(a) MULTIPLE PROCEDURE PAYMENT REDUC- TION FOR IMAGING EXEMPTED FROM BUDGET NEUTRALITY.—Section 1848(c)(2)(B) of the Social Security Act (42 U.S.C. 1395w–4(c)(2)(B)) is amended— (1) in clause (ii)(II), by striking ‘‘clause (iv)’’ and inserting ‘‘clauses (iv) and (v)’’; (2) in clause (iv) in the heading, by inserting ‘‘OF CERTAIN ADDITIONAL EXPENDITURES’’ after ‘‘EXEMPTION’’; and (3) by adding at the end the following new clause: ‘‘(v) EXEMPTION OF CERTAIN REDUCED EXPEND- ITURES FROM BUDGET-NEUTRALITY CALCULA- TION.—The following reduced expenditures, as estimated by the Secretary, shall not be taken into account in applying clause (ii)(II): ‘‘(I) REDUCED PAYMENT FOR MULTIPLE IMAG- ING PROCEDURES.

In addition, for purposes of Medicare incentive payments, the HITECH Act authorizes the HHS Secretary to select “clinical quality standards” that Medicare participating “eligible professionals” and “eligible hospitals” would report on to demonstrate “meaningful EHR use.” HITECH Act §§ 4101(a) (adding 42 U.S.C. § 1395w-4(o)(2)) and 4102(a) (adding 42 U.S.C. § 1395ww(n)(3)). 21 medication.”

Thus, 42 U.S.C. § 1395w-4(n)(9)(G) bars review of the “establishment” of a particular methodology, as well as the “determination” of an input to that methodology (specifically, the “determination of an episode of care”) but does not broadly bar review of the entire methodology itself. 42 U.S.C. § 1395w-4(p)(10)(G) provides that there is no review of “the determination of costs under paragraph (8)(A),” but paragraph (8)(A) does not provide a “process” for determining costs, and paragraph (10)(G) does not bar review of a Case 1:15-cv-01663-RMC Document 19 Filed 03/14/16 Page 9 of 12 8 process. 42 U.S.C. § 1315a(d)(2)(D) bars review of certain “determinations regarding budget neutrality under subsection (b)(3),” but subsection (b)(3) does not require the Secretary to establish a process for determining budget neutrality, and the preclusion provision does not bar review of a process.

However, as the components taken into account when setting the physician’s fee schedule make clear, this is not true. See 42 U.S.C. § 1395w-4; Plfs’ Mem. at 22.

However, as the components taken into account when setting the physician’s fee schedule make clear, this is not true. See 42 U.S.C. § 1395w-4; Plfs’ Mem. at 22.

In fact, the only conclusion that can be drawn from the Part B fee schedule methodology that was initially established to govern physician payments is that it does not account for bad debts. See 42 U.S.C. § 1395w-4 (the components taken into account when setting the physician’s fee schedule are the physician’s work, i.e., the time and intensity of effort involved; practice expense or overhead, such as rent, staff salaries, equipment and supplies (except malpractice insurance); and professional liability insurance or malpractice costs). Moreover, in seeking to distinguish the particular bad debt claims here involved on the basis that a Part B fee schedule is not based on a provider’s costs, the Secretary disregards the fact that the governing regulation permits the Facilities to claim these deductions from revenue as bad debt on their Medicare cost reports.

passim 31 U.S.C. §§ 3729 et seq........................................................................................................ passim 42 U.S.C. §§ 1395w-101 et seq. ................................................................................................8, 24 42 U.S.C. §§ 1395w-4 et seq. ..........................................................................................................8 42 U.S.C. §§ 1396 et seq............................................................................................................9, 24 21 C.F.R. §§ 1.1 et seq. ....................................................................................................................3 21 C.F.R. § 10.

passim 31 U.S.C. §§ 3729 et seq........................................................................................................ passim 42 U.S.C. §§ 1395w-101 et seq. ................................................................................................8, 24 42 U.S.C. §§ 1395w-4 et seq. ..........................................................................................................8 42 U.S.C. §§ 1396 et seq............................................................................................................9, 24 21 C.F.R. §§ 1.1 et seq. ....................................................................................................................3 21 C.F.R. § 10.

To the contrary, there was indeed a significant change to the statute and regulations, of which the Plaintiffs are certainly aware --the BBA-- and the corresponding implementing regulations, which changed the entire mechanism for how SNFs are paid from a reasonable cost system to a prospective payment fee schedule methodology. 42 U.S.C. 1395w-4; 42 C.F.R. 413.1(g)(2) (2000).