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S 848

112th CONGRESS
1st Session

S. 848

To provide for the development of reports based on Medicare data, data that is publicly available, or private data that is provided by a requesting entity in order to improve the quality and efficiency of health care.

IN THE SENATE OF THE UNITED STATES

April 14, 2011

Mr. CORNYN introduced the following bill; which was read twice and referred to the Committee on Finance


A BILL

To provide for the development of reports based on Medicare data, data that is publicly available, or private data that is provided by a requesting entity in order to improve the quality and efficiency of health care.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `The Consumer Information Enhancement Act of 2011'.

SEC. 2. QUALITY AND EFFICIENCY REPORTS BASED ON MEDICARE ENROLLMENT, CLAIMS, SURVEY, AND ASSESSMENT DATA.

    Title XVIII of the Social Security Act is amended by adding at the end the following new section:

`QUALITY AND EFFICIENCY REPORTS BASED ON MEDICARE DATA

    `Sec. 1899B. (a) Purpose- The purpose of this section is to provide for the development of reports based on Medicare data, data that is publicly available, or private data that is provided by a requesting entity (as defined in subsection (e)(1)(A)) in order to--

      `(1) improve the quality and efficiency of health care;

      `(2) enhance the education and awareness of consumers for evaluating health care services; and

      `(3) provide the public with reports on national, regional, and provider- and supplier-specific performance, which may be in a provider- or supplier-identifiable format.

    `(b) Procedures for the Development of Reports-

      `(1) IN GENERAL- Notwithstanding sections 552(b)(6) and 552a(b) of title 5, United States Code, not later than 12 months after the date of enactment of this section, the Secretary, in accordance with the purpose described in subsection (a) and the requirements described in subsection (d)(3), shall establish and implement procedures under which a requesting entity may submit an application to a Consumer Information Organization for such Organization to develop a report based on--

        `(A) Medicare data disclosed to the Organization under subsection (c);

        `(B) data, including clinical data when available, that is publicly available; and

        `(C) private data that is provided to the Organization by the requesting entity.

      `(2) DEFINITIONS- In this section:

        `(A) MEDICARE DATA- The term `Medicare data' means--

          `(i) enrollment data under this title, including de-identified beneficiary enrollment data;

          `(ii) all claims for reimbursement for all items and services furnished by a provider of services (as defined in section 1861(u)) or a supplier (as defined in section 1861(d)) under part A or B in a research identifiable format;

          `(iii) on and after January 1, 2011, all data relating to enrollment in, and coverage for, qualified prescription drug coverage under part D; and

          `(iv) additional data relating to the program under this title collected by the Secretary for the purpose of nationwide quality measurement and reporting based on surveys and assessment data determined appropriate by the Secretary.

        `(B) CONSUMER INFORMATION ORGANIZATION- The term `Consumer Information Organization' means an entity with a contract under subsection (d).

      `(3) RULE OF CONSTRUCTION- Nothing in this section shall be construed as authorizing or requiring the Secretary to collect any additional information or data that was not collected by the Secretary prior to the date of enactment of this section.

    `(c) Access to Medicare Data-

      `(1) IN GENERAL- The procedures established under subsection (b)(1) shall provide for the secure disclosure of Medicare data to each Consumer Information Organization.

      `(2) ALL DATA- The Secretary shall ensure that all Medicare data (as described in subsection (b)(2)(A)), beginning with data from January 1, 2005, is disclosed under paragraph (1), including the most recent data available to the Secretary. Not less than every 6 months, the Secretary shall update the Medicare data disclosed under paragraph (1) to each Consumer Information Organization.

    `(d) Consumer Information Organizations-

      `(1) IN GENERAL-

        `(A) CONTRACTS WITH PRIVATE ENTITIES- Subject to subparagraph (B), the Secretary shall enter into a contract with 3 private entities, as well as any State described in subparagraph (C)(i), to serve as Consumer Information Organizations, under which each such entity or State shall--

          `(i) store the Medicare data that is to be disclosed under subsection (c); and

          `(ii) develop and release reports pursuant to subsection (e).

        `(B) ADDITIONAL CONTRACTS WITH PRIVATE ENTITIES- If the Secretary determines that reports are not being developed and released within 6 months of the receipt of the request for the report, the Secretary shall enter into contracts with additional private entities in order to ensure that such reports are developed and released in a timely manner.

        `(C) CONTRACTS WITH STATES-

          `(i) IN GENERAL- At the request of a State, the Secretary shall enter into a contract with such State to serve as a Consumer Information Organization.

          `(ii) EXISTING DATA USE AGREEMENTS- Nothing in this section shall be construed to preempt, modify, or otherwise affect any data use agreement relating to Medicare patient-level data that has been entered into by the Secretary and a State prior to the date of enactment of this section.

      `(2) QUALIFICATIONS- The Secretary shall enter into a contract with a private entity or a State under paragraph (1) only if the Secretary determines that such entity or State--

        `(A) has the research capability to conduct and complete reports under this section;

        `(B) has in place-

          `(i) an information technology infrastructure to support the entire database of Medicare data; and

          `(ii) operational standards to provide security for such database;

        `(C) has experience with, and expertise on, the development of reports on health care quality and efficiency based on Medicare or private sector claims data;

        `(D) is incorporated in the United States;

        `(E) has provided sufficient assurances that any data provided to such entity or State under this section shall not be made accessible to any individual or entity residing outside of the United States; and

        `(F) has demonstrated the ability to satisfy the requirements described in paragraph (3).

      `(3) CONFIDENTIALITY AND PRIVACY REQUIREMENTS- The Secretary shall issue such regulations and include in each contract described in paragraph (1) such terms as are necessary to ensure that each private entity or State meets the following requirements:

        `(A) ENSURING BENEFICIARY PRIVACY-

          `(i) HIPAA- The entity or State shall meet the requirements imposed on a covered entity for purposes of applying part C of title XI and all regulatory provisions promulgated thereunder, including regulations (relating to privacy) adopted pursuant to the authority of the Secretary under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).

          `(ii) PRIVACY- The entity or State shall provide assurances that such entity or State will not use the Medicare data disclosed under subsection (c) in a manner that violates sections 552 or 552a of title 5, United States Code, with regard to the privacy of individually identifiable beneficiary health information.

        `(B) PROPRIETARY INFORMATION- The entity or State shall not disclose any trade secrets, commercial or financial information, or pricing data that is identifiable to a particular entity, including--

          `(i) part D negotiated price concessions, such as discounts, direct or indirect subsidies, rebates, and direct or indirect remunerations, obtained by prescription drug plans and MA-PD plans for covered part D drugs;

          `(ii) pricing information between a Medicare Advantage Organization and any provider, supplier, contractor, or subcontractor; and

          `(iii) any other proprietary cost information.

        `(C) PROTECTION OF INFORMATION- The entity or State shall use Medicare data disclosed under subsection (c) solely for the purposes described in this section. Nothing in this section shall be construed to limit the requirements imposed on such entity or State by section 1905 of title 18, United States Code, or pursuant to the public disclosure protections provided under section 552(b) of title 5, United States Code.

        `(D) DISCLOSURE- The entity or State shall disclose--

          `(i) any financial, reporting, or contractual relationship between such entity or State and any provider of services (as defined in section 1861(u)) or supplier (as defined in section 1861(d)); and

          `(ii) if applicable, the fact that the entity is managed, controlled, or operated by any such provider of services or supplier.

        `(E) COMPONENT OF ANOTHER ORGANIZATION- If an entity is a component of another organization, such entity--

          `(i) shall maintain Medicare data and reports separately from the rest of the organization and establish appropriate security measures to maintain the confidentiality and privacy of the Medicare data and reports; and

          `(ii) shall not make an unauthorized disclosure to the rest of the organization of Medicare data or reports in breach of such confidentiality and privacy requirement.

        `(F) TERMINATION OR NONRENEWAL- If a contract under this section is terminated or not renewed, the following requirements shall apply:

          `(i) CONFIDENTIALITY AND PRIVACY PROTECTIONS- The entity or State shall continue to comply with the confidentiality and privacy requirements under this section with respect to all Medicare data disclosed to such entity or State and each report developed by such entity or State.

          `(ii) DISPOSITION OF DATA AND REPORTS- The entity or State shall--

            `(I) return to the Secretary all Medicare data disclosed to such entity or State and each report developed by such entity or State; or

            `(II) if returning the Medicare data and reports is not practicable, destroy such data and reports.

      `(4) COMPETITIVE PROCEDURES- Competitive procedures (as defined in section 4(5) of the Federal Procurement Policy Act) shall be used to enter into contracts with private entities under subparagraphs (A) or (B) of paragraph (1).

      `(5) REVIEW OF CONTRACT IN THE EVENT OF A MERGER OR ACQUISITION- For purposes of contracts described under subparagraphs (A) and (B) of paragraph (1), the Secretary shall review the contract with a Consumer Information Organization under this section in the event of a merger or acquisition of the Organization in order to ensure that the requirements under this section will continue to be met.

    `(e) Development and Release of Reports Based on Requests-

      `(1) REQUEST FOR A REPORT-

        `(A) REQUESTING ENTITY- The term `requesting entity' means an individual, group, or State that has submitted a request to a Consumer Information Organization for development of a report based upon Medicare data disclosed to such Organization under subsection (c), data that is publicly available, or private data that is provided by the requesting entity.

        `(B) REQUEST-

          `(i) IN GENERAL- Subject to the purpose described in subsection (a), the procedures established under subsection (b)(1) shall include a process for a requesting entity to submit an application to a Consumer Information Organization for development of a report.

          `(ii) REQUEST FOR SPECIFIC METHODOLOGY- The process described in clause (i) shall permit a requesting entity to request that a specific methodology, including appropriate risk-adjustment, be used by the Consumer Information Organization in developing the report. The Organization shall work with the requesting entity to finalize the methodology to be used.

          `(iii) REQUEST FOR A SPECIFIC CONSUMER INFORMATION ORGANIZATION- The process described in clause (i) shall permit a requesting entity to submit an application for a report to any Consumer Information Organization.

        `(C) RELEASE TO PUBLIC- The procedures established under subsection (b)(1) shall provide that at the time an application for a report is finalized under subparagraph (A) by a Consumer Information Organization, the Organization shall make available to the public, through the Internet Web site of the Centers for Medicare & Medicaid Services and other appropriate means, a brief description of both the requested report and the methodology to be used to develop such report.

        `(D) RIGHT OF APPEAL- The Secretary shall promulgate regulations establishing a right of appeal and appeals process with respect to the denial of a request for development of a report by a Consumer Information Organization, under which the requesting entity may appeal the decision of the Organization.

      `(2) DEVELOPMENT AND RELEASE OF REPORT-

        `(A) DEVELOPMENT-

          `(i) IN GENERAL- Subject to clauses (ii) and (iii), if an application for a report complies with the purpose described in subsection (a), the Consumer Information Organization may develop the report based upon such application.

          `(ii) STANDARDS AND METHODOLOGY- A report developed under clause (i) shall include a detailed description of the standards, methodologies, and measures of quality used in developing the report.

          `(iii) CONSULTATION REQUIREMENT- For purposes of developing a report under clause (i), the Consumer Information Organization shall consult with relevant national professional organizations (as determined appropriate based upon the content of the report) and include in the report a summary of any comments or feedback provided by such organizations.

        `(B) REVIEW OF REPORT BY SECRETARY TO ENSURE COMPLIANCE WITH PRIVACY REQUIREMENT- Prior to release of a report by a Consumer Information Organization under subparagraph (C), the Secretary shall review the report to ensure that the report complies with the Federal regulations (concerning the privacy of individually identifiable beneficiary health information) promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 and sections 552 or 552a of title 5, United States Code, with regard to the privacy of individually identifiable beneficiary health information, as well as any requirements described in subsection (d)(3) regarding use and protection of data disclosed to the Organization. The Secretary shall act within 30 business days of receiving such report.

        `(C) RELEASE OF REPORT-

          `(i) RELEASE TO ENTITY MAKING REQUEST- If the Secretary finds that the report complies with the provisions described in subparagraph (B), the Consumer Information Organization shall release the report to the requesting entity.

          `(ii) RELEASE TO PUBLIC- The procedures established under subsection (b)(1) shall provide for the following:

            `(I) UPDATED DESCRIPTION- At the time of the release of a report by a Consumer Information Organization under clause (i), the requesting entity shall make available to the public, through the Internet Web site of the Centers for Medicare & Medicaid Services and other appropriate means, an updated brief description of both the requested report and the methodology used to develop such report.

            `(II) COMPLETE REPORT- Subject to clause (iii), not later than 1 year after the date of the release of a report under clause (i), the report shall be made available to the public through the Internet Web site of the Centers for Medicare & Medicaid Services and other appropriate means.

          `(iii) PUBLIC COMMENT- The Secretary shall establish a process that provides an opportunity for public comment, for a period of not less than 90 days, following the release of the report to the public under clause (ii)(II), with any public comments received to be included with the report on the Internet Web site of the Centers for Medicare & Medicaid Services.

    `(f) Annual Review of Reports and Termination of Contracts-

      `(1) ANNUAL REVIEW OF REPORTS- The Comptroller General of the United States shall--

        `(A) review reports released under subsection (e)(2)(C) to ensure that such reports comply with the purpose described in subsection (a);

        `(B) review whether such reports result in limitations on patient access to health care services; and

        `(C) annually submit a report to the Secretary on such review.

      `(2) TERMINATION OF CONTRACTS- The Secretary may terminate a contract with a Consumer Information Organization if the Secretary determines that there is a pattern of reports being released by the Organization that do not comply with the purpose described in subsection (a).

    `(g) Fees-

      `(1) FEES FOR SECRETARY-

        `(A) IN GENERAL- Subject to subparagraph (B), the Secretary shall charge each Consumer Information Organization a fee that is sufficient to cover costs incurred by the Secretary in regard to--

          `(i) disclosure of Medicare data under subsection (c); and

          `(ii) conducting the review under subsection (e)(2)(B).

        `(B) COMPARABLE TO FEES CHARGED FOR EXISTING DATA USE AGREEMENTS- For purposes of the fees described in subparagraph (A), such fees shall be reasonably comparable to fees charged by the Secretary in relation to data use agreements described in subsection (d)(1)(C)(ii).

      `(2) FEES FOR CONSUMER INFORMATION ORGANIZATION-

        `(A) IN GENERAL- Subject to subparagraphs (B) and (C), a Consumer Information Organization may charge a requesting entity a reasonable fee for the development and release of the report.

        `(B) DISCOUNT FOR SMALL ENTITIES- In the case of a requesting entity (including a not-for-profit organization) that has annual revenue that does not exceed $10,000,000, the Consumer Information Organization shall reduce the reasonable fee charged to such entity under subparagraph (A) by an amount equal to 10 percent of such fee.

        `(C) INCREASE FOR LARGE ENTITIES THAT DO NOT AGREE TO RELEASE REPORTS WITHIN 6 MONTHS- In the case of a requesting entity that is not described in subparagraph (B) and that does not agree to the report being released to the public under clause (ii)(II) of subsection (e)(2)(C) within 6 months of the date of the release of the report to the entity under clause (i) of such subsection, the Consumer Information Organization shall increase the fee charged to such entity under subparagraph (A) by an amount equal to 10 percent of such fee.

        `(D) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed to effect the requirement that a report be released to the public under clause (ii)(II) of subsection (e)(2)(C) by not later than 1 year after the date of the release of the report to the requesting entity under clause (i) of such subsection.

    `(h) Regulations- Not later than 6 months after the date of enactment of this section, the Secretary shall, after providing notice and comment opportunities to the public, prescribe regulations to carry out this section, including such regulations as are necessary to carry out the confidentiality and privacy requirements described in subsection (d)(3).'.

SEC. 3. RESEARCH ACCESS TO MEDICARE DATA AND REPORTING ON PERFORMANCE.

    (a) In General- The Secretary of Health and Human Services shall permit researchers that meet criteria used to ensure the appropriateness of the release of Centers for Medicare & Medicaid Services data for research purposes to--

      (1) have access to all Medicare data (as defined in section 1899B(b)(2)(A) of the Social Security Act, as added by section 2); and

      (2) report on the performance of providers of services (as defined in subsection (u) of section 1861 of such Act) and suppliers (as defined in subsection (d) of such section), including reporting in a provider- or supplier-identifiable format.

    (b) Confidentiality and Privacy Requirements- For purposes of disclosing any information or data to a researcher under this section, the Secretary of Health and Human Services shall ensure that the confidentiality and privacy requirements described in subparagraphs (A) through (C) of section 1899B(d)(3) of the Social Security Act are applied to such researcher in the same manner as such requirements are applied to a private entity or State under such subparagraphs.

END