§1320a–1 — Title 42 The Public Health and Welfare | U.S. Code

Summary

Stops Medicare and Medicaid money from paying for big, unnecessary building or equipment projects at health care facilities unless the project is reviewed and approved under a State planning agreement. The Secretary of Health must work with a State governor and local officials to set up a state planning agency. That agency must have a board with at least half of its members representing consumers. The agency will review proposed projects, collect and pass on reviews from other local planning groups, and give people a chance to appeal and get a fair hearing. The federal government will pay the State the reasonable cost of doing this work. Projects must be noticed to the planning agency at least 60 days before money is obligated, or they can be excluded from federal payment. If the agency timely warned that a project does not meet state plans, the agency must have consulted other planning bodies and offered a hearing before the Secretary excludes costs. The Secretary can override an exclusion if blocking the expense would hurt needed services or the program’s operation. If a facility leases instead of buys, the Secretary will subtract the excluded purchase-equivalent amount from rent and return-on-capital calculations. Anyone unhappy with the Secretary’s decision may ask for reconsideration within six months, but the decision cannot be reviewed by other administrative or court processes. A “capital expenditure” means a cost that is not an operating expense and either costs more than $600,000 (or a smaller State set amount), changes bed capacity, or greatly changes the facility’s services. Religious nonmedical health care institutions are not covered. The Secretary must have a national advisory council to help make rules and advise on policy.

Title 42, §1320a–1

The Public Health and Welfare — Source: USLM XML via OLRC

(a)The purpose of this section is to assure that Federal funds appropriated under subchapters XVIII and XIX are not used to support unnecessary capital expenditures made by or on behalf of health care facilities which are reimbursed under any of such subchapters and that, to the extent possible, reimbursement under such subchapters shall support planning activities with respect to health services and facilities in the various States.

(b)The Secretary, after consultation with the Governor (or other chief executive officer) and with appropriate local public officials, shall make an agreement with any State which is able and willing to do so under which a designated planning agency (which shall be an agency described in clause (ii) of subsection (d)(1)(B) that has a governing body or advisory board at least half of whose members represent consumer interests) will—

(1)make, and submit to the Secretary together with such supporting materials as he may find necessary, findings and recommendations with respect to capital expenditures proposed by or on behalf of any health care facility in such State within the field of its responsibilities,

(2)receive from other agencies described in clause (ii) of subsection (d)(1)(B), and submit to the Secretary together with such supporting material as he may find necessary, the findings and recommendations of such other agencies with respect to capital expenditures proposed by or on behalf of health care facilities in such State within the fields of their respective responsibilities, and

(3)establish and maintain procedures pursuant to which a person proposing any such capital expenditure may appeal a recommendation by the designated agency and will be granted an opportunity for a fair hearing by such agency or person other than the designated agency as the Governor (or other chief executive officer) may designate to hold such hearings,

(c)The Secretary shall pay any such State from the general fund in the Treasury, in advance or by way of reimbursement as may be provided in the agreement with it (and may make adjustments in such payments on account of overpayments or underpayments previously made), for the reasonable cost of performing the functions specified in subsection (b).

(d)(1)Except as provided in paragraph (2), if the Secretary determines that—

(A)neither the planning agency designated in the agreement described in subsection (b) nor an agency described in clause (ii) of subparagraph (B) of this paragraph had been given notice of any proposed capital expenditure (in accordance with such procedure or in such detail as may be required by such agency) at least 60 days prior to obligation for such expenditure; or

(B)(i)the planning agency so designated or an agency so described had received such timely notice of the intention to make such capital expenditure and had, within a reasonable period after receiving such notice and prior to obligation for such expenditure, notified the person proposing such expenditure that the expenditure would not be in conformity with the standards, criteria, or plans developed by such agency or any other agency described in clause (ii) for adequate health care facilities in such State or in the area for which such other agency has responsibility, and

(ii)the planning agency so designated had, prior to submitting to the Secretary the findings referred to in subsection (b)—

(I)consulted with, and taken into consideration the findings and recommendations of, the State planning agencies established pursuant to section 314(a) and 604(a) of the Public Health Service Act [42 U.S.C. 246(a), 291d(a)] (to the extent that either such agency is not the agency so designated) as well as the public or nonprofit private agency or organization responsible for the comprehensive regional, metropolitan area, or other local area plan or plans referred to in section 314(b) of the Public Health Service Act [42 U.S.C. 246(b)] and covering the area in which the health care facility proposing such capital expenditure is located (where such agency is not the agency designated in the agreement), or, if there is no such agency, such other public or nonprofit private agency or organization (if any) as performs, as determined in accordance with criteria included in regulations, similar functions, and

(II)granted to the person proposing such capital expenditure an opportunity for a fair hearing with respect to such findings;

(2)If the Secretary, after submitting the matters involved to the advisory council established or designated under subsection (i), determines that an exclusion of expenses related to any capital expenditure of any health care facility would discourage the operation or expansion of such facility which has demonstrated to his satisfaction proof of capability to provide comprehensive health care services (including institutional services) efficiently, effectively, and economically, or would otherwise be inconsistent with the effective organization and delivery of health services or the effective administration of subchapter XVIII or XIX, he shall not exclude such expenses pursuant to paragraph (1).

(e)Where a person obtains under lease or comparable arrangement any facility or part thereof, or equipment for a facility, which would have been subject to an exclusion under subsection (d) if the person had acquired it by purchase, the Secretary shall (1) in computing such person’s rental expense in determining the Federal payments to be made under subchapters XVIII and XIX with respect to services furnished in such facility, deduct the amount which in his judgment is a reasonable equivalent of the amount that would have been excluded if the person had acquired such facility or such equipment by purchase, and (2) in computing such person’s return on equity capital deduct any amount deposited under the terms of the lease or comparable arrangement.

(f)Any person dissatisfied with a determination by the Secretary under this section may within six months following notification of such determination request the Secretary to reconsider such determination. A determination by the Secretary under this section shall not be subject to administrative or judicial review.

(g)For the purposes of this section, a “capital expenditure” is an expenditure which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance and which (1) exceeds $600,000 (or such lesser amount as the State may establish), (2) changes the bed capacity of the facility with respect to which such expenditure is made, or (3) substantially changes the services of the facility with respect to which such expenditure is made. For purposes of clause (1) of the preceding sentence, the cost of the studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition, improvement, expansion, or replacement of the plant and equipment with respect to which such expenditure is made shall be included in determining whether such expenditure exceeds the dollar amount specified in clause (1).

(h)The provisions of this section shall not apply to a religious nonmedical health care institution (as defined in section 1395x(ss)(1) of this title).

(i)(1)The Secretary shall establish a national advisory council, or designate an appropriate existing national advisory council, to advise and assist him in the preparation of general regulations to carry out the purposes of this section and on policy matters arising in the administration of this section, including the coordination of activities under this section with those under other parts of this chapter or under other Federal or federally assisted health programs.

(2)The Secretary shall make appropriate provision for consultation between and coordination of the work of the advisory council established or designated under paragraph (1) and the Federal Hospital Council, the National Advisory Health Council, the Health Insurance Benefits Advisory Council, and other appropriate national advisory councils with respect to matters bearing on the purposes and administration of this section and the coordination of activities under this section with related Federal health programs.

(3)If an advisory council is established by the Secretary under paragraph (1), it shall be composed of members who are not otherwise in the regular full-time employ of the United States, and who shall be appointed by the Secretary without regard to the civil service laws from among leaders in the fields of the fundamental sciences, the medical sciences, and the organization, delivery, and financing of health care, and persons who are State or local officials or are active in community affairs or public or civic affairs or who are representative of minority groups. Members of such advisory council, while attending meetings of the council or otherwise serving on business of the council, shall be entitled to receive compensation at rates fixed by the Secretary, but not exceeding the maximum rate specified at the time of such service for grade GS–18 in section 5332 of title 5, including traveltime, and while away from their homes or regular places of business they may also be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of such title 5 for persons in the Government service employed intermittently.

(j)A capital expenditure made by or on behalf of a health care facility shall not be subject to review pursuant to this section if 75 percent of the patients who can reasonably be expected to use the service with respect to which the capital expenditure is made will be individuals enrolled in an eligible organization as defined in section 1395mm(b) of this title, and if the Secretary determines that such capital expenditure is for services and facilities which are needed by such organization in order to operate efficiently and economically and which are not otherwise readily accessible to such organization because—

(1)the facilities do not provide common services at the same site (as usually provided by the organization),

(2)the facilities are not available under a contract of reasonable duration,

(3)full and equal medical staff privileges in the facilities are not available,

(4)arrangements with such facilities are not administratively feasible, or

(5)the purchase of such services is more costly than if the organization provided the services directly.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Public Health Service Act, referred to in subsec. (b), is act July 1, 1944, ch. 373, 58 Stat. 682, which is classified generally to chapter 6A (201 et seq.) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 201 of this title and Tables.

Amendments

1997—Subsec. (h). Pub. L. 105–33 substituted “a religious nonmedical health care institution (as defined in section 1395x(ss)(1) of this title).” for “Christian Science sanatoriums operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.” 1984—Subsec. (b). Pub. L. 98–369, § 2354(a)(1), substituted a comma for the period at end of par. (1), and struck out “(or the Mental Retardation Facilities and Community Mental Health Centers

Construction

Act of 1963)” before “to meet the need” in provisions following par. (3). Subsec. (i)(3). Pub. L. 98–369, § 2354(a)(2), substituted “5703” for “5703(b)”. 1983—Subsec. (c). Pub. L. 98–21, § 607(a), substituted “the general fund in the Treasury” for “the Federal Hospital Insurance Trust Fund”. Subsec. (g). Pub. L. 98–21, § 607(b)(1), substituted “$600,000 (or such lesser amount as the State may establish)” for “$100,000” and Pub. L. 98–21, § 607(b)(1)(B), substituted “the dollar amount specified in clause (1)” for “$100,000” the second time it appeared. Subsec. (j). Pub. L. 98–21, § 607(c), added subsec. (j). 1982—Subsec. (d)(2). Pub. L. 97–248 amended directory language of Pub. L. 97–35, § 2193(c)(3)(B), to correct typographical error, and did not involve any change in text. See 1981 Amendment note below. 1981—Subsec. (a). Pub. L. 97–35, § 2193(c)(3)(A), substituted “subchapters XVIII and XIX” for “subchapters V, XVIII, and XIX”. Subsec. (d)(1). Pub. L. 97–35, § 2193(c)(3)(A), substituted in provision following subpar. (B)(ii)(II) “subchapters XVIII and XIX” for “subchapters V, XVIII, and XIX” in two places. Subsec. (d)(2). Pub. L. 97–35, § 2193(c)(3)(B), as amended by Pub. L. 97–248, § 137(a)(5), substituted “subchapter XVIII or XIX” for “subchapter V, XVIII, or XIX”. Subsec. (e). Pub. L. 97–35, § 2193(c)(3)(A), substituted “subchapters XVIII and XIX” for “subchapters V, XVIII, and XIX”. 1979—Pub. L. 96–32 amended directory language of Pub. L. 95–559 and required no change in text of section. See 1978 Amendment notes below. 1978—Subsecs. (a), (b). Pub. L. 95–559, § 14(b)(1), (2), as amended by Pub. L. 96–32, struck out references to health maintenance organizations wherever appearing. Subsec. (d). Pub. L. 95–559, § 14(b)(1), (3), as amended by Pub. L. 96–32, struck out references to health maintenance organizations wherever appearing and in par. (2) “or organization, or of any facility of such organization,” after “expansion of such facility”. 1973—Subsec. (d)(1). Pub. L. 93–233, § 18(z), inserted “or a fixed fee or negotiated rate” after “per capita” wherever appearing in last sentence. Subsec. (d)(2). Pub. L. 93–233, § 18(z–1), substituted “exclude” for “include” where last appearing.

Statutory Notes and Related Subsidiaries

Effective Date

of 1997 AmendmentAmendment by Pub. L. 105–33 effective Aug. 5, 1997, and applicable to items and services furnished on or after such date, with provision that Secretary of Health and Human Services issue

Regulations

to carry out such amendment by not later than July 1, 1998, see section 4454(d) of Pub. L. 105–33, set out as an

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note under section 1395i–5 of this title.

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of 1984 Amendment Pub. L. 98–369, div. B, title III, § 2354(e), July 18, 1984, 98 Stat. 1102, provided that: “(1) Except as provided in paragraph (2), the

Amendments

made by this section [amending this section and section 1316, 1320a–7a, 1320a–8, 1395f, 1395i, 1395i–2, 1395k, 1395l, 1395n, 1395p, 1395s to 1395z, 1395aa, 1395cc, 1395ff, 1395ii, 1395ll, 1395mm, 1395oo, 1395rr, and 1395ww of this title and section 162 of Title 26, Internal Revenue Code, and amending provisions set out as notes under section 1320c, 1395x, and 1395mm of this title] shall be effective on the date of the enactment of this Act [July 18, 1984]; but none of such

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shall be construed as changing or affecting any right, liability, status, or interpretation which existed (under the provisions of law involved) before that date. “(2) The

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made by paragraphs (1) [amending section 1395f of this title and provisions set out as a note under section 1395x of this title], (2) [amending section 1316 of this title], and (3) [amending provisions set out as notes under section 1320c and 1395mm of this title] of subsection (c) shall be effective as if they had been originally included in Public Laws 96–499, 97–35, and 97–248, respectively.”

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of 1982 AmendmentAmendment by Pub. L. 97–248 effective as if originally included as part of this section as this section was amended by the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97–35, see section 137(d)(2) of Pub. L. 97–248, set out as a note under section 1396a of this title.

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of 1981 Amendment, Savings, and Transitional ProvisionsFor

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, savings, and transitional provisions relating to amendment by Pub. L. 97–35, see section 2194 of Pub. L. 97–35, set out as a note under section 701 of this title.

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Pub. L. 92–603, title II, § 221(b), Oct. 30, 1972, 86 Stat. 1389, provided that: “The amendment made by subsection (a) [enacting this section] shall apply only with respect to a capital expenditure the obligation for which is incurred by or on behalf of a health care facility or health maintenance organization subsequent to whichever of the following is earlier: (A)

December 31, 1972, or (B) with respect to any State or any part thereof specified by such State, the last day of the calendar quarter in which the State requests that the amendment made by subsection (a) of this section [enacting this section] apply in such State or such part thereof.” Termination of Advisory CouncilsAdvisory councils in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is otherwise provided by law. Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is otherwise provided by law. See section 1001(2) and 1013 of Title 5, Government Organization and Employees. References in Other Laws to GS–16, 17, or 18 Pay RatesReferences in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5. Expenditures or Obligations of Health Care Facilities Providing Health Care Services Prior to

December 18, 1970; Limitations on Federal Participation Pub. L. 92–603, title II, § 221(d), Oct. 30, 1972, 86 Stat. 1389, provided that: “In the case of a health care facility providing health care services as of

December 18, 1970, which on such date is committed to a formal plan of expansion or replacement, the

Amendments

made by the preceding provisions of this section [enacting this section and amending section 705, 706, 709, 1395x, 1396a, and 1396b of this title] shall not apply with respect to such expenditures as may be made or obligations incurred for capital items included in such plan where preliminary expenditures toward the plan of expansion or replacement (including payments for studies, surveys, designs, plans, working drawings, specifications, and site acquisition, essential to the acquisition, improvement, expansion, or replacement of the health care facility or equipment concerned) of $100,000 or more, had been made during the three-year period ended December 17, 1970.”

§1320a–1 Limitation on use of Federal funds for capital expenditures

Summary

Title 42, §1320a–1

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