States regarding the supply of physicians, in the aggregate and in different specialties, will change during the 10-year period beginning on October 1, 1997, and whether and to what extent any such changes will have significant financial effects on teaching hospitals. ‘‘(5) Methods for promoting an appropriate number, mix, and geographical distribution of health profes- sionals. ‘‘(b) CONSULTATION.—In conducting the study under subsection (a), the Commission shall consult with the Council on Graduate Medical Education and individuals with expertise in the area of graduate medical edu- cation, including— ‘‘(1) deans from allopathic and osteopathic schools of medicine; ‘‘(2) chief executive officers (or equivalent adminis- trative heads) from academic health centers, inte- grated health care systems, approved medical resi- dency training programs, and teaching hospitals that sponsor approved medical residency training pro- grams; ‘‘(3) chairs of departments or divisions from allopathic and osteopathic schools of medicine, schools of dentistry, and approved medical residency training programs in oral surgery; ‘‘(4) individuals with leadership experience from representative fields of non-physician health profes- sionals; ‘‘(5) individuals with substantial experience in the study of issues regarding the composition of the health care workforce of the United States; and ‘‘(6) individuals with expertise in health care pay- ment policies. ‘‘(c) REPORT.—Not later than 2 years after the date of the enactment of this Act [Aug. 5, 1997], the Commis- sion shall submit to the Congress a report providing its Page 3924 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww recommendations under this section and the reasons and justifications for such recommendations.’’ STUDY OF HOSPITAL OVERHEAD AND SUPERVISORY PHY- SICIAN COMPONENTS OF DIRECT MEDICAL EDUCATION COSTS Pub. L. 105–33, title IV, § 4630, Aug. 5, 1997, 111 Stat. 485, provided that: ‘‘(a) IN GENERAL.—The Secretary of Health and Human Services shall conduct a study with respect to— ‘‘(1) variations among hospitals in the hospital overhead and supervisory physician components of their direct medical education costs taken into ac- count under section 1886(h) of the Social Security Act [42 U.S.C. 1395ww(h)], and ‘‘(2) the reasons for such variations. ‘‘(b) REPORT.—Not later than 1 year after the date of the enactment of this Act [Aug. 5, 1997], the Secretary shall report the results of the study conducted under subsection (a) to the appropriate committees of Con- gress, including recommendations for legislation reduc- ing variations described in subsection (a) that the Sec- retary finds inappropriate.’’ DRG PROSPECTIVE PAYMENT RATE METHODOLOGY; TRANSITION RULE FOR FISCAL YEAR 1998 Pub. L. 105–33, title IV, § 4644(a)(2), Aug. 5, 1997, 111 Stat. 488, provided that: ‘‘With respect to the publica- tion in the Federal Register of the DRG prospective payment rate methodology under such section for fiscal year 1998, the term ‘60 days’ in section 801(a)(3)(A) and section 802(a) of title 5, United States Code, is deemed to be a reference to ‘30 days’.’’ HOSPITAL PAYMENT UPDATES; TRANSITION RULE FOR FISCAL YEAR 1998 Pub. L. 105–33, title IV, § 4644(b)(2), Aug. 5, 1997, 111 Stat. 488, provided that: ‘‘With respect to the publica- tion in the Federal Register of the appropriate change factor for inpatient hospital services for discharges in fiscal year 1998 under section 1886(e)(5)(B) (42 U.S.C. 1395ww(e)(5)(B)), the term ‘60 days’ in section 801(a)(3)(A) and section 802(a) of title 5, United States Code, is deemed to be a reference to ‘30 days’.’’ GEOGRAPHICAL RECLASSIFICATION; SPECIAL RULE FOR APPLICATIONS RECEIVED IN FISCAL YEAR 1997 Pub. L. 105–33, title IV, § 4644(c)(2), Aug. 5, 1997, 111 Stat. 488, provided that: ‘‘In the case of an application for a change in geographic classification under such section [42 U.S.C. 1395ww(d)(10)(C)(ii)] for fiscal year 1999, the Secretary of Health and Human Services shall shorten the deadlines under such section so as to per- mit completion of a final decision by the Secretary by June 15, 1998.’’ NO STANDARDIZED AMOUNT ADJUSTMENTS FOR FISCAL YEARS 1992 OR 1993 Pub. L. 103–66, title XIII, § 13501(b)(2), Aug. 10, 1993, 107 Stat. 574, provided that: ‘‘The Secretary of Health and Human Services shall not revise the fiscal year 1992 or fiscal year 1993 standardized amounts pursuant to sub- sections (d)(3)(B) and (d)(8)(D) of section 1886 of the So- cial Security Act [42 U.S.C. 1395ww(d)(3)(B), (d)(8)(D)] to account for the amendment made by paragraph (1) [amending this section].’’ EXTENSION OF REGIONAL REFERRAL CENTER CLASSI- FICATIONS THROUGH FISCAL YEAR 1994; RECLASSIFICA- TION Pub. L. 103–66, title XIII, § 13501(d), Aug. 10, 1993, 107 Stat. 575, provided that: ‘‘(1) EXTENSION OF CLASSIFICATION THROUGH FISCAL YEAR 1994.—Any hospital that is classified as a regional referral center under section 1886(d)(5)(C) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(C)] as of September 30, 1992, shall continue to be so classified for cost re- porting periods beginning during fiscal year 1993 or fis- cal year 1994, unless the area in which the hospital is located is redesignated as a Metropolitan Statistical Area by the Office of Management and Budget for such a fiscal year. ‘‘(2) PERMITTING HOSPITALS TO DECLINE RECLASSIFICA- TION.—If any hospital fails to qualify as a rural referral center under section 1886(d)(5)(C) of the Social Security Act as a result of a decision by the Medicare Geo- graphic Classification Review Board under section 1886(d)(10) of such Act to reclassify the hospital as being located in an urban area for fiscal year 1993 or fis- cal year 1994, the Secretary of Health and Human Serv- ices shall— ‘‘(A) notify such hospital of such failure to qualify, ‘‘(B) provide an opportunity for such hospital to de- cline such reclassification, and ‘‘(C) if the hospital— ‘‘(i) declines such reclassification, administer the Social Security Act [42 U.S.C. 301 et seq.] (other than section 1886(d)(8)(D)) for such fiscal year as if the decision by the Review Board had not occurred, or ‘‘(ii) fails to decline such reclassification, admin- ister the Social Security Act without regard to paragraph (1). ‘‘(3) REQUIRING LUMP-SUM RETROACTIVE PAYMENT FOR HOSPITALS LOSING CLASSIFICATION.— ‘‘(A) IN GENERAL.—In the case of a hospital de- scribed in paragraph (1), the Secretary of Health and Human Services shall make a lump-sum payment to the hospital equal to the difference between the ag- gregate payment made to the hospital under section 1886 of such Act (excluding outlier payments under subsection (d)(5)(A) of such section) during the period of applicability described in subparagraph (B) and the aggregate payment that would have been made to the hospital under such section if, during the period of applicability, the hospital was classified a regional referral center under section 1886(d)(5)(C) of such Act. ‘‘(B) PERIOD OF APPLICABILITY.—In subparagraph (A), the ‘period of applicability’ is the period that be- gins on October 1, 1992, and ends on the date of the enactment of this Act [Aug. 10, 1993].’’ HOSPITALS DECLINING URBAN AREA RECLASSIFICATIONS; RETROACTIVE PAYMENTS Pub. L. 103–66, title XIII, § 13501(e)(2), (3), Aug. 10, 1993, 107 Stat. 576, as amended by Pub. L. 105–33, title IV, § 4204(a)(3), Aug. 5, 1997, 111 Stat. 376; Pub. L. 106–113, div. B, § 1000(a)(6) [title IV, § 404(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A–372; Pub. L. 109–171, title V, § 5003(a)(2)(B), Feb. 8, 2006, 120 Stat. 32; Pub. L. 111–148, title III, § 3124(b)(2), Mar. 23, 2010, 124 Stat. 425; Pub. L. 112–240, title VI, § 606(b)(2), Jan. 2, 2013, 126 Stat. 2349; Pub. L. 113–67, div. B, title I, § 1106(b)(2), Dec. 26, 2013, 127 Stat. 1197; Pub. L. 113–93, title I, § 106(b)(2), Apr. 1, 2014, 128 Stat. 1042; Pub. L. 114–10, title II, § 205(b)(2), Apr. 16, 2015, 129 Stat. 145; Pub. L. 115–123, div. E, title II, § 50205(b)(2), Feb. 9, 2018, 132 Stat. 183; Pub. L. 117–180, div. D, title I, § 102(b)(2), Sept. 30, 2022, 136 Stat. 2135; Pub. L. 117–229, div. C, title I, § 102(b)(2), Dec. 16, 2022, 136 Stat. 2311; Pub. L. 117–328, div. FF, title IV, § 4102(b)(2), Dec. 29, 2022, 136 Stat. 5896; Pub. L. 118–42, div. G, title I, § 307(b)(2), Mar. 9, 2024, 138 Stat. 417; Pub. L. 118–158, div. C, title II, § 3202(b)(2), Dec. 21, 2024, 138 Stat. 1764, provided that: ‘‘(2) PERMITTING HOSPITALS TO DECLINE RECLASSIFICA- TION.—If any hospital fails to qualify as a medicare-de- pendent, small rural hospital under section 1886(d)(5)(G)(i) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(G)(i)] as a result of a decision by the Medi- care Geographic Classification Review Board under sec- tion 1886(d)(10) of such Act to reclassify the hospital as being located in an urban area for fiscal year 1993, fis- cal year 1994, fiscal year 1998, fiscal year 1999, fiscal year 2000 through fiscal year 2024, or the portion of fis- cal year 2025 beginning on October 1, 2024, and ending on March 31, 2025, the Secretary of Health and Human Services shall— ‘‘(A) notify such hospital of such failure to qualify, Page 3925 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(B) provide an opportunity for such hospital to de- cline such reclassification, and ‘‘(C) if the hospital declines such reclassification, administer the Social Security Act [42 U.S.C. 301 et seq.] (other than section 1886(d)(8)(D)) for such fiscal year as if the decision by the Review Board had not occurred. ‘‘(3) REQUIRING LUMP-SUM RETROACTIVE PAYMENT.— ‘‘(A) IN GENERAL.—In the case of a hospital treated as a medicare-dependent, small rural hospital under section 1886(d)(5)(G) of the Social Security Act, the Secretary of Health and Human Services shall make a lump-sum payment to the hospital equal to the dif- ference between the aggregate payment made to the hospital under section 1886 of such Act (excluding outlier payments under subsection (d)(5)(A) of such section) during the period of applicability described in subparagraph (B) and the aggregate payment that would have been made to the hospital under such sec- tion if, during the period of applicability, section 1886(d)(5)(G) of such Act had been applied as if the amendments made by paragraph (1) [amending this section] had been in effect. ‘‘(B) PERIOD OF APPLICABILITY.—In subparagraph (A), the ‘period of applicability’ is, with respect to a hospital, the period that begins on the first day of the hospital’s first 12-month cost reporting period that begins after April 1, 1992, and ends on the date of the enactment of this Act [Aug. 10, 1993].’’ ADJUSTMENT IN GME BASE-YEAR COSTS OF FEDERAL INSURANCE CONTRIBUTIONS ACT Pub. L. 103–66, title XIII, § 13563(d), Aug. 10, 1993, 107 Stat. 606, provided that: ‘‘(1) IN GENERAL.—In determining the amount of pay- ment to be made under section 1886(h) of the Social Se- curity Act [42 U.S.C. 1395ww(h)] in the case of a hos- pital described in paragraph (2) for cost reporting peri- ods beginning on or after October 1, 1992, the Secretary of Health and Human Services shall redetermine the approved FTE resident amount to reflect the amount that would have been paid the hospital if, during the hospital’s base cost reporting period, the hospital had been liable for FICA taxes or for contributions to the retirement system of a State, a political subdivision of a State, or an instrumentality of such a State or polit- ical subdivision with respect to interns and residents in its medical residency training program. ‘‘(2) HOSPITALS AFFECTED.—A hospital described in this paragraph is a hospital that did not pay FICA taxes with respect to interns and residents in its med- ical residency training program during the hospital’s base cost reporting period, but is required to pay FICA taxes or make contributions to a retirement system de- scribed in paragraph (1) with respect to such interns and residents because of the amendments made by sec- tion 11332(b) of OBRA–1990 [Pub. L. 101–508, amending section 3121 of Title 26, Internal Revenue Code]. ‘‘(3) DEFINITIONS.—In this subsection: ‘‘(A) The ‘base cost reporting period’ for a hospital is the hospital’s cost reporting period that began dur- ing fiscal year 1984. ‘‘(B) The term ‘FICA taxes’ means, with respect to a hospital, the taxes under section 3111 of the Inter- nal Revenue Code of 1986 [26 U.S.C. 3111].’’ DETERMINATION OF AREA WAGE INDEX FOR DISCHARGES OCCURRING JANUARY 1, 1991 TO OCTOBER 1, 1993 Pub. L. 101–508, title IV, § 4002(d)(1), Nov. 5, 1990, 104 Stat. 1388–35, provided that: ‘‘(A) For purposes of section 1886(d)(3)(E) of the Social Security Act [42 U.S.C. 1395ww(d)(3)(E)] for discharges occurring on or after January 1, 1991, and before Octo- ber 1, 1993, the Secretary of Health and Human Services shall apply an area wage index determined using the survey of the 1988 wages and wage-related costs of hos- pitals in the United States conducted under such sec- tion. ‘‘(B) The Secretary shall apply the wage index de- scribed in subparagraph (A) without regard to a pre- vious survey of wages and wage-related costs.’’ STUDY AND REPORT ON RELATIONSHIP BETWEEN NON- WAGE-RELATED INPUT PRICES AND ADJUSTED AVER- AGE STANDARDIZED AMOUNTS Section 4002(e)(2) of Pub. L. 101–508 directed Secretary of Health and Human Services to collect sufficient data on the input prices associated with the non-wage-re- lated portion of the adjusted average standardized amounts established under subsec. (d)(3) of this section to identify extent to which variations in such amounts among hospitals located in different geographic areas are attributable to differences in such prices, and, not later than June 1, 1993, submit a report to Congress analyzing such data, with such report to include rec- ommendations regarding a methodology for adjusting such average standardized amounts to reflect such vari- ations. DEADLINE FOR SUBMISSION OF APPLICATIONS TO GEOGRAPHIC CLASSIFICATION REVIEW BOARD Pub. L. 101–508, title IV, § 4002(h)(2)(A), Nov. 5, 1990, 104 Stat. 1388–38, provided that: ‘‘For purposes of deter- mining whether a hospital requesting a change in geo- graphic classification for fiscal year 1992 under section 1886(d)(10) of the Social Security Act [42 U.S.C. 1395ww(d)(10)] has met the deadline described in sub- paragraph (C)(ii) of such section, an application sub- mitted under such subparagraph shall be considered to have been submitted by the first day of the preceding fiscal year if it is submitted within 60 days of the date of publication of the guidelines described in subpara- graph (D)(i) of such section.’’ PAYMENTS FOR MEDICAL EDUCATION COSTS Pub. L. 101–508, title IV, § 4004, Nov. 5, 1990, 104 Stat. 1388–39, provided that: ‘‘(a) HOSPITAL GRADUATE MEDICAL EDUCATION RECOUPMENT.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services may not, before October 1, 1991, re- coup payments from a hospital because of alleged overpayments to such hospital under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] due to a determination that the amount of pay- ments made for graduate medical education programs exceeds the amount allowable under section 1886(h) [42 U.S.C. 1395ww(h)]. ‘‘(2) CAP ON ANNUAL AMOUNT OF RECOUPMENT.—With respect to overpayments to a hospital described in paragraph (1), the Secretary may not recoup more than 25 percent of the amount of such overpayments from the hospital during a fiscal year. ‘‘(3) EFFECTIVE DATE.—Paragraphs (1) and (2) shall take effect October 1, 1990. ‘‘(b) UNIVERSITY HOSPITAL NURSING EDUCATION.— ‘‘(1) IN GENERAL.—The reasonable costs incurred by a hospital (or by an educational institution related to the hospital by common ownership or control) during a cost reporting period for clinical training (as de- fined by the Secretary) conducted on the premises of the hospital under approved nursing and allied health education programs that are not operated by the hos- pital shall be allowable as reasonable costs under part A of title XVIII of the Social Security Act and reimbursed under such part on a pass-through basis. ‘‘(2) CONDITIONS FOR REIMBURSEMENT.—The reason- able costs incurred by a hospital during a cost report- ing period shall be reimbursable pursuant to para- graph (1) only if— ‘‘(A) the hospital claimed and was reimbursed for such costs during the most recent cost reporting period that ended on or before October 1, 1989; ‘‘(B) the proportion of the hospital’s total allow- able costs that is attributable to the clinical train- ing costs of the approved program, and allowable under (b)(1) during the cost reporting period does Page 3926 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww not exceed the proportion of total allowable costs that were attributable to the clinical training costs during the cost reporting period described in sub- paragraph (A); ‘‘(C) the hospital receives a benefit for the sup- port it furnishes to such program through the pro- vision of clinical services by nursing or allied health students participating in such program; and ‘‘(D) the costs incurred by the hospital for such program do not exceed the costs that would be in- curred by the hospital if it operated the program itself. ‘‘(3) PROHIBITION AGAINST RECOUPMENT OF COSTS BY SECRETARY.— ‘‘(A) IN GENERAL.—The Secretary of Health and Human Services may not recoup payments from (or otherwise reduce or adjust payments under part A of title XVIII of the Social Security Act to) a hos- pital because of alleged overpayments to such hos- pital under such title due to a determination that costs which were reported by the hospital on its medicare cost reports for cost reporting periods be- ginning on or after October 1, 1983, and before Octo- ber 1, 1990, relating to approved nursing and allied health education programs did not meet the re- quirements for allowable nursing and allied health education costs (as developed by the Secretary pur- suant to section 1861(v) of such Act [42 U.S.C. 1395x(v)]). ‘‘(B) REFUND OF AMOUNTS RECOUPED.—If, prior to the date of the enactment of this Act [Nov. 5, 1990], the Secretary has recouped payments from (or oth- erwise reduced or adjusted payments under part A of title XVIII of the Social Security Act to) a hos- pital because of overpayments described in subpara- graph (A), the Secretary shall refund the amount recouped, reduced, or adjusted from the hospital. ‘‘(4) SPECIAL AUDIT TO DETERMINE COSTS.—In deter- mining the amount of costs incurred by, claimed by, and reimbursed to, a hospital for purposes of this sub- section, the Secretary shall conduct a special audit (or use such other appropriate mechanism) to ensure the accuracy of such past claims and payments. ‘‘(5) EFFECTIVE DATE.—Except as provided in para- graph (3), the provisions of this subsection shall apply to cost reporting periods beginning on or after Octo- ber 1, 1990.’’ Pub. L. 101–508, title IV, § 4159, Nov. 5, 1990, 104 Stat. 1388–90, provided that: ‘‘(a) HOSPITAL GRADUATE MEDICAL EDUCATION RECOUPMENT.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services may not, before October 1, 1991, re- coup payments from a hospital because of alleged overpayments to such hospital under part B of title XVIII of the Social Security Act [42 U.S.C. 1395j et seq.] due to a determination that the amount of pay- ments made for graduate medical education programs exceeds the amount allowable under section 1886(h) [42 U.S.C. 1395ww(h)]. ‘‘(2) CAP ON ANNUAL AMOUNT OF RECOUPMENT.—With respect to overpayments to a hospital described in paragraph (1), the Secretary may not recoup more than 25 percent of the amount of such overpayments from the hospital during a fiscal year. ‘‘(3) EFFECTIVE DATE.—Paragraphs (1) and (2) shall take effect October 1, 1990. ‘‘(b) UNIVERSITY HOSPITAL NURSING EDUCATION.— ‘‘(1) IN GENERAL.—The reasonable costs incurred by a hospital (or by an educational institution related to the hospital by common ownership or control) during a cost reporting period for clinical training (as de- fined by the Secretary) conducted on the premises of the hospital under approved nursing and allied health education programs that are not operated by the hos- pital shall be allowable as reasonable costs under part B of title XVIII of the Social Security Act and reimbursed under such part on a pass-through basis. ‘‘(2) CONDITIONS FOR REIMBURSEMENT.—The reason- able costs incurred by a hospital during a cost report- ing period shall be reimbursable pursuant to para- graph (1) only if— ‘‘(A) the hospital claimed and was reimbursed for such costs during the most recent cost reporting period that ended on or before October 1, 1989; ‘‘(B) the proportion of the hospital’s total allow- able costs that is attributable to the clinical train- ing costs of the approved program, and allowable under (b)(1) during the cost reporting period does not exceed the proportion of total allowable costs that were attributable to clinical training costs during the cost reporting period described in sub- paragraph (A); ‘‘(C) the hospital receives a benefit for the sup- port it furnishes to such program through the pro- vision of clinical services by nursing or allied health students participating in such program; and ‘‘(D) the costs incurred by the hospital for such program do not exceed the costs that would be in- curred by the hospital if it operated the program itself. ‘‘(3) PROHIBITION AGAINST RECOUPMENT OF COSTS BY SECRETARY.— ‘‘(A) IN GENERAL.—The Secretary of Health and Human Services may not recoup payments from (or otherwise reduce or adjust payments under part B of title XVIII of the Social Security Act to) a hos- pital because of alleged overpayments to such hos- pital under such title due to a determination that costs which were reported by the hospital on its medicare cost reports for cost reporting periods be- ginning on or after October 1, 1983, and before Octo- ber 1, 1990, relating to approved nursing and allied health education programs did not meet the re- quirements for allowable nursing and allied health education costs (as developed by the Secretary pur- suant to section 1861(v) of such Act [42 U.S.C. 1395x(v)]). ‘‘(B) REFUND OF AMOUNTS RECOUPED.—If, prior to the date of the enactment of this Act [Nov. 5, 1990], the Secretary has recouped payments from (or oth- erwise reduced or adjusted payments under part B of title XVIII of the Social Security Act to) a hos- pital because of overpayments described in subpara- graph (A), the Secretary shall refund the amount recouped, reduced, or adjusted from the hospital. ‘‘(4) SPECIAL AUDIT TO DETERMINE COSTS.—In deter- mining the amount of costs incurred by, claimed by, and reimbursed to, a hospital for purposes of this sub- section, the Secretary shall conduct a special audit (or use such other appropriate mechanism) to ensure the accuracy of such past claims and payments. ‘‘(5) EFFECTIVE DATE.—Except as provided in para- graph (3), the provisions of this subsection shall apply to cost reporting periods beginning on or after Octo- ber 1, 1990.’’ DEVELOPMENT OF NATIONAL PROSPECTIVE PAYMENT RATES FOR CURRENT NON-PPS HOSPITALS Pub. L. 101–508, title IV, § 4005(b), Nov. 5, 1990, 104 Stat. 1388–40, provided that: ‘‘(1) DEVELOPMENT OF PROPOSAL.—The Secretary of Health and Human Services shall develop a proposal to modify the current system under which hospitals that are not subsection (d) hospitals (as defined in section 1886(d)(1)(B) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(B)]) receive payment for the operating and capital-related costs of inpatient hospital services under part A [42 U.S.C. 1395c et seq.] of the medicare program or a proposal to replace such system with a system under which such payments would be made on the basis of nationally-determined average standard- ized amounts. In developing any proposal under this paragraph to replace the current system with a pro- spective payment system, the Secretary shall— ‘‘(A) take into consideration the need to provide for appropriate limits on increases in expenditures under the medicare program; ‘‘(B) provide for adjustments to prospectively deter- mined rates to account for changes in a hospital’s Page 3927 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww case mix, severity of illness of patients, volume of cases, and the development of new technologies and standards of medical practice; ‘‘(C) take into consideration the need to increase the payment otherwise made under such system in the case of services provided to patients whose length of stay or costs of treatment greatly exceed the length of stay or cost of treatment provided for under the applicable prospectively determined payment rate; ‘‘(D) take into consideration the need to adjust pay- ments under the system to take into account factors such as a disproportionate share of low-income pa- tients, costs related to graduate medical education programs, differences in wages and wage-related costs among hospitals located in various geographic areas, and other factors the Secretary considers appro- priate; and ‘‘(E) provide for the appropriate allocation of oper- ating and capital-related costs of hospitals not sub- ject to the new prospective payment system and dis- tinct units of such hospitals that would be paid under such system. ‘‘(2) REPORTS.—(A) By not later than April 1, 1992, the Secretary shall submit the proposal developed under paragraph (1) to the Committee on Finance of the Sen- ate and the Committee on Ways and Means of the House of Representatives. ‘‘(B) By not later than June 1, 1992, the Prospective Payment Assessment Commission shall submit an anal- ysis of and comments on the proposal developed under paragraph (1) to the Committee on Finance of the Sen- ate and the Committee on Ways and Means of the House of Representatives.’’ GUIDANCE TO INTERMEDIARIES AND HOSPITALS Pub. L. 101–508, title IV, § 4005(c)(3), Nov. 5, 1990, 104 Stat. 1388–42, provided that: ‘‘The Administrator of the Health Care Financing Administration shall provide guidance to agencies and organizations performing functions pursuant to section 1816 of the Social Secu- rity Act [42 U.S.C. 1395h] and to hospitals that are not subsection (d) hospitals (as defined in section 1886(d)(1)(B) of such Act [42 U.S.C. 1395ww(d)(1)(B)]) to assist such agencies, organizations, and hospitals in fil- ing complete applications with the Administrator for exemptions, exceptions, and adjustments under section 1886(b)(4)(A) of such Act.’’ FREEZE IN PAYMENTS UNDER PART A OF THIS SUBCHAPTER THROUGH DECEMBER 31, 1990 Pub. L. 101–508, title IV, § 4007, Nov. 5, 1990, 104 Stat. 1388–43, provided that: ‘‘(a) IN GENERAL.—Notwithstanding any other provi- sion of law, for purposes of determining the amount of payment for items or services under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] (including payments under section 1886 of such Act [42 U.S.C. 1395ww] attributable to or allocated under such part) during the period described in subsection (b): ‘‘(1) The market basket percentage increase (de- scribed in section 1886(b)(3)(B)(iii) of the Social Secu- rity Act) shall be deemed to be 0 for discharges occur- ring during such period. ‘‘(2) The percentage increase or decrease in the medical care expenditure category of the consumer price index applicable under section 1814(i)(2)(B) of such Act [42 U.S.C. 1395f(i)(2)(B)] shall be deemed to be 0. ‘‘(3) The area wage index applicable to a subsection (d) hospital under section 1886(d)(3)(E) of such Act shall be deemed to be the area wage index applicable to such hospital as of September 30, 1990. ‘‘(4) The percentage change in the consumer price index applicable under section 1886(h)(2)(D) of such Act shall be deemed to be 0. ‘‘(b) DESCRIPTION OF PERIOD.—The period referred to in subsection (a) is the period beginning on October 21, 1990, and ending on December 31, 1990.’’ REVIEW OF HOSPITAL REGULATIONS WITH RESPECT TO RURAL HOSPITALS Pub. L. 101–508, title IV, § 4008(l), Nov. 5, 1990, 104 Stat. 1388–53, provided that: ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall review the requirements applica- ble under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] to determine which requirements could be made less administratively and economically burdensome (without diminishing the quality of care) for hospitals defined in section 1886(d)(1)(B) of such Act [42 U.S.C. 1395ww(d)(1)(B)] that are located in a rural area (as defined in section 1886(d)(2)(D) of such Act). Such review shall specifically include standards related to staffing requirements. ‘‘(2) REPORT.—The Secretary of Health and Human Services shall report to Congress by April 1, 1992, on the results of the review conducted under subsection (a), and include conclusions on which regulations, if any, should be modified with respect to hospitals described in subsection (a).’’ PROHIBITION ON COST SAVINGS POLICIES BEFORE BEGINNING OF FISCAL YEAR Pub. L. 101–508, title IV, § 4207(b)(1), formerly § 4027(b)(1), Nov. 5, 1990, 104 Stat. 1388–118, as renum- bered and amended by Pub. L. 103–432, title I, § 160(d)(4), (5)(C), Oct. 31, 1994, 108 Stat. 4444, provided that: ‘‘Not- withstanding any other provision of law, the Secretary of Health and Human Services may not issue any pro- posed or final regulation, instruction, or other policy which is estimated by the Secretary to result in a net reduction in expenditures under title XVIII of the So- cial Security Act [42 U.S.C. 1395 et seq.] in a fiscal year (beginning with fiscal year 1991 and ending with fiscal year 1993, or, if later, the last fiscal year for which there is a maximum deficit amount specified under sec- tion 601(a)(1) of the Congressional Budget and Impound- ment Control Act of 1974 [2 U.S.C. 665(a)(1)]) of more than $50,000,000, except as follows: ‘‘(A) The Secretary may issue such a proposed regu- lation, instruction, or other policy with respect to the fiscal year before the May 15 preceding the begin- ning of the fiscal year. ‘‘(B) The Secretary may issue such a final regula- tion, instruction, or other policy with respect to the fiscal year on or after October 15 of the fiscal year. ‘‘(C) The Secretary may, at any time, issue such a proposed or final regulation, instruction, or other policy with respect to the fiscal year if required to implement specific provisions under statute.’’ PROHIBITION OF PAYMENT CYCLE CHANGES Pub. L. 101–508, title IV, § 4207(b)(2), formerly § 4027(b)(2), Nov. 5, 1990, 104 Stat. 1388–118, as renum- bered by Pub. L. 103–432, title I, § 160(d)(4), Oct. 31, 1994, 108 Stat. 4444, provided that: ‘‘Notwithstanding any other provision of law, the Secretary of Health and Human Services is not authorized to issue, after the date of the enactment of this Act [Nov. 5, 1990], any final regulation, instruction, or other policy change which is primarily intended to have the effect of slow- ing down or speeding up claims processing, or delaying payment of claims, under title XVIII of the Social Se- curity Act [42 U.S.C. 1395 et seq.].’’ EXTENSION OF AREA WAGE INDEX Pub. L. 101–403, title I, § 115(a), Oct. 1, 1990, 104 Stat. 870, provided that: ‘‘For purposes of determining the amount of payment made to a hospital under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] for the operating costs of inpatient hospital services for discharges occurring on or after October 1, 1990, and on or before October 20, 1990, the Secretary of Health and Human Services, in adjusting such amount under section 1886(d)(3)(E) of such Act [42 U.S.C. 1395ww(d)(3)(E)] to reflect the relative hospital wage level in the geographic area of the hospital compared to the national average hospital wage index, shall Page 3928 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww apply the area wage index applicable to such hospital as of September 30, 1990.’’ ADJUSTMENTS RESULTING FROM EXTENSIONS OF REGIONAL FLOOR ON STANDARDIZED AMOUNTS Pub. L. 101–403, title I, § 115(b)(2), Oct. 1, 1990, 104 Stat. 870, provided that: ‘‘The Secretary of Health and Human Services shall make any adjustments resulting from the amendment made by paragraph (1) [amending this section] in the amount of the payments made to hospitals under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] in a fiscal year for the oper- ating costs of inpatient hospital services in a manner that ensures that the aggregate payments under such section are not greater or less than those that would have been made in the year without such adjustments.’’ INDEXING OF FUTURE APPLICABLE PERCENTAGE INCREASES Pub. L. 101–239, title VI, § 6003(a)(3), Dec. 19, 1989, 103 Stat. 2140, provided that: ‘‘For discharges occurring on or after October 1, 1990, the applicable percentage in- crease (described in section 1886(b)(3)(B) of the Social Security Act [42 U.S.C. 1395ww(b)(3)(B)]) for discharges occurring during fiscal year 1990 is deemed to have been such percentage increase as amended by paragraph (1).’’ CONTINUATION OF SOLE COMMUNITY HOSPITAL DESIGNA- TION FOR CURRENT SOLE COMMUNITY HOSPITALS Pub. L. 101–239, title VI, § 6003(e)(3), Dec. 19, 1989, 103 Stat. 2144, provided that: ‘‘Any hospital classified as a sole community hospital under section 1886(d)(5)(C)(ii) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(C)(ii)] on the date of the enactment of this Act [Dec. 19, 1989] that will no longer be classified as a sole community hospital after such date as a result of the amendments made by paragraph (1) [amending this section] shall continue to be classified as a sole community hospital for purposes of section 1886(d)(5)(D) of such Act [42 U.S.C. 1395ww(d)(5)(D)].’’ ADDITIONAL PAYMENT RESULTING FROM CORRECTIONS OF ERRONEOUSLY DETERMINED WAGE INDEX Pub. L. 101–239, title VI, § 6003(h)(5), Dec. 19, 1989, 103 Stat. 2157, provided that: ‘‘(A) IN GENERAL.—If the Secretary of Health and Human Services (hereinafter referred to as the ‘Sec- retary’) discovers an error with respect to the deter- mination, adjustment, or computation of the area wage index described in section 1886(d)(3)(E) of the Social Se- curity Act [42 U.S.C. 1395ww(d)(3)(E)] and subsequently corrects such error, the Secretary shall make an addi- tional payment under title XVIII of such Act [42 U.S.C. 1395 et seq.] to a hospital affected by such error for in- patient hospital discharges occurring during the period when the erroneously determined, adjusted, or com- puted wage index was in effect. ‘‘(B) CONDITIONS FOR ADDITIONAL PAYMENT.—A hos- pital is eligible for an additional payment under sub- paragraph (A) only if— ‘‘(i) the error resulted from the submission of erro- neous data, except that a hospital is not eligible for such additional payment if it submitted such erro- neous data; ‘‘(ii) the error was made with respect to the survey of the 1984 wages and wage-related costs of hospitals in the United States conducted under section 1886(d)(3)(E) of the Social Security Act; and ‘‘(iii) the correction of the error resulted in an ad- justment to the area wage index of not less than 3 percentage points. ‘‘(C) PERIOD OF APPLICABILITY.—A hospital may not receive an additional payment under subparagraph (A) for discharges occurring after October 1, 1990.’’ LEGISLATIVE PROPOSAL ELIMINATING SEPARATE AVERAGE STANDARDIZED AMOUNTS Pub. L. 101–239, title VI, § 6003(i), Dec. 19, 1989, 103 Stat. 2158, directed Secretary of Health and Human Services to design a legislative proposal eliminating the system of determining separate average standard- ized amounts for subsection (d) hospitals classified as being located in large urban, other urban, or rural areas, prior to repeal by Pub. L. 105–362, title VI, § 601(b)(4), Nov. 10, 1998, 112 Stat. 3286. DETERMINATION AND RECOMMENDATIONS OF PAYMENTS FOR COSTS OF ADMINISTERING BLOOD CLOTTING FAC- TORS TO INDIVIDUALS WITH HEMOPHILIA Pub. L. 101–239, title VI, § 6011(b), (c), Dec. 19, 1989, 103 Stat. 2161, provided that: ‘‘(b) DETERMINING PAYMENT AMOUNT.—The Secretary of Health and Human Services shall determine the amount of payment made to hospitals under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] for the costs of administering blood clotting factors to individuals with hemophilia by multiplying a predetermined price per unit of blood clotting factor (determined in consultation with the Prospective Pay- ment Assessment Commission) by the number of units provided to the individual. ‘‘(c) RECOMMENDATIONS ON PAYMENTS.—The Prospec- tive Payment Assessment Commission and the Health Care Financing Administration shall develop rec- ommendations with respect to payments to hospitals under part A of title XVIII of the Social Security Act for the costs of administering blood clotting factors to individuals with hemophilia, and shall submit such rec- ommendations to Congress not later than 18 months after the date of enactment of this Act [Dec. 19, 1989].’’ PUBLICATION OF INSTRUCTIONS RELATING TO EXCEPTIONS AND ADJUSTMENTS IN TARGET AMOUNTS Pub. L. 101–239, title VI, § 6015(b), Dec. 19, 1989, 103 Stat. 2164, provided that: ‘‘By not later than 180 days after the date of enactment of this Act [Dec. 19, 1989], the Secretary of Health and Human Services shall pub- lish instructions specifying the application process to be used in providing exceptions and adjustments under section 1886(b)(4)(A) of the Social Security Act [42 U.S.C. 1395ww(b)(4)(A)].’’ DELAY IN RECOUPMENT OF CERTAIN NURSING AND ALLIED EDUCATION COSTS Pub. L. 101–239, title VI, § 6205(b), Dec. 19, 1989, 103 Stat. 2243, provided that: ‘‘(1) The Secretary of Health and Human Services (in this subsection referred to as the ‘Secretary’) shall not, before October 1, 1990, recoup from, or otherwise reduce or adjust payments under title XVIII of the Social Se- curity Act [42 U.S.C. 1395 et seq.] to, hospitals because of alleged overpayments to such hospitals under such title due to a determination that costs which were re- ported by a hospital on its medicare cost reports relat- ing to approved nursing and allied health education programs were allowable costs and are included in the definition of ‘operating costs of inpatient hospital serv- ices’ pursuant to section 1886(a)(4) of such Act [42 U.S.C. 1395ww(a)(4)], so that no pass-through of such costs was permitted under that section. ‘‘(2)(A) Before July 1, 1990, the Secretary shall issue regulations respecting payment of costs described in paragraph (1). ‘‘(B) In issuing such regulations— ‘‘(i) the Secretary shall allow a comment period of not less than 60 days, ‘‘(ii) the Secretary shall consult with the Prospec- tive Payment Assessment Commission, and ‘‘(iii) any final rule shall not be effective prior to October 1, 1990, or 30 days after publication of the final rule in the Federal Register, whichever is later. ‘‘(C) Such regulations shall specify— ‘‘(i) the relationship required between an approved nursing or allied health education program and a hos- pital for the program’s costs to be attributed to the hospital; ‘‘(ii) the types of costs related to nursing or allied health education programs that are allowable by medicare; Page 3929 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(iii) the distinction between costs of approved edu- cational activities as recognized under section 1886(a)(3) of the Social Security Act [42 U.S.C. 1395ww(a)(3)] and educational costs treated as oper- ating costs of inpatient hospital services; and ‘‘(iv) the treatment of other funding sources for the program.’’ INNER-CITY HOSPITAL TRIAGE DEMONSTRATION PROJECT Pub. L. 101–239, title VI, § 6217, Dec. 19, 1989, 103 Stat. 2253, as amended by Pub. L. 101–508, title IV, § 4207(k)(5), formerly § 4027(k)(5), Nov. 5, 1990, 104 Stat. 1388–125, re- numbered Pub. L. 103–432, title I, § 160(d)(4), Oct. 31, 1994, 108 Stat. 4444, provided that: ‘‘(a) ESTABLISHMENT.—The Secretary of Health and Human Services shall establish a demonstration project in a public hospital that is located in a large urban area and that has established a triage system, under which the Secretary shall make payments out of the Federal Hospital Insurance Trust Fund and the Federal Supplementary Medical Insurance Trust Fund (in such proportions as the Secretary determines to be appropriate in a year) for 3 years to reimburse the hos- pital for the reasonable costs of operating the system, including costs— ‘‘(1) to train hospital personnel to operate and par- ticipate in the system; and ‘‘(2) to provide services to patients who might oth- erwise be denied appropriate and prompt care. ‘‘(b) LIMITATIONS ON PAYMENT.—(1) The Secretary may not make payment under the demonstration project established under subsection (a) for costs that the Secretary determines are not reasonable. ‘‘(2) The amount of payment made under the dem- onstration project during a single year may not exceed $500,000.’’ TRANSITION ADJUSTMENTS TO TARGET AMOUNTS FOR INPATIENT HOSPITAL SERVICES Pub. L. 101–234, title I, § 101(c)(2)(B), Dec. 13, 1989, 103 Stat. 1980, provided that: ‘‘The Secretary of Health and Human Services shall make an appropriate adjustment to the target amount established under section 1886(b)(3)(A) of the Social Security Act [42 U.S.C. 1395ww(b)(3)(A)] in the case of inpatient hospital serv- ices provided to an inpatient whose stay began before January 1, 1990, in order to take into account the tar- get amount that would have applied but for the amend- ments made by this title [see Tables for classifica- tion].’’ ELECTION OF PERSONNEL POLICY FOR PROPAC EMPLOYEES Pub. L. 100–647, title VIII, § 8405, Nov. 10, 1988, 102 Stat. 3800, provided that: ‘‘With respect to employees of the Prospective Payment Assessment Commission hired before December 22, 1987, such employees shall have the option to elect within 60 days of the date of enactment of this Act [Nov. 10, 1988] to be covered under either the personnel policy in effect with respect to such employees before December 22, 1987, or under the employees coverage provided under the last sen- tence of section 1886(e)(6)(D) of the Social Security Act [42 U.S.C. 1395ww(e)(6)(D)].’’ ADJUSTMENTS IN PAYMENTS FOR INPATIENT HOSPITAL SERVICES Pub. L. 100–360, title I, § 104(c), July 1, 1988, 102 Stat. 688, as amended by Pub. L. 100–485, title VI, § 608(d)(3)(C)–(E), Oct. 13, 1988, 102 Stat. 2413; Pub. L. 101–234, title I, § 101(c)(1), (2)(A), Dec. 13, 1989, 103 Stat. 1980, provided that: ‘‘(1) PPS HOSPITALS.—In adjusting DRG prospective payment rates under section 1886(d) of the Social Secu- rity Act [42 U.S.C. 1395ww(d)], outlier cutoff points under section 1886(d)(5)(A) of such Act, and weighting factors under section 1886(d)(4) of such Act for dis- charges occurring on or after October 1, 1988, and before January 1, 1990, the Secretary of Health and Human Services shall, to the extent appropriate, take into con- sideration the reductions in payments to hospitals by (or on behalf of) medicare beneficiaries resulting from the elimination of a day limitation on medicare inpa- tient hospital services (under the amendments made by section 101 [amending section 1395d of this title]). ‘‘(2) PPS-EXEMPT HOSPITALS.—In adjusting target amounts under section 1886(b)(3) of the Social Security Act [42 U.S.C. 1395ww(b)(3)] for portions of cost report- ing periods occurring on or after January 1, 1989, and before January 1, 1990, the Secretary shall, on a hos- pital-specific basis, take into consideration the reduc- tions in payments to hospitals by (or on behalf of) medicare beneficiaries resulting from the elimination of a day limitation on medicare inpatient hospital serv- ices (under the amendments made by section 101 [amending section 1395d of this title]), without regard to whether such a hospital is paid on the basis de- scribed in subparagraph (A) or (B) of section 1886(b)(1) of such Act, without regard to whether any of such beneficiaries exhausted medicare inpatient hospital in- surance benefits before January 1, 1989.’’ [Amendment of section 104(c) of Pub. L. 100–360, set out above, by section 101(c)(1), (2)(A) of Pub. L. 101–234 effective as if included in enactment of Pub. L. 100–360, see section 101(d) of Pub. L. 101–234, set out as a note under section 1395c of this title]. PROPAC STUDY Pub. L. 100–360, title II, § 203(c)(2), July 1, 1988, 102 Stat. 723, directed Prospective Payment Assessment Commission to conduct a study, and make rec- ommendations to Congress and Secretary of Health and Human Services by not later than Mar. 1, 1991, con- cerning appropriate adjustment to payment amounts provided under subsec. (d) of this section for inpatient hospital services to account for reduced costs to hos- pitals resulting from amendments made by section 203 of Pub. L. 100–360, amending sections 1320c–3, 1395h, 1395k to 1395n, 1395w–2, 1395x, 1395z, and 1395aa of this title, prior to repeal by Pub. L. 101–234, title II, § 201(a), Dec. 13, 1989, 103 Stat. 1981. CLINIC HOSPITAL WAGE INDICES Pub. L. 100–203, title IV, § 4004(b), Dec. 22, 1987, 101 Stat. 1330–47, provided that: ‘‘In calculating the wage index under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] for purposes of making payment adjustments after September 30, 1988, as required under paragraphs (2)(H) and (3)(E) of such section, in the case of any institution which received the waiver specified in section 602(k) of the Social Security Amendments of 1983 [section 602(k) of Pub. L. 98–21, set out as a note under section 1395y of this title], the Secretary of Health and Human Services shall include wage costs paid to related organization employees directly in- volved in the delivery and administration of care pro- vided by the related organization to hospital inpa- tients. For purposes of the preceding sentence, the term ‘wage costs’ does not include costs of overhead or home office administrative salaries or any costs that are not incurred in the hospital’s Metropolitan Statis- tical Area.’’ LIMITATION ON AMOUNTS PAID IN FISCAL YEARS 1988 AND 1989 Pub. L. 100–203, title IV, § 4005(c)(2)(B), Dec. 22, 1987, 101 Stat. 1330–49, provided that: ‘‘The Secretary of Health and Human Services shall take appropriate steps to ensure that the total amount paid in a fiscal year under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] by reason of the amendment made by paragraph (1)(B) [amending this section] does not exceed $5,000,000 in the case of fiscal year 1988 and $10,000,000 for fiscal year 1989.’’ STUDY OF CRITERIA FOR CLASSIFICATION OF HOSPITALS AS RURAL REFERRAL CENTERS; REPORT Pub. L. 100–203, title IV, § 4005(d)(2), Dec. 22, 1987, 101 Stat. 1330–49, directed Secretary of Health and Human Page 3930 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww Services to provide for a study of the criteria used for the classification of hospitals as rural referral centers, and report to Congress, by not later than Mar. 1, 1989, on the study and on recommendations for the criteria that should be applied for the classification of hospitals as rural referral centers for cost reporting periods be- ginning on or after Oct. 1, 1989. GRANT PROGRAM FOR RURAL HEALTH CARE TRANSITION Pub. L. 100–203, title IV, § 4005(e), Dec. 22, 1987, 101 Stat. 1330–50, as amended by Pub. L. 101–239, title VI, § 6003(g)(1)(B)(i), Dec. 19, 1989, 103 Stat. 2150; Pub. L. 103–432, title I, § 103(a)(1), (b), (c), Oct. 31, 1994, 108 Stat. 4404, 4405, provided that: ‘‘(1) The Administrator of the Health Care Financing Administration, in consultation with the Assistant Secretary for Health (or a designee), shall establish a program of grants to assist eligible small rural hos- pitals and their communities in the planning and im- plementation of projects to modify the type and extent of services such hospitals provide in order to adjust for one or more of the following factors: ‘‘(A) Changes in clinical practice patterns. ‘‘(B) Changes in service populations. ‘‘(C) Declining demand for acute-care inpatient hos- pital capacity. ‘‘(D) Declining ability to provide appropriate staff- ing for inpatient hospitals. ‘‘(E) Increasing demand for ambulatory and emer- gency services. ‘‘(F) Increasing demand for appropriate integration of community health services. ‘‘(G) The need for adequate access (including appro- priate transportation) to emergency care and inpa- tient care in areas in which a significant number of underutilized hospital beds are being eliminated. ‘‘(H) The Administrator shall submit a final report on the program to the Congress not later than 180 days after all projects receiving a grant under the program are completed. Each demonstration project under this subsection shall demonstrate methods of strengthening the financial and managerial capability of the hospital involved to provide necessary services. Such methods may include programs of cooperation with other health care pro- viders, of diversification in services furnished (includ- ing the provision of home health services), of physician recruitment, and of improved management systems. Grants under this paragraph may be used to provide in- struction and consultation (and such other services as the Administrator determines appropriate) via tele- communications to physicians in such rural areas (within the meaning of section 1886(d)(2)(D) of the So- cial Security Act [42 U.S.C. 1395ww(d)(2)(D)]) as are des- ignated either class 1 or class 2 health manpower short- age areas under section 332(a)(1)(A) of the Public Health Service Act [42 U.S.C. 254e(a)(1)(A)]. ‘‘(2) For purposes of this subsection, the term ‘eligi- ble small rural hospital’ means any rural primary care hospital designated by the Secretary under section 1820(i)(2) of the Social Security Act [42 U.S.C. 1395i–4(i)(2)], or any non-Federal, short-term general acute care hospital that— ‘‘(A) is located in a rural area (as determined in ac- cordance with subsection (d)), ‘‘(B) has less than 100 beds, and ‘‘(C) is not for profit. ‘‘(3)(A) Any eligible small rural hospital that desires to modify the type or extent of health care services that it provides in order to adjust for one or more of the factors specified in paragraph (1) may submit an ap- plication to the Administrator and a copy of such ap- plication to the Governor of the State in which it is lo- cated. The application shall specify the nature of the project proposed by the hospital, the data and informa- tion on which the project is based, and a timetable (of not more than 24 months) for completion of the project. The application shall be submitted on or before a date specified by the Administrator and shall be in such form as the Administrator may require. ‘‘(B) The Governor shall transmit to the Adminis- trator, within a reasonable time after receiving a copy of an application pursuant to subparagraph (A), any comments with respect to the application that the Gov- ernor deems appropriate. ‘‘(C) The Governor of a State may designate an appro- priate State agency to receive and comment on appli- cations submitted under subparagraph (A). ‘‘(4) A hospital shall be considered to be located in a rural area for purposes of this subsection if it is treated as being located in a rural area for purposes of section 1886(d)(3)(D) of the Social Security Act [42 U.S.C. 1395ww(d)(3)(D)]. ‘‘(5) In determining which hospitals making applica- tion under paragraph (3) will receive grants under this subsection, the Administrator shall take into ac- count— ‘‘(A) any comments received under paragraph (3)(B) with respect to a proposed project; ‘‘(B) the effect that the project will have on— ‘‘(i) reducing expenditures from the Federal Hos- pital Insurance Trust Fund, ‘‘(ii) improving the access of medicare bene- ficiaries to health care of a reasonable quality; ‘‘(C) the extent to which the proposal of the hos- pital, using appropriate data, demonstrates an under- standing of— ‘‘(i) the primary market or service area of the hospital, and ‘‘(ii) the health care needs of the elderly and dis- abled that are not currently being met by providers in such market or area, and ‘‘(D) the degree of coordination that may be ex- pected between the proposed project and— ‘‘(i) other local or regional health care providers, and ‘‘(ii) community and government leaders, as evidenced by the availability of support for the project (in cash or in kind) and other relevant factors. ‘‘(6) A grant to a hospital under this subsection may not exceed $50,000 a year and may not exceed a term of 3 years. ‘‘(7)(A) Except as provided in subparagraphs (B) and (C), a hospital receiving a grant under this subsection may use the grant for any of expenses incurred in plan- ning and implementing the project with respect to which the grant is made. ‘‘(B) A hospital receiving a grant under this sub- section for a project may not use the grant to retire debt incurred with respect to any capital expenditure made prior to the date on which the project is initi- ated. ‘‘(C) Not more than one-third of any grant made under this subsection may be expended for capital-re- lated costs (as defined by the Secretary for purposes of section 1886(a)(4) of the Social Security Act [42 U.S.C. 1395ww(a)(4)]) of the project, except that this limitation shall not apply with respect to a grant used for the pur- poses described in subparagraph (D). ‘‘(D) A hospital may use a grant received under this subsection to develop a plan for converting itself to a rural primary care hospital (as described in section 1820 of the Social Security Act [42 U.S.C. 1395i–4]) or to de- velop a rural health network (as defined in section 1820(g) of such Act) in the State in which it is located if the State is receiving a grant under section 1820(a)(1). ‘‘(8)(A) A hospital receiving a grant under this sec- tion [amending this section and section 1395tt of this title and enacting provisions set out as notes under this section and section 1395tt of this title] shall fur- nish the Administrator with such information as the Administrator may require to evaluate the project with respect to which the grant is made and to ensure that the grant is expended for the purposes for which it was made. ‘‘(B) The Administrator shall report to the Congress at least once every 12 months on the program of grants established under this subsection. The report shall as- sess the functioning and status of the program, shall evaluate the progress made toward achieving the pur- Page 3931 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww poses of the program, and shall include any rec- ommendations the Secretary may deem appropriate with respect to the program. In preparing the report, the Secretary shall solicit and include the comments and recommendations of private and public entities with an interest in rural health care. ‘‘(C) The Administrator shall submit a final report on the program to the Congress not later than 180 days after all projects receiving a grant under the program are completed. ‘‘(9) For purposes of carrying out the program of grants under this subsection, there are authorized to be appropriated from the Federal Hospital Insurance Trust Fund $15,000,000 for fiscal year 1989, $25,000,000 for each of the fiscal years 1990, 1991, and 1992 and $30,000,000 for each of fiscal years 1993 through 1997.’’ [For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which item 6 on page 100 identifies a reporting provision which, as subsequently amended, is contained in section 4005(e)(8)(B) of Pub. L. 100–203, set out above), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.] [Pub. L. 103–432, title I, § 103(a)(2), Oct. 31, 1994, 108 Stat. 4405, provided that: ‘‘The amendment made by paragraph (1) [amending section 4005(e)(2) of Pub. L. 100–203, set out above] shall apply to grants made on or after October 1, 1994.’’] [Pub. L. 103–432, § 103(c), which directed amendment of section 4008(e)(8)(B) of Pub. L. 100–203, was executed by amending section 4005(e)(8)(B) of Pub. L. 100–203, set out above, to reflect the probable intent of Congress.] [Pub. L. 101–239, title VI, § 6003(g)(1)(B)(ii), Dec. 19, 1989, 103 Stat. 2151, provided that: ‘‘The amendments made by clause (i) [amending section 4005(e) of Pub. L. 100–203, set out above] shall apply with respect to appli- cations for grants under the Rural Health Care Transi- tion Grant Program described in section 4005(e) of the Omnibus Budget Reconciliation Act of 1987 [Pub. L. 100–203] submitted on or after October 1, 1989, except that the amendments made by subclauses (V) and (VII) of such clause shall take effect on the date of the en- actment of this Act [Dec. 19, 1989].’’] REPORTING HOSPITAL INFORMATION Pub. L. 100–203, title IV, § 4007, Dec. 22, 1987, 101 Stat. 1330–53, as amended by Pub. L. 100–360, title IV, § 411(b)(6), July 1, 1988, 102 Stat. 770; Pub. L. 100–485, title VI, § 608(d)(18)(D), Oct. 13, 1988, 102 Stat. 2419, pro- vided that: ‘‘(a) DEVELOPMENT OF DATA BASE.—The Secretary of Health and Human Services (in this section referred to as the ‘Secretary’) shall develop and place into effect not later than June 1, 1989, a data base of the operating costs of inpatient hospital services with respect to all hospitals under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.], which data base shall be updated at least once every quarter (and maintained for the 12- month period preceding any such update). The data base under this subsection may include data from pre- liminary cost reports (but the Secretary shall make available an updated analysis of the differences be- tween preliminary and settled cost reports). ‘‘(b) [Amended subsec. (f) of this section and enacted provisions set out as an Effective Date of 1987 Amend- ment note above.] ‘‘(c) DEMONSTRATION PROJECT.— ‘‘(1) The Secretary of Health and Human Services shall provide for a demonstration project to develop, and determine the costs and benefits of establishing a uniform system for the reporting by medicare par- ticipating hospitals of balance sheet and information described in paragraph (2). In conducting the project, the Secretary shall require hospitals in at least 2 States, one of which maintains a uniform hospital re- porting system, to report such information based on standard information established by the Secretary. ‘‘(2) The information described in this paragraph is as follows: ‘‘(A) Hospital discharges (classified by class of primary payer). ‘‘(B) Patient days (classified by class of primary payer). ‘‘(C) Licensed beds, staffed beds, and occupancy. ‘‘(D) Inpatient charges and revenues (classified by class of primary payer). ‘‘(E) Outpatient charges and revenues (classified by class of primary payer). ‘‘(F) Inpatient and outpatient hospital expenses (by cost-center classified for operating and capital). ‘‘(G) Reasonable costs. ‘‘(H) Other income. ‘‘(I) Bad debt and charity care. ‘‘(J) Capital acquisitions. ‘‘(K) Capital assets. The Secretary shall develop a definition of ‘out- patient visit’ for purposes of reporting hospital infor- mation. ‘‘(3) The Secretary shall develop the system under subsection (c) in a manner so as— ‘‘(A) to facilitate the submittal of the informa- tion in the report in an electronic form, and ‘‘(B) to be compatible with the needs of the medi- care prospective payment system. ‘‘(4) The Secretary shall prepare and submit, to the Prospective Payment Assessment Commission, the Comptroller General, the Committee on Ways and Means of the House of Representatives, and the Com- mittee on Finance of the Senate, by not later than 45 days after the end of each calendar quarter, data col- lected under the system. ‘‘(5) In paragraph (2): ‘‘(A) The term ‘bad debt and charity care’ has such meaning as the Secretary establishes. ‘‘(B) The term ‘class’ means, with respect to pay- ers at least, the programs under this title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.], a State plan approved under title XIX of such Act [42 U.S.C. 1396 et seq.], other third party-payers, and other persons (including self-paying individuals). ‘‘(6) The Secretary shall set aside at least a total of $3,000,000 for fiscal years 1988, 1989, and 1990 from ex- isting research funds or from operations funds to de- velop the format, according to paragraph (1) and for data collection and analysis, but total funds shall not exceed $15,000,000. ‘‘(7) The Comptroller General shall analyze the ade- quacy of the existing system for reporting of hospital information and the costs and benefits of data report- ing under the demonstration system and will rec- ommend improvements in hospital data collection and in analysis and display of data in support of pol- icy making. ‘‘(d) CONSULTATION.—The Secretary shall consult rep- resentatives of the hospital industry in carrying out the provisions of this section.’’ HOSPITAL OUTLIER PAYMENTS AND POLICY Pub. L. 100–203, title IV, § 4008(d), Dec. 22, 1987, 101 Stat. 1330–55, as amended by Pub. L. 100–360, title IV, § 411(b)(7), July 1, 1988, 102 Stat. 771, provided that: ‘‘(1) INCREASE IN OUTLIER PAYMENTS FOR BURN CENTER DRGS.— ‘‘(A) IN GENERAL.—For discharges classified in diag- nosis-related groups relating to burn cases and occur- ring on or after April 1, 1988, and before October 1, 1989, the marginal cost of care permitted by the Sec- retary of Health and Human Services under section 1886(d)(5)(A)(iii) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(A)(iii)] shall be 90 percent of the appro- priate per diem cost of care or 90 percent of the cost for cost outliers. ‘‘(B) BUDGET NEUTRALITY.—Subparagraph (A) shall be implemented in a manner that ensures that total payments under section 1886(d) of the Social Security Act are not increased or decreased by reason of the adjustments required by such subparagraph. ‘‘(2) LIMITATION ON CHANGES IN OUTLIER REGULA- TIONS.— Page 3932 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(A) IN GENERAL.—Notwithstanding any other pro- vision of law, except as required to implement spe- cific provisions required under statute, the Secretary of Health and Human Services is not authorized to issue in final form, after the date of the enactment of this Act [Dec. 22, 1987] and before September 1, 1988, any final regulation which changes the method of payment for outlier cases under section 1886(d)(5)(A) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(A)]. ‘‘(B) PROPAC REPORT.—The chairman of the Pro- spective Payment Assessment Commission shall re- port to the Congress and the Secretary of Health and Human Services, by not later than June 1, 1988, on the method of payment for outlier cases under such section and providing more adequate and appropriate payments with respect to burn outlier cases. ‘‘(3) REPORT ON OUTLIER PAYMENTS.—The Secretary of Health and Human Services shall include in the annual report submitted to the Congress pursuant to section 1875(b) of the Social Security Act [42 U.S.C. 1395ll(b)] a comparison with respect to hospitals located in an urban area and hospitals located in a rural area in the amount of reductions under section 1886(d)(3)(B) of the Social Security Act [42 U.S.C. 1395ww(d)(3)(B)] and ad- ditional payments under section 1886(d)(5)(A) of such Act.’’ PROPAC STUDIES AND REPORTS Pub. L. 100–203, title IV, § 4009(h), Dec. 22, 1987, 101 Stat. 1330–58, provided that: ‘‘(1) PROPAC REPORTS ON STUDY OF DRG RATES FOR HOS- PITALS IN RURAL AND URBAN AREAS.—The Prospective Payment Assessment Commission shall evaluate the study conducted by the Secretary of Health and Human Services pursuant to section 603(a)(2)(C)(i) of the Social Security Amendments of 1983 [section 603(a)(2)(C)(i) of Pub. L. 98–21, set out below] (relating to the feasibility, impact, and desirability of eliminating or phasing out separate urban and rural DRG prospective payment rates) and report its conclusions and recommendations to the Congress not later than March 1, 1988. ‘‘(2) PROPAC REPORT ON SEPARATE URBAN PAYMENT RATES.—The Prospective Payment Assessment Com- mission shall evaluate the desirability of maintaining separate DRG prospective payment rates for hospitals located in large urban areas (as defined in section 1886(d)(2)(D)) of the Social Security Act [42 U.S.C. 1395ww(d)(2)(D)]) and in other urban areas, and shall re- port to Congress on such evaluation not later than Jan- uary 1, 1989. ‘‘(3) REPORT ON ADJUSTMENT FOR NON-LABOR COSTS.— The Prospective Payment Assessment Commission shall perform an analysis to determine the feasibility and appropriateness of adjusting the non-wage-related portion of the adjusted average standardized amounts under section 1886(d)(3) of the Social Security Act [42 U.S.C. 1395ww(d)(3)] based on area differences in hos- pitals’ costs (other than wage-related costs) and input prices. The Commission shall report to the Congress on such analysis by not later than October 1, 1989.’’ SPECIAL RULE FOR URBAN AREAS IN NEW ENGLAND Pub. L. 100–203, title IV, § 4009(i), Dec. 22, 1987, 101 Stat. 1330–58, as amended by Pub. L. 100–360, title IV, § 411(b)(8)(C), July 1, 1988, 102 Stat. 772, provided that: ‘‘In the case of urban areas in New England, the Sec- retary of Health and Human Services shall apply the second sentence of section 1886(d)(2)(D) of the Social Security Act [42 U.S.C. 1395ww(d)(2)(D)], as amended by section 4002(b) of this subtitle, as though 970,000 were substituted for 1,000,000.’’ RURAL HEALTH MEDICAL EDUCATION DEMONSTRATION PROJECT Pub. L. 100–203, title IV, § 4038, Dec. 22, 1987, 101 Stat. 1330–80, as amended by Pub. L. 101–239, title VI, § 6216, Dec. 19, 1989, 103 Stat. 2253, provided that: ‘‘(a) IN GENERAL.—The Secretary of Health and Human Services (in this section referred to as the ‘Sec- retary’) shall enter into agreements with 10 sponsoring hospitals submitting applications under this subsection to conduct demonstration projects to assist resident physicians in developing field clinical experience in rural areas. ‘‘(b) NATURE OF PROJECT.—Under a demonstration project conducted under subsection (a), a sponsoring hospital entering into an agreement with the Secretary under such subsection shall enter into arrangements with a small rural hospital to provide to such rural hospital, for a period of one to three months of train- ing, physicians (in such number as the agreement under subsection (a) may provide) who have completed one year of residency training. ‘‘(c) SELECTION.—(1) In selecting from among applica- tions submitted under subsection (a), the Secretary shall ensure that four small rural hospitals located in different counties participate in the demonstration project and that— ‘‘(A) two of such hospitals are located in rural counties of more than 2,700 square miles (one of which is east of the Mississippi River and one of which is west of such river); and ‘‘(B) two of such hospitals are located in rural coun- ties with (as determined by the Secretary) a severe shortage of physicians (one of which is east of the Mississippi River and one of which is west of such river). ‘‘(2) The provisions of paragraph (1) shall not apply with respect to applications submitted as a result of amendments made by section 6216 of the Omnibus Budget Reconciliation Act of 1989 [Pub. L. 101–239, amending this note]. ‘‘(d) CLARIFICATION OF PAYMENT.—For purposes of sec- tion 1886 of the Social Security Act [42 U.S.C. 1395ww]— ‘‘(1) with respect to subsection (d)(5)(B) of such sec- tion, any resident physician participating in the project under subsection (a) for any part of a year shall be treated as if he or she were working at the appropriate sponsoring hospital with an agreement under subsection (a) on September 1 of such year (and shall not be treated as if working at the small rural hospital); and ‘‘(2) with respect to subsection (h) of such section, the payment amount permitted under such sub- section for a sponsoring hospital with an agreement under subsection (a) shall be increased (for the dura- tion of the project only) by an amount equal to the amount of any direct graduate medical education costs (as defined in paragraph (5) of such subsection (h)) incurred by such hospital in supervising the edu- cation and training activities under a project under subsection (a). ‘‘(e) DURATION OF PROJECT.—Each demonstration project under subsection (a) shall be commenced not later than six months after the date of enactment of this Act [Dec. 22, 1987] (or the date of the enactment of the Omnibus Budget Reconciliation Act of 1989 [Dec. 19, 1989], in the case of a project conducted as a result of the amendments made by section 6216 of such Act [Pub. L. 101–239, amending this note]) and shall be conducted for a period of three years. ‘‘(f) DEFINITION.—In this section, the term ‘sponsoring hospital’ means a hospital that receives payments under sections 1886(d)(5)(B) and 1886(h) of the Social Se- curity Act [42 U.S.C. 1395ww(d)(5)(B), (h)].’’ PROHIBITION ON POLICY BY SECRETARY OF HEALTH AND HUMAN SERVICES TO REDUCE EXPENDITURES IN FIS- CAL YEARS 1989, 1990, AND 1991 Pub. L. 100–203, title IV, § 4039(d), Dec. 22, 1987, 101 Stat. 1330–82, as amended by Pub. L. 100–360, title IV, § 426(e), July 1, 1988, 102 Stat. 814; Pub. L. 101–239, title VI, § 6207(b), Dec. 19, 1989, 103 Stat. 2245, provided that: ‘‘Notwithstanding any other provision of law, except as required to implement specific provisions required under statute, the Secretary of Health and Human Services is not authorized to issue in final form, after the date of the enactment of this Act [Dec. 22, 1987] and before October 15, 1990, any regulation, instruction, or Page 3933 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww other policy which is estimated by the Secretary to re- sult in a net reduction in expenditures under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] in fiscal year 1989 or in fiscal year 1990 or in fiscal year 1991 of more than $50,000,000.’’ TEMPORARY EXTENSION OF PAYMENT POLICIES FOR INPATIENT HOSPITAL SERVICES Pub. L. 100–119, title I, § 107(a)(1), Sept. 29, 1987, 101 Stat. 782, as amended by Pub. L. 100–203, title IV, § 4002(f)(2), Dec. 22, 1987, 101 Stat. 1330–45, provided that: ‘‘Notwithstanding any other provision of law, with re- spect to payment for inpatient hospital services under section 1886 of the Social Security Act [42 U.S.C. 1395ww]: ‘‘(A) TEMPORARY FREEZE IN PPS HOSPITAL RATES.— For purposes of subsection (d) of such section for dis- charges occurring during the period beginning on Oc- tober 1, 1987, and ending on November 20, 1987 (in this paragraph referred to as the ‘extension period’), the applicable percentage increase under subsection (b)(3)(B) of such section with respect to fiscal year 1988 is deemed to be 0 percent. ‘‘(B) TEMPORARY FREEZE IN PAYMENT BASIS.— ‘‘(i) EXTENSION OF BLENDED DRG RATE.—For pur- poses of subsection (d)(1) of such section, the ‘appli- cable combined adjusted DRG prospective payment rate’ for discharges occurring— ‘‘(I) during the extension period is the rate spec- ified in subsection (d)(1)(D)(ii) of such section, or ‘‘(II) after such period is the national adjusted prospective payment rate determined under sub- section (d)(3) of such section. ‘‘(ii) EXTENSION OF HOSPITAL-SPECIFIC PAYMENT.— For the first 51 days of a hospital cost reporting pe- riod beginning during fiscal year 1988, payment shall be made under clause (ii) (rather than clause (iii)) of subsection (d)(1)(A) of such section (subject to clause (i) of this subparagraph), the target per- centage and DRG percentage shall be those speci- fied in subsection (d)(1)(C)(iv) of such section, and the applicable percentage increase in a hospital’s target amount shall be deemed to be 0 percent. ‘‘(C) TEMPORARY FREEZE IN AMOUNTS OF PAYMENT FOR CAPITAL.—For payments attributable to portions of cost reporting periods occurring during the exten- sion period, the percent specified in subsection (g)(3)(A)(ii) of such section is deemed to be 3.5 per- cent. ‘‘(D) TEMPORARY FREEZE IN RETURN ON EQUITY RE- DUCTIONS.—For the first 51 days of a cost reporting period beginning during fiscal year 1988, subsection (g)(2) of such section shall be applied as though the applicable percentage were 75 percent. ‘‘(E) TEMPORARY FREEZE IN PAYMENTS RATES FOR PPS-EXEMPT HOSPITALS.—For purposes of payment under subsection (b) of such section for cost reporting periods beginning during fiscal year 1988, with respect to the first 51 days of such a period the applicable percentage increase under paragraph (3)(B) of such subsection is deemed to be 0 percent.’’ [Section 4002(f)(2) of Pub. L. 100–203 provided that the amendment of section 107(a)(1) of Pub. L. 100–119, set out above, by section 4002(f)(2) of Pub. L. 100–203 is ef- fective as of Sept. 29, 1987.] FREEZING CERTAIN CHANGES IN MEDICARE PAYMENT REGULATIONS AND POLICIES Pub. L. 100–119, title I, § 107(b), Sept. 29, 1987, 101 Stat. 783, provided that: ‘‘(1) IN GENERAL.—Notwithstanding any other provi- sion of law, the Secretary of Health and Human Serv- ices is not authorized to issue after September 18, 1987, and before November 21, 1987— ‘‘(A) any final regulation that changes the policy with respect to payment under title XVIII of the So- cial Security Act [42 U.S.C. 1395 et seq.] to providers of service for reasonable costs relating to unre- covered costs associated with unpaid deductible and coinsurance amounts incurred under such title; ‘‘(B) any final regulation, instruction, or other pol- icy change which is primarily intended to have the effect of slowing down claims processing, or delaying payment of claims, under such title; or ‘‘(C) any final regulation that changes the policy under such title with respect to payment for a return on equity capital for outpatient hospital services. The final regulation of the Health Care Financing Ad- ministration published on September 1, 1987 (52 Federal Register 32920) and relating to changes to the return on equity capital provisions for outpatient hospital serv- ices is void and of no effect. ‘‘(2) OTHER COST SAVINGS POLICIES.—Notwithstanding any other provision of law, except as required to imple- ment specific provisions required under statute, the Secretary of Health and Human Services is not author- ized to issue in final form, after September 18, 1987, and before November 21, 1987, any regulation, instruction, or other policy which is estimated by the Secretary to result in a net reduction in expenditures under title XVIII of the Social Security Act in fiscal year 1988 of more than $50,000,000. Any regulation, instruction, or policy which is issued in violation of this paragraph is void and of no effect. ‘‘(3) EXCEPTION.—Paragraphs (1) and (2) shall not be construed to apply to any regulation, instruction, or policy required to implement the amendment made by section 9311(a) of the Omnibus Budget Reconciliation Act of 1986 [section 9311(a) of Pub. L. 99–509, which amended section 1395g of this title] (relating to periodic interim payments).’’ MAINTAINING CURRENT OUTLIER POLICY IN FISCAL YEAR 1987 Pub. L. 99–509, title IX, § 9302(b)(3), Oct. 21, 1986, 100 Stat. 1982, provided that: ‘‘For payments made under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] for discharges occurring in fiscal year 1987— ‘‘(A) the proportions under paragraph (3)(B) for hos- pitals located in urban and rural areas shall be estab- lished at such levels as produce the same total dollar reduction under such paragraph as if this section had not been enacted; and ‘‘(B) the thresholds and standards used for making additional payments under paragraph (5) of such sec- tion shall be the same as those in effect as of October 1, 1986.’’ EXTENSION OF REGIONAL REFERRAL CENTER CLASSIFICATION Pub. L. 101–239, title VI, § 6003(d), Dec. 19, 1989, 103 Stat. 2142, provided that: ‘‘Any hospital that is classi- fied as a regional referral center under section 1886(d)(5)(C) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(C)] as of September 30, 1989, including a hospital so classified as a result of section 9302(d)(2) of the Omnibus Budget Reconciliation Act of 1986 [Pub. L. 99–509, set out below], shall continue to be classified as a regional referral center for cost reporting periods be- ginning on or after October 1, 1989, and before October 1, 1992.’’ Pub. L. 99–509, title IX, § 9302(d)(2), Oct. 21, 1986, 100 Stat. 1983, provided that: ‘‘Any hospital that is classi- fied as a regional referral center under section 1886(d)(5)(C)(i) of the Social Security Act [42 U.S.C. 1395ww(d)(5)(C)(i)] on the date of the enactment of this Act [Oct. 21, 1986] shall continue to be classified as a re- gional referral center for cost reporting periods begin- ning on or after October 1, 1986, and before October 1, 1989.’’ BUDGET-NEUTRAL IMPLEMENTATION Pub. L. 99–509, title IX, § 9302(d)(3), Oct. 21, 1986, 100 Stat. 1983, provided that: ‘‘Paragraph (2) [set out as a note above] and the amendment made by paragraph (1)(A) [amending this section] shall be implemented in a manner that ensures that total payments under sec- tion 1886 of the Social Security Act [42 U.S.C. 1395ww] are not increased or decreased by reason of the classi- fications required by such paragraph or amendment.’’ Page 3934 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww PROMULGATION OF NEW RATE Pub. L. 99–509, title IX, § 9302(f), Oct. 21, 1986, 100 Stat. 1984, provided that: ‘‘The Secretary of Health and Human Services shall provide, within 30 days after the date of the enactment of this Act [Oct. 21, 1986], for the publication of the payments rates that will apply under section 1886 of the Social Security Act [42 U.S.C. 1395ww], for discharges occurring on or after October 1, 1986, taking into account the amendments made by this section [amending this section], without regard to the provisions of chapter 5 of title 5, United States Code.’’ MISCELLANEOUS ACCOUNTING PROVISION Pub. L. 99–509, title IX, § 9307(d), Oct. 21, 1986, 100 Stat. 1996, as amended by Pub. L. 100–203, title IV, § 4008(e), Dec. 22, 1987, 101 Stat. 1330–56, provided that: ‘‘Notwith- standing any other provision of law, for purposes of sec- tion 1886(d)(1)(A) of the Social Security Act [42 U.S.C. 1395ww(d)(1)(A)], in the case of a hospital that— ‘‘(1) had a cost reporting period beginning on Sep- tember 28, 29, or 30 of 1985, ‘‘(2) is located in a State in which inpatient hos- pital services were paid in fiscal year 1985 pursuant to a Statewide demonstration project under section 402 of the Social Security Amendments of 1967 [section 402 of Pub. L. 90–248, enacting section 1395b–1 of this title and amending section 1395ll of this title] and sec- tion 222 of the Social Security Amendments of 1972 [section 222 of Pub. L. 92–603, amending sections 1395b–1 and 1395ll of this title and enacting provisions set out as a note under section 1395b–1 of this title], and ‘‘(3) elects, by notice to the Secretary of Health and Human Services by not later than April 1, 1988, to have this subsection apply, during the first 7 months of such cost reporting period the ‘target percentage’ shall be 75 percent and the ‘DRG percentage’ shall be 25 percent, and during the re- maining 5 months of such period the ‘target percent- age’ and the ‘DRG percentage’ shall each be 50 per- cent.’’ [Section 4008(e) of Pub. L. 100–203 provided that the amendment of section 9307(d) of Pub. L. 99–509, set out above, by section 4008(e) of Pub. L. 100–203 is effective as if included in the enactment of Pub. L. 99–509.] TREATMENT OF CAPITAL-RELATED REGULATIONS Pub. L. 99–509, title IX, § 9321(c), Oct. 21, 1986, 100 Stat. 2016, as amended by Pub. L. 100–119, title I, § 107(a)(2), Sept. 29, 1987, 101 Stat. 783; Pub. L. 100–203, title IV, § 4009(j)(6)(D), (F), Dec. 22, 1987, 101 Stat. 1330–59, pro- vided that: ‘‘(1) PROHIBITION OF ISSUANCE OF FINAL REGULATIONS ON CAPITAL-RELATED COSTS AS PART OF PAYMENT FOR OP- ERATING COSTS BEFORE NOVEMBER 21, 1987.—Notwith- standing any other provision of law (except as provided in paragraph (3)), the Secretary of Health and Human Services may not issue, in final form, after September 1, 1986, and before November 21, 1987, any regulation that changes the methodology for computing the amount of payment for capital-related costs (as defined in paragraph (4)) for inpatient hospital services under part A of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.]. Any regulation published in viola- tion of the previous sentence is void and of no effect. ‘‘(2) NOT INCLUDING CAPITAL-RELATED REGULATIONS IN BUDGET BASELINE.—Any reference in law to a regulation issued in final form or proposed by the Health Care Fi- nancing Administration pursuant to sections 1886(b)(3)(B), 1886(d)(3)(A), and 1886(e)(4) of the Social Security Act [42 U.S.C. 1395ww(b)(3)(B), (d)(3)(A), (e)(4)] shall not include any regulation issued or proposed with respect to capital-related costs (as defined in paragraph (4)). ‘‘(3) EXCEPTION.—Paragraph (1) shall not apply to any regulation issued for the sole purpose of implementing section 1861(v)(1)(O) and 1886(g)(2) of the Social Secu- rity Act [42 U.S.C. 1395x(v)(1)(O), 1395ww(g)(2)] and sec- tion 1886(g)(3)(A) and (B) of the Social Security Act [42 U.S.C. 1395ww(g)(3)(A), (B)] (as amended by section 9303(a) of this Act). ‘‘(4) CAPITAL-RELATED COSTS DEFINED.—In this sub- section, the term ‘capital-related costs’ means those capital-related costs that are specifically excluded, under the second sentence of section 1886(a)(4) of the Social Security Act [42 U.S.C. 1395ww(a)(4)], from the term ‘operating costs of inpatient hospital services’ (as defined in that section) for cost reporting periods be- ginning prior to October 1, 1987.’’ LIMITATION ON AUTHORITY TO ISSUE CERTAIN FINAL REGULATIONS AND INSTRUCTIONS RELATING TO HOS- PITALS OR PHYSICIANS Pub. L. 99–509, title IX, § 9321(d), Oct. 21, 1986, 100 Stat. 2017, provided that: ‘‘Notwithstanding any other provi- sion of law, except as required to implement specific provisions required under statute and except as pro- vided under subsection (c) [set out above] with respect to a regulation described in that subsection, the Sec- retary of Health and Human Services is not authorized to issue in final form after the date of the enactment of this Act [Oct. 21, 1986] and before September 1, 1987, any regulation, instruction, or other policy which is es- timated by the Secretary to result in a net reduction in expenditures under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] in fiscal year 1988 of more than $50,000,000, and which relates to hospitals or physi- cians.’’ STUDY OF METHODOLOGY FOR AREA WAGE ADJUSTMENT FOR CENTRAL CITIES; REPORT TO CONGRESS Pub. L. 99–272, title IX, § 9103(b), Apr. 7, 1986, 100 Stat. 156, provided that: ‘‘(1) The Secretary of Health and Human Services, in consultation with the Prospective Payment Assess- ment Commission, shall collect information and shall develop one or more methodologies to permit the ad- justment of the wage indices used for purposes of sec- tions 1886(d)(2)(C)(ii), 1886(d)(2)(H), and 1886(d)(3)(E) of the Social Security Act [42 U.S.C. 1395ww(d)(2)(C)(ii), (H), (3)(E)], in order to more accurately reflect hospital labor markets, by taking into account variations in wages and wage-related costs between the central city portion of urban areas and other parts of urban areas. ‘‘(2) The Secretary shall report to Congress on the in- formation collected and the methodologies developed under paragraph (1) not later than May 1, 1987. The re- port shall include a recommendation as to the feasi- bility and desirability of implementing such meth- odologies.’’ CONTINUATION OF MEDICARE REIMBURSEMENT WAIVERS FOR CERTAIN HOSPITALS PARTICIPATING IN REGIONAL HOSPITAL REIMBURSEMENT DEMONSTRATIONS Pub. L. 99–272, title IX, § 9108, Apr. 7, 1986, 100 Stat. 161, provided that: ‘‘(a) CONTINUATION OF WAIVERS.—A hospital reim- bursement control system which, on January 1, 1985, was carrying out a demonstration under a contract which had been approved by the Secretary of Health and Human Services pursuant to section 222(a) of the Social Security Amendments of 1972 [section 222(a) of Pub. L. 92–603, set out as a note under section 1395b–1 of this title], or under section 402 of the Social Security Amendments of 1967 (as amended by section 222(b) of the Social Security Amendments of 1972) [42 U.S.C. 1395b–1], shall be deemed to meet the requirements of section 1886(c)(1)(A) of the Social Security Act [42 U.S.C. 1395ww(c)(1)(A)] if such system applies— ‘‘(1) to substantially all non-Federal acute care hos- pitals (as defined by the Secretary) in the geographic area served by such system on January 1, 1985, and ‘‘(2) to the review of at least 75 percent of— ‘‘(A) all revenues or expenses in such geographic area for inpatient hospital services, and ‘‘(B) revenues or expenses in such geographic area for inpatient hospital services provided under the State’s plan approved under title XIX [42 U.S.C. 1396 et seq.]. Page 3935 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(b) APPROVAL.—In the case of a hospital cost control system described in subsection (a), the requirements of section 1886(c) of the Social Security Act [42 U.S.C. 1395ww(c)] which apply to States shall instead apply to such system and, for such purposes, any reference to a State is deemed a reference to such system. ‘‘(c) EFFECTIVE DATE.—This section shall become ef- fective on the date of the enactment of this Act [Apr. 7, 1986].’’ INFORMATION ON IMPACT OF PPS PAYMENTS ON HOSPITALS Pub. L. 99–272, title IX, § 9114, Apr. 7, 1986, 100 Stat. 163, provided that: ‘‘(a) DISCLOSURE OF INFORMATION.—The Secretary of Health and Human Services shall make available to the Prospective Payment Assessment Commission, the Congressional Budget Office, the Comptroller General, and the Congressional Research Service the most cur- rent information on the payments being made under section 1886 of the Social Security Act [42 U.S.C. 1395ww] to individual hospitals. Such information shall be made available in a manner that permits examina- tion of the impact of such section on hospitals. ‘‘(b) CONFIDENTIALITY.—Information disclosed under subsection (a) shall be treated as confidential and shall not be subject to further disclosure in a manner that permits the identification of individual hospitals.’’ SPECIAL RULES FOR IMPLEMENTATION OF HOSPITAL REIMBURSEMENT Pub. L. 99–272, title IX, § 9115, Apr. 7, 1986, 100 Stat. 163, provided that: ‘‘(a) WAIVER OF PAPERWORK REDUCTION.—Chapter 35 of title 44, United States Code, shall not apply to infor- mation required for purposes of carrying out this sub- part and implementing the amendments made by this subpart [subpart A (§§ 9101–9115) of part 1 of subtitle A of title IX of Pub. L. 99–272, see Tables for classifica- tion]. ‘‘(b) USE OF INTERIM FINAL REGULATIONS.—The Sec- retary of Health and Human Services shall issue such regulations (on an interim or other basis) as may be necessary to implement this subpart and the amend- ments made by this subpart.’’ APPOINTMENT OF ADDITIONAL MEMBERS TO PROSPECTIVE PAYMENT ASSESSMENT COMMISSION Pub. L. 99–272, title IX, § 9127(b), Apr. 7, 1986, 100 Stat. 170, as amended by Pub. L. 99–514, title XVIII, § 1895(b)(8), Oct. 22, 1986, 100 Stat. 2933, provided that: ‘‘The Director of the Congressional Office of Tech- nology Assessment shall appoint the two additional members of the Prospective Payment Assessment Com- mission, as required by the amendment made by sub- section (a) [amending this section], no later than 60 days after the date of the enactment of this Act [Apr. 7, 1986], for terms of three years, except that the Direc- tor may provide initially for such terms as will insure that (on a continuing basis) the terms of no more than eight members will expire in any one year.’’ STUDIES BY SECRETARY; GAO STUDY; REPORT ON UNI- FORMITY OF APPROVED FTE RESIDENT AMOUNTS; STUDY ON FOREIGN MEDICAL GRADUATES; ESTAB- LISHING PHYSICIAN IDENTIFIER SYSTEM; PAPERWORK REDUCTION Pub. L. 99–272, title IX, § 9202(c)–(h), Apr. 7, 1986, 100 Stat. 175, as amended by Pub. L. 100–203, title IV, § 4085(f), Dec. 22, 1987, 101 Stat. 1330–131; Pub. L. 101–508, title IV, § 4118(i)(2), Nov. 5, 1990, 104 Stat. 1388–70, pro- vided that: ‘‘(c) STUDIES BY SECRETARY.—(1) The Secretary of Health and Human Services shall conduct a study with respect to approved educational activities relating to nursing and other health professions for which reim- bursement is made to hospitals under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. The study shall address— ‘‘(A) the types and numbers of such programs, and number of students supported or trained under each program; ‘‘(B) the fiscal and administrative relationships be- tween the hospitals involved and the schools with which the programs and students are affiliated; and ‘‘(C) the types and amounts of expenses of such pro- grams for which reimbursement is made, and the fi- nancial and other contributions which accrue to the hospital as a consequence of having such programs. The Secretary shall report the results of such study to the Committee on Finance of the Senate and the Com- mittees on Ways and Means and Energy and Commerce of the House of Representatives prior to December 31, 1987. ‘‘(2) The Secretary shall conduct a separate study of the advisability of continuing or terminating the ex- ception under section 1886(h)(5)(F)(ii) of the Social Se- curity Act [42 U.S.C. 1395ww(h)(5)(F)(ii)] for geriatric residencies and fellowships, and of expanding such ex- ception to cover other educational activities, particu- larly those which are necessary to meet the projected health care needs of Medicare beneficiaries. Such study shall also examine the adequacy of the supply of fac- ulty in the field of geriatrics. The Secretary shall re- port the results of such study to the committees de- scribed in paragraph (1) prior to July 1, 1990. ‘‘(d) GAO STUDY.—(1) The Comptroller General shall conduct a study of the variation in the amounts of pay- ments made under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] with respect to patients in different teaching hospital settings and in the amounts of such payments which are made with respect to pa- tients who are treated in teaching and nonteaching hospital settings. Such study shall identify the compo- nents of such payments (including payments with re- spect to inpatient hospital services, physicians’ serv- ices, and capital costs, and, in the case of teaching hos- pital patients, payments with respect to direct and in- direct teaching costs) and shall account, to the extent feasible, for any variations in the amounts of the pay- ment components between teaching and nonteaching settings and among different teaching settings. ‘‘(2) In carrying out such study, the Comptroller Gen- eral may utilize a sample of hospital patients and any other data sources which he deems appropriate, and shall, to the extent feasible, control for differences in severity of illness levels, area wage levels, levels of physician reasonable charges for like services and pro- cedures, and for other factors which could affect the comparability of patients and of payments between teaching and nonteaching settings and among teaching settings. The information obtained in the study shall be coordinated with the information obtained in con- ducting the study of teaching physicians’ services under section 2307(c) of the Deficit Reduction Act of 1984 [section 2307(c) of Pub. L. 98–369, set out as a note under section 1395u of this title]. ‘‘(3) The Comptroller General shall report the results of the study to the committees described in subsection (c)(1) prior to December 31, 1987. ‘‘(e) REPORT ON UNIFORMITY OF APPROVED FTE RESI- DENT AMOUNTS.—The Secretary of Health and Human Services shall report to the committees described in subsection (c)(1), not later than December 31, 1987, on whether section 1886(h) of the Social Security Act [42 U.S.C. 1395ww(h)] should be revised to provide for great- er uniformity in the approved FTE resident amounts established under paragraph (2) of that section, and, if so, how such revisions should be implemented. ‘‘(f) STUDY ON FOREIGN MEDICAL GRADUATES.—The Secretary of Health and Human Services shall study, and report to the committees described in subsection (c)(1), not later than December 31, 1987, respecting the use of physicians who are foreign medical graduates (within the meaning of section 1886(h)(5)(D) of the So- cial Security Act [42 U.S.C. 1395ww(h)(5)(D)]) in the pro- vision of health care services (particularly inpatient and outpatient hospital services) to medicare bene- ficiaries. Such study shall evaluate— Page 3936 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395ww ‘‘(1) the types of services provided; ‘‘(2) the cost of providing such services, relative to the cost of other physicians providing the services or other approaches to providing the services; ‘‘(3) any deficiencies in the quality of the services provided, and methods of assuring the quality of such services; and ‘‘(4) the impact on costs of and access to services if medicare payment for hospitals’ costs of graduate medical education of foreign medical graduates were phased out. ‘‘[(g) Repealed. Pub. L. 101–508, title IV, § 4118(i)(2), Nov. 5, 1990, 104 Stat. 1388–70.] ‘‘(h) PAPERWORK REDUCTION.—Chapter 35 of title 44, United States Code, shall not apply to information re- quired for purposes of carrying out this section and the amendments made by this section [amending this sec- tion and section 1395x of this title and enacting notes set out under this section and section 1395x of this title].’’ SPECIAL TREATMENT OF STATES FORMERLY UNDER WAIVER Pub. L. 99–272, title IX, § 9202(j), Apr. 7, 1986, 100 Stat. 177, as amended by Pub. L. 99–514, title XVIII, § 1895(b)(10), Oct. 22, 1986, 100 Stat. 2933, provided that: ‘‘In the case of a hospital in a State that has had a waiver approved under section 1886(c) of the Social Se- curity Act [42 U.S.C. 1395ww(c)] or section 402 of the So- cial Security Amendments of 1967 [42 U.S.C. 1395b–1], for cost reporting periods beginning on or after Janu- ary 1, 1986, if the waiver is terminated— ‘‘(1) the Secretary of Health and Human Services shall permit the hospital to change the method by which it allocates administrative and general costs to the direct medical education cost centers to the method specified in the medicare cost report; ‘‘(2) the Secretary may make appropriate adjust- ments in the regional adjusted DRG prospective pay- ment rate (for the region in which the State is lo- cated), based on the assumption that all teaching hospitals in the State use the medicare cost report; and ‘‘(3) the Secretary shall adjust the hospital-specific portion of payment under section 1886(d) of such Act [42 U.S.C. 1395ww(d)] for any such hospital that actu- ally chooses to use the medicare cost report. The Secretary shall implement this subsection based on the best available data.’’ MORATORIUM ON LABORATORY PAYMENT DEMONSTRA- TIONS; COOPERATION IN STUDY; REPORT TO CONGRESS Pub. L. 99–272, title IX, § 9204, Apr. 7, 1986, 100 Stat. 177, as amended by Pub. L. 99–509, title IX, § 9339(e), Oct. 21, 1986, 100 Stat. 2037; Pub. L. 100–203, title IV, § 4085(c), Dec. 22, 1987, 101 Stat. 1330–130; Pub. L. 100–647, title VIII, § 8426, Nov. 10, 1988, 102 Stat. 3803, provided that: ‘‘(a) MORATORIUM.—Prior to January 1, 1990, the Sec- retary of Health and Human Services shall not conduct any demonstration projects relating to competitive bidding as a method of purchasing laboratory services under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. The Secretary may contract for the design of, and site selection for, such demonstration projects. ‘‘(b) COOPERATION IN STUDY.—The Secretary of Health and Human Services and the Comptroller General shall assist representatives of clinical laboratories in the in- dustry’s conduct of a study to determine whether methods exist which are better than competitive bid- ding for purposes of utilizing competitive market forces in setting payment levels for laboratory services under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.]. If such a study is conducted by the clinical laboratory industry, the Secretary and the Comptroller General shall comment on such study and submit such comments and the study to the Senate Committee on Finance and the House Committees on Ways and Means and Energy and Commerce.’’ MEDICARE HOSPITAL AND PHYSICIAN PAYMENT PROVISIONS; EXTENSION PERIOD Pub. L. 99–107, § 5, Sept. 30, 1985, 99 Stat. 479, as amended by Pub. L. 99–155, § 2(d), Nov. 14, 1985, 99 Stat. 814; Pub. L. 99–181, § 4, Dec. 13, 1985, 99 Stat. 1172; Pub. L. 99–189, § 4, Dec. 18, 1985, 99 Stat. 1184; Pub. L. 99–201, § 2, Dec. 23, 1985, 99 Stat. 1665; Pub. L. 99–272, title IX, §§ 9101(a), 9301(a), Apr. 7, 1986, 100 Stat. 153, 184, provided that: ‘‘(a) MAINTAINING EXISTING HOSPITAL PAYMENT RATES.—Notwithstanding any other provision of law, the amount of payment under section 1886 of the Social Security Act [42 U.S.C. 1395ww] for inpatient hospital services for discharges occurring (and cost reporting periods beginning) during the extension period (as de- fined in subsection (c)) shall be determined on the same basis as the amount of payment for such services for a discharge occurring on (or the cost reporting period be- ginning immediately on or before) September 30, 1985. ‘‘(b) MAINTAINING EXISTING PAYMENT RATES FOR PHY- SICIANS’ SERVICES.—Notwithstanding any other provi- sion of law, the amount of payment under part B of title XVIII of the Social Security Act [42 U.S.C. 1395j et seq.] for physicians’ services which are furnished during the extension period (as defined in subsection (c)) shall be determined on the same basis as the amount of pay- ment for such services furnished on September 30, 1985, and the 15-month period, referred to in section 1842(j)(1) of such Act [42 U.S.C. 1395u(j)(1)], shall be deemed to in- clude the extension period. ‘‘(c) EXTENSION PERIOD DEFINED.— ‘‘(1) HOSPITAL PAYMENTS.—For purposes of sub- section (a), the term ‘extension period’ means the pe- riod beginning on October 1, 1985, and ending on April 30, 1986. ‘‘(2) PHYSICIAN PAYMENTS.—For purposes of sub- section (b), the term ‘extension period’ means the pe- riod beginning on October 1, 1985, and ending on April 30, 1986.’’ [Amendment of section 5 of Pub. L. 99–107, set out above, by section 9101(a) of Pub. l. 99–272 effective Mar. 15, 1986, see section 9101(d) of Pub. L. 99–272, set out above.] DEFINITION OF HOSPITAL SERVING SIGNIFICANTLY DIS- PROPORTIONATE NUMBER OF LOW-INCOME PATIENTS OR PATIENTS ENTITLED TO HOSPITAL INSURANCE BENE- FITS FOR AGED AND DISABLED; IDENTIFICATION Pub. L. 98–369, div. B, title III, § 2315(h), July 18, 1984, 98 Stat. 1080, provided that: ‘‘The Secretary of Health and Human Services shall, prior to December 31, 1984— ‘‘(1) develop and publish a definition of ‘hospitals that serve a significantly disproportionate number of patients who have low income or are entitled to bene- fits under part A’ of title XVIII of the Social Security Act [42 U.S.C. 1395c et seq.] for purposes of section 1886(d)(5)(C)(i) of that Act [42 U.S.C. 1395ww(d)(5)(C)(i)], and ‘‘(2) identify those hospitals which meet such defi- nition, and make such identity available to the Com- mittee on Ways and Means of the House of Represent- atives and the Committee on Finance of the Senate.’’ PROSPECTIVE PAYMENT WAGE INDEX; STUDIES AND REPORTS TO CONGRESS Pub. L. 98–369, div. B, title III, § 2316, July 18, 1984, 98 Stat. 1081, as amended by Pub. L. 99–272, title IX, § 9103(a)(1), Apr. 7, 1986, 100 Stat. 156, provided that: ‘‘(a) The Secretary of Health and Human Services, in consultation with the Secretary of Labor, shall conduct a study to develop an appropriate index for purposes of adjusting payment amounts under section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)] to reflect area differences in average hospital wage levels, as required under paragraphs (2)(H) and (3)(E) of such section [42 U.S.C. 1395ww(d)(2)(H), (3)(E)], taking into account wage differences of full time and part time workers. The Secretary of Health and Human Services shall re- port the results of such study to the Congress not later Page 3937 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1395xx than 30 days after the date of the enactment of this Act [July 18, 1984], including any changes which the Sec- retary determines to be necessary to provide for an ap- propriate index. ‘‘(b) The Secretary shall adjust the payment amounts for hospitals for discharges occurring on or after May 1, 1986, to reflect the changes the Secretary has promul- gated in final regulations (on September 3, 1985) relat- ing to the hospital wage index under section 1886(d)(3)(E) of the Social Security Act [42 U.S.C. 1395ww(d)(3)(E)]. For discharges occurring after Sep- tember 30, 1986, the Secretary shall provide for such periodic adjustments in the appropriate wage index used under that section as may be necessary, taking into account changes in the wage levels and relative proportions of full-time and part-time workers. ‘‘(c) The Secretary shall conduct a study and report to the Congress on proposed criteria under which, in the case of a hospital that demonstrates to the Sec- retary in a current fiscal year that the adjustment being made under paragraph (2)(H) or (3)(E) of section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)(2)(H), (3)(E)] for that hospital’s discharges in that fiscal year does not accurately reflect the wage levels in the labor market serving the hospital, the Secretary, to the extent he deems appropriate, would modify such adjustment for that hospital for discharges in the subsequent fiscal year to take into account a dif- ference in payment amounts in that current fiscal year to the hospital that resulted from such inaccuracy.’’ [Pub. L. 99–272, title IX, § 9103(a)(2), Apr. 7, 1986, 100 Stat. 156, provided that: ‘‘The amendment made by paragraph (1) [amending this note] shall be effective as if it had been included in the Deficit Reduction Act of 1984 [Pub. L. 98–369].’’] DIFFERENT TREATMENT OF CAPITAL-PROJECTS-RELATED COSTS BEFORE AND AFTER IMPLEMENTATION OF SYS- TEM FOR INCLUDING SUCH COSTS UNDER PROSPEC- TIVELY DETERMINED PAYMENT RATE Pub. L. 98–21, title VI, § 601(a)(3), Apr. 20, 1983, 97 Stat. 149, provided that: ‘‘It is the intent of Congress that, in considering the implementation of a system for includ- ing capital-related costs under a prospectively deter- mined payment rate for inpatient hospital services, costs related to capital projects for which expenditures are obligated on or after the effective date of the imple- mentation of such a system, may or may not be distin- guished and treated differently from costs of projects for which expenditures were obligated before such date.’’ NEW ENGLAND HOSPITALS; CLASSIFICATION AS URBAN OR RURAL Pub. L. 98–21, title VI, § 601(g), Apr. 20, 1983, 97 Stat. 163, provided that: ‘‘In determining whether a hospital is in an urban or rural area for purposes of section 1886(d) of the Social Security Act [42 U.S.C. 1395ww(d)], the Secretary of Health and Human Services shall clas- sify any hospital located in New England as being lo- cated in an urban area if such hospital was classified as being located in an urban area under the Standard Met- ropolitan Statistical Area system of classification in effect in 1979.’’ REPORTS, EXPERIMENTS, AND DEMONSTRATION PROJ- ECTS RELATED TO INCLUSION IN PROSPECTIVE PAY- MENT AMOUNTS OF INPATIENT HOSPITAL SERVICE CAPITAL-RELATED COSTS Pub. L. 98–21, title VI, § 603(a), Apr. 20, 1983, 97 Stat. 166, as amended by Pub. L. 98–369, div. B, title III, § 2317, July 18, 1984, 98 Stat. 1081; Pub. L. 99–509, title IX, § 9305(i)(1), Oct. 21, 1986, 100 Stat. 1993; Pub. L. 104–66, title I, § 1061(d), Dec. 21, 1995, 109 Stat. 720, directed Sec- retary of Health and Human Services to report to Con- gress within 18 months after Apr. 20, 1983, on legislation by which capital-related costs associated with inpa- tient hospital services could be included within the prospective payment amounts computed under subsec. (d) of this section, further provided that the Secretary was to study and report to Congress on reimbursement of sole community hospitals based on variations in oc- cupancy, on coordination of an information transfer be- tween parts A and B of this subchapter, on treatment of uncompensated care costs and adjustments appro- priate for large rural teaching hospitals, and on advis- ability of having hospitals make cost-of-care informa- tion to certain patients, and further provided that the Secretary was to study and report to Congress on a method for including hospitals outside the 50 States and the District of Columbia under a prospective pay- ment system. INAPPLICABILITY OF COORDINATION OF FEDERAL INFOR- MATION POLICY TO THE COLLECTION OF INFORMATION Pub. L. 97–248, title I, § 101(b)(2)(B), Sept. 3, 1982, 96 Stat. 335, as amended by Pub. L. 97–448, title III, § 309(a)(1), Jan. 12, 1983, 96 Stat. 2408, provided that: ‘‘Chapter 35 of title 44, United States Code, shall not apply, until January 1, 1984, to collection of informa- tion and information collection requests which the Sec- retary of Health and Human Services determines to be necessary to carry out the amendments made by this section [amendments by section 101(a) of Pub. L. 97–248, enacting this section and amending section 1395x of this title].’’ § 1395xx. Payment of provider-based physicians and payment under certain percentage ar- rangements (a) Criteria; amount of payments (1) The Secretary shall by regulation deter- mine criteria for distinguishing those services (including inpatient and outpatient services) rendered in hospitals or skilled nursing facili- ties— (A) which constitute professional medical services, which are personally rendered for an individual patient by a physician and which contribute to the diagnosis or treatment of an individual patient, and which may be reim- bursed as physicians’ services under part B, and (B) which constitute professional services which are rendered for the general benefit to patients in a hospital or skilled nursing facil- ity and which may be reimbursed only on a reasonable cost basis or on the bases described in section 1395ww of this title. (2)(A) For purposes of cost reimbursement, the Secretary shall recognize as a reasonable cost of a hospital or skilled nursing facility only that portion of the costs attributable to services ren- dered by a physician in such hospital or facility which are services described in paragraph (1)(B), apportioned on the basis of the amount of time actually spent by such physician rendering such services. (B) In determining the amount of the pay- ments which may be made with respect to serv- ices described in paragraph (1)(B), after appor- tioning costs as required by subparagraph (A), the Secretary may not recognize as reasonable (in the efficient delivery of health services) such portion of the provider’s costs for such services to the extent that such costs exceed the reason- able compensation equivalent for such services. The reasonable compensation equivalent for any service shall be established by the Secretary in regulations. (C) The Secretary may, upon a showing by a hospital or facility that it is unable to recruit or