S. 945 Consumer Bankruptcy Reform Act of 1999
S.
945
Introduced May 3, 1999
by Sens. Richard Dubrin (D-Ill.), Patrick Leahy (D-Vt.),
Ted Kennedy (D-Mass.), Russ Feingold (D-Wisc.) and Paul Sarbanes
(D-Md.)
Be it enacted by the Senate and House of Representatives
of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title: This Act may be cited as the `Consumer Bankruptcy
Reform Act of 1999'.
(b) Table of Contents: The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--NEEDS-BASED BANKRUPTCY
Sec. 101. Conversion.
Sec. 102. Dismissal or conversion.
TITLE II--ENHANCED PROCEDURAL PROTECTIONS FOR
CONSUMERS
Sec. 201. Allowance of claims or interests.
Sec. 202. Exceptions to discharge.
Sec. 203. Effect of discharge.
Sec. 204. Automatic stay.
Sec. 205. Discharge.
Sec. 206. Discouraging predatory lending practices.
Sec. 207. Enhanced disclosure for credit extensions secured by dwelling.
Sec. 208. Dual-use debit card.
Sec. 209. Enhanced disclosures under an open end credit plan.
Sec. 210. Violations of the automatic stay.
Sec. 211. Discouraging abusive reaffirmation practices.
Sec. 212. Sense of Congress regarding the homestead exemption.
Sec. 213. Encouraging creditworthiness.
Sec. 214. Treasury Department study regarding security interests under
an open end credit
plan.
TITLE III--IMPROVED PROCEDURES FOR EFFICIENT
ADMINISTRATION OF THE BANKRUPTCY SYSTEM
Sec. 301. Notice of alternatives.
Sec. 302. Fair treatment of secured creditors under chapter 13.
Sec. 303. Discouragement of bad faith repeat filings.
Sec. 304. Timely filing and confirmation of plans under chapter 13.
Sec. 305. Application of the codebtor stay only when the stay protects
the debtor.
Sec. 306. Improved bankruptcy statistics.
Sec. 307. Audit procedures.
Sec. 308. Creditor representation at first meeting of creditors.
Sec. 309. Fair notice for creditors in chapter 7 and 13 cases.
Sec. 310. Stopping abusive conversions from chapter 13.
Sec. 311. Prompt relief from stay in individual cases.
Sec. 312. Dismissal for failure to timely file schedules or provide
required information.
Sec. 313. Adequate time for preparation for a hearing on confirmation of
the plan.
Sec. 314. Discharge under chapter 13.
Sec. 315. Nondischargeable debts.
Sec. 316. Credit extensions on the eve of bankruptcy presumed
nondischargeable.
Sec. 317. Definition of household goods and antiques.
Sec. 318. Relief from stay when the debtor does not complete intended
surrender of
consumer debt collateral.
Sec. 319. Adequate protection of lessors and purchase money secured
creditors.
Sec. 320. Limitation.
Sec. 321. Miscellaneous improvements.
Sec. 322. Bankruptcy judgeships.
Sec. 323. Definition of domestic support obligation.
Sec. 324. Priorities for claims for domestic support obligations.
Sec. 325. Requirements to obtain confirmation and discharge in cases
involving domestic
support obligations.
Sec. 326. Exceptions to automatic stay in domestic support obligation
proceedings.
Sec. 327. Nondischargeability of certain debts for alimony, maintenance,
and support.
Sec. 328. Continued liability of property.
Sec. 329. Protection of domestic support claims against preferential
transfer motions.
Sec. 330. Protection of retirement savings in bankruptcy.
Sec. 331. Additional amendments to title 11, United States Code.
Sec. 332. Debt limit increase.
Sec. 333. Elimination of requirement that family farmer and spouse
receive over 50 percent
of income from farming
operation in year prior to bankruptcy.
Sec. 334. Prohibition of retroactive assessment of disposable income.
Sec. 335. Amendment to section 1325 of title 11, United States Code.
Sec. 336. Protection of savings earmarked for the postsecondary
education of children.
TITLE IV--FINANCIAL INSTRUMENTS
Sec. 401. Bankruptcy Code amendments.
Sec. 402. Damage measure.
Sec. 403. Asset-backed securitizations.
Sec. 404. Prohibition on certain actions for failure to incur finance
charges.
Sec. 405. Fees arising from certain ownership interests.
Sec. 406. Bankruptcy fees.
Sec. 407. Applicability.
TITLE V--ANCILLARY AND OTHER CROSS-BORDER CASES
Sec. 501. Amendment to add chapter 6 to title 11, United States Code.
Sec. 502. Amendments to other chapters in title 11, United States Code.
TITLE VI--MISCELLANEOUS
Sec. 601. Executory contracts and unexpired leases.
Sec. 602. Expedited appeals of bankruptcy cases to courts of appeals.
Sec. 603. Creditors and equity security holders committees.
Sec. 604. Repeal of sunset provision.
Sec. 605. Cases ancillary to foreign proceedings.
Sec. 606. Limitation.
Sec. 607. Amendment to section 546 of title 11, United States Code.
Sec. 608. Amendment to section 330(a) of title 11, United States Code.
TITLE VII--TECHNICAL CORRECTIONS
Sec. 701. Adjustment of dollar amounts.
Sec. 702. Extension of time.
Sec. 703. Who may be a debtor.
Sec. 704. Penalty for persons who negligently or fraudulently prepare
bankruptcy
petitions.
Sec. 705. Limitation on compensation of professional persons.
Sec. 706. Special tax provisions.
Sec. 707. Effect of conversion.
Sec. 708. Automatic stay.
Sec. 709. Allowance of administrative expenses.
Sec. 710. Priorities.
Sec. 711. Exemptions.
Sec. 712. Exceptions to discharge.
Sec. 713. Effect of discharge.
Sec. 714. Protection against discriminatory treatment.
Sec. 715. Property of the estate.
Sec. 716. Preferences.
Sec. 717. Postpetition transactions.
Sec. 718. Technical amendment.
Sec. 719. Disposition of property of the estate.
Sec. 720. General provisions.
Sec. 721. Appointment of elected trustee.
Sec. 722. Abandonment of railroad line.
Sec. 723. Contents of plan.
Sec. 724. Discharge under chapter 12.
Sec. 725. Extensions.
Sec. 726. Bankruptcy cases and proceedings.
Sec. 727. Knowing disregard of bankruptcy law or rule.
Sec. 728. Rolling stock equipment.
Sec. 729. Curbing abusive filings.
Sec. 730. Study of operation of title 11 of the United States Code with
respect to small
businesses.
Sec. 731. Transfers made by nonprofit charitable corporations.
Sec. 732. Effective date; application of amendments.
TITLE I--NEEDS-BASED BANKRUPTCY
SEC. 101. CONVERSION.
Section 706(c) of title 11, United States Code, is amended by inserting
`or consents to'
after `requests'.
SEC. 102. DISMISSAL OR CONVERSION.
(a) In General: Section 707 of title 11, United States Code, is
amended--
(1) by striking the section heading and inserting the following:
`707. Dismissal of a case or conversion to a case under chapter 13';
and
(2) in subsection (b)--
(A) by inserting `(1)' after `(b)';
(B) in paragraph (1), as redesignated by subparagraph (A) of this
paragraph--
(i) in the first sentence--
(I) by striking `but not' and inserting `or';
(II) by inserting `, or, with the debtor's consent, convert such a case
to a case under
chapter 13,' after `consumer debts'; and
(III) by striking `substantial abuse' and inserting `abuse'; and
(ii) by striking `There shall be a presumption in favor of granting the
relief requested
by the debtor.'; and
(C) by adding at the end the following:
`(2) In considering under paragraph (1) whether the granting of relief
would be an abuse
of the provisions of this chapter, the
court shall consider whether--
`(A) under section 1325(b)(1), on the basis of the current income of the
debtor, the
debtor could pay an amount greater than or
equal to 30 percent of unsecured claims that are not considered to be
priority claims (as
determined under subchapter I of
chapter 5); or
`(B) the debtor filed a petition for the relief in bad faith.
`(3)(A) If a panel trustee appointed under section 586(a)(1) of title 28
brings a motion
for dismissal or conversion under this
subsection and the court grants that motion and finds that the action of
the counsel for
the debtor in filing under this chapter was
not substantially justified, the court shall order the counsel for the
debtor to reimburse
the trustee for all reasonable costs in
prosecuting the motion, including reasonable attorneys' fees.
`(B) If the court finds that the attorney for the debtor violated Rule
9011, at a minimum,
the court shall order--
`(i) the assessment of an appropriate civil penalty against the counsel
for the debtor;
and
`(ii) the payment of the civil penalty to the panel trustee or the
United States trustee.
`(C) In the case of a petition referred to in subparagraph (B), the
signature of an
attorney shall constitute a certificate that the
attorney has--
`(i) performed a reasonable investigation into the circumstances that
gave rise to the
petition; and
`(ii) determined that the petition--
`(I) is well grounded in fact; and
`(II) is warranted by existing law or a good faith argument for the
extension,
modification, or reversal of existing law and does
not constitute an abuse under paragraph (1).
`(4)(A) Except as provided in subparagraph (B) and paragraph (5), the
court may award a
debtor all reasonable costs in
contesting a motion brought by a party in interest (other than a panel
trustee or United
States trustee) under this subsection
(including reasonable attorneys' fees) if--
`(i) the court does not grant the motion; and
`(ii) the court finds that--
`(I) the position of the party that brought the motion was not
substantially justified; or
`(II) the party brought the motion solely for the purpose of coercing a
debtor into
waiving a right guaranteed to the debtor under
this title.
`(B) A party in interest that has a claim of an aggregate amount less
than $1,000 shall
not be subject to subparagraph (A).
`(5)(A) Only the judge, United States trustee, bankruptcy administrator,
or panel trustee
may bring a motion under this
subsection if the debtor and the debtor's spouse combined, as of the
date of the order for
relief, have current monthly total
income equal to or less than the national median household monthly
income calculated on a
monthly basis for a household of
equal size.
`(B) For purposes of subparagraph (A), for a household of more than 4
individuals, the
median monthly income for that
household shall be--
`(1) the median monthly income of a household of 4 individuals; plus
`(2) $583 for each additional member of that household.'.
(b) Clerical Amendment: The table of sections for chapter 7 of title 11,
United States
Code, is amended by striking the item
relating to section 707 and inserting the following:
`707. Dismissal of a case or conversion to a case under chapter 13.'.
TITLE II--ENHANCED PROCEDURAL PROTECTIONS FOR
CONSUMERS
SEC. 201. ALLOWANCE OF CLAIMS OR INTERESTS.
Section 502 of title 11, United States Code, is amended by adding at the
end the
following:
`(k)(1) The court may award the debtor reasonable attorneys' fees and
costs if, after an
objection is filed by a debtor, the
court--
`(A)(i) disallows the claim; or
`(ii) reduces the claim by an amount greater than 20 percent of the
amount of the initial
claim filed by a party in interest; and
`(B) finds the position of the party filing the claim is not
substantially justified.
`(2) If the court finds that the position of a claimant under this
section is not
substantially justified, the court may, in addition to
awarding a debtor reasonable attorneys' fees and costs under paragraph
(1), award such
damages as may be required by the
equities of the case.'.
SEC. 202. EXCEPTIONS TO DISCHARGE.
Section 523 of title 11, United States Code, is amended--
(1) in subsection (a)(2)(A), by striking `a false representation' and
inserting `a
material false representation upon which the
defrauded person justifiably relied'; and
(2) by striking subsection (d) and inserting the following:
`(d)(1) Subject to paragraph (3), if a creditor requests a determination
of
dischargeability of a consumer debt under this section
and that debt is discharged, the court shall award the debtor reasonable
attorneys' fees
and costs.
`(2) In addition to making an award to a debtor under paragraph (1), if
the court finds
that the position of a creditor in a
proceeding covered under this section is not substantially justified,
the court may award
reasonable attorneys' fees and costs
under paragraph (1) and such damages as may be required by the equities
of the case.
`(3)(A) A creditor may not request a determination of dischargeability
of a consumer debt
under subsection (a)(2) if--
`(i) before the filing of the petition, the debtor made a good faith
effort to negotiate a
reasonable alternative repayment schedule
(including making an offer of a reasonable alternative repayment
schedule); and
`(ii) that creditor refused to negotiate an alternative payment
schedule, and that refusal
was not reasonable.
`(B) For purposes of this paragraph, the debtor shall have the burden of
proof of
establishing that--
`(i) an offer made by that debtor under subparagraph (A)(i) was
reasonable; and
`(ii) the refusal to negotiate by the creditor involved to was not
reasonable.'.
SEC. 203. EFFECT OF DISCHARGE.
Section 524 of title 11, United States Code, is amended by adding at the
end the
following:
`(i) The willful failure of a creditor to credit payments received under
a plan confirmed
under this title (including a plan of
reorganization confirmed under chapter 11) in the manner required by the
plan (including
crediting the amounts required under
the plan) shall constitute a violation of an injunction under subsection
(a)(2).
`(j) An individual who is injured by the failure of a creditor to comply
with the
requirements for a reaffirmation agreement under
subsections (c) and (d), or by any willful violation of the injunction
under subsection
(a)(2), shall be entitled to recover--
`(1) the greater of--
`(A)(i) the amount of actual damages; multiplied by
`(ii) 3; or
`(B) $5,000; and
`(2) costs and attorneys' fees.'.
SEC. 204. AUTOMATIC STAY.
Section 362(h) of title 11, United States Code, is amended to read as
follows:
`(h)(1) An individual who is injured by any willful violation of a stay
provided in this
section shall be entitled to recover--
`(A) actual damages; and
`(B) reasonable costs, including attorneys' fees.
`(2) In addition to recovering actual damages, costs, and attorneys'
fees under paragraph
(1), an individual described in
paragraph (1) may recover punitive damages in appropriate
circumstances.'.
SEC. 205. DISCHARGE.
Section 727 of title 11, United States Code, is amended--
(1) in subsection (c), by adding at the end the following:
`(3)(A) A creditor may not request a determination of dischargeability
of a consumer debt
under subsection (a) if--
`(i) before the filing of the petition, the debtor made a good faith
effort to negotiate a
reasonable alternative repayment schedule
(including making an offer of a reasonable alternative repayment
schedule); and
`(ii) that creditor refused to negotiate an alternative payment
schedule, and that refusal
was not reasonable.
`(B) For purposes of this paragraph, the debtor shall have the burden of
proof of
establishing that--
`(i) an offer made by that debtor under subparagraph (A)(i) was
reasonable; and
`(ii) the refusal to negotiate by the creditor involved to was not
reasonable.'; and
(2) by adding at the end the following:
`(f)(1) The court may award the debtor reasonable attorneys' fees and
costs in any case in
which a creditor files a motion to
deny relief to a debtor under this section and that motion--
`(A) is denied; or
`(B) is withdrawn after the debtor has replied.
`(2) If the court finds that the position of a party filing a motion
under this section is
not substantially justified, the court may
assess against the creditor such damages as may be required by the
equities of the case.'.
SEC. 206. DISCOURAGING PREDATORY LENDING PRACTICES.
Section 502(b) of title 11, United States Code, is amended--
(1) in paragraph (8), by striking `or' at the end;
(2) in paragraph (9), by striking the period at the end and inserting `;
or'; and
(3) by adding at the end the following:
`(10) the claim is based on a secured debt if the creditor has failed to
comply with the
requirements of subsection (a), (b), (c),
(d), (e), (f), (g), (h), or (i) of section 129 of the Truth in Lending
Act (15 U.S.C.
1639).'.
SEC. 207. ENHANCED DISCLOSURE FOR CREDIT EXTENSIONS SECURED BY DWELLING.
(a) Open-End Credit Extensions:
(1) Credit applications: Section 127A(a)(13) of the Truth in Lending Act
(15 U.S.C.
1637a(a)(13)) is amended--
(A) by striking `consultation of tax advisor: A statement that the' and
inserting the
following: `tax deductibility: A statement
that--
`(A) the'; and
(B) by striking the period at the end and inserting the following: `;
and
`(B) in any case in which the extension of credit exceeds the fair
market value of the
dwelling, the interest on the portion of the
credit extension that is greater than the fair market value of the
dwelling is not tax
deductible for Federal income tax purposes.'.
(2) Credit advertisements: Section 147(b) of the Truth in Lending Act
(15 U.S.C. 1665b(b))
is amended--
(A) by striking `If any' and inserting the following:
`(1) In general: If any'; and
(B) by adding at the end the following:
`(2) Credit in excess of fair market value: Each advertisement described
in subsection (a)
that relates to an extension of
credit that may exceed the fair market value of the dwelling shall
include a clear and
conspicuous statement that--
`(A) the interest on the portion of the credit extension that is greater
than the fair
market value of the dwelling is not tax
deductible for Federal income tax purposes; and
`(B) the consumer may want to consult a tax advisor for further
information regarding the
deductibility of interest and charges.'.
(b) Non-Open End Credit Extensions:
(1) Credit applications: Section 128 of the Truth in Lending Act (15
U.S.C. 1638) is
amended--
(A) in subsection (a), by adding at the end the following:
`(15) In the case of a consumer credit transaction that is secured by
the principal
dwelling of the consumer, in which the
extension of credit may exceed the fair market value of the dwelling, a
clear and
conspicuous statement that--
`(A) the interest on the portion of the credit extension that is greater
than the fair
market value of the dwelling is not tax
deductible for Federal income tax purposes; and
`(B) the consumer should consult a tax advisor for further information
regarding the
deductibility of interest and charges.'; and
(B) in subsection (b), by adding at the end the following:
`(3) In the case of a credit transaction described in paragraph (15) of
subsection (a),
disclosures required by that paragraph
shall be made to the consumer at the time of application for such
extension of credit.'.
(2) Credit advertisements: Section 144 of the Truth in Lending Act (15
U.S.C. 1664) is
amended by adding at the end the
following:
`(e) Each advertisement to which this section applies that relates to a
consumer credit
transaction that is secured by the principal
dwelling of a consumer in which the extension of credit may exceed the
fair market value
of the dwelling shall clearly and
conspicuously state that--
`(1) the interest on the portion of the credit extension that is greater
than the fair
market value of the dwelling is not tax
deductible for Federal income tax purposes; and
`(2) the consumer may want to consult a tax advisor for further
information regarding the
deductibility of interest and charges.'.
(c) Effective Date: This section and the amendments made by this section
shall take effect
1 year after the date of enactment of
this Act.
SEC. 208. DUAL-USE DEBIT CARD.
(a) Consumer Liability:
(1) In general: Section 909 of the Electronic Fund Transfer Act (15
U.S.C. 1693g) is
amended--
(A) by redesignating subsections (b) through (e) as subsections (d)
through (g),
respectively;
(B) in subsection (a)--
(i) by redesignating paragraphs (1) and (2) as subparagraphs (A) and
(B), respectively,
and indenting appropriately;
(ii) by inserting `Cards Necessitating Unique Identifier:
`(1) In general: ' after `(a)';
(iii) by striking `other means of access can be identified as the person
authorized to use
it, such as by signature, photograph,'
and inserting `other means of access can be identified as the person
authorized to use it
by a unique identifier, such as a
photograph, retina scan,'; and
(iv) by striking `Notwithstanding the foregoing,' and inserting the
following:
`(2) Notification: Notwithstanding paragraph (1),'; and
(C) by inserting after subsection (a) the following new subsections:
`(b) Cards Not Necessitating Unique Identifier: A consumer shall be
liable for an
unauthorized electronic fund transfer only
if--
`(1) the liability is not in excess of $50;
`(2) the unauthorized electronic fund transfer is initiated by the use
of a card that has
been properly issued to a consumer other
than the person making the unauthorized transfer as a means of access to
the account of
that consumer for the purpose of
initiating an electronic fund transfer;
`(3) the unauthorized electronic fund transfer occurs before the card
issuer has been
notified that an unauthorized use of the card
has occurred or may occur as the result of loss, theft, or otherwise;
and
`(4) such unauthorized electronic fund transfer did not require the use
of a code or other
unique identifier (other than a
signature), such as a photograph, fingerprint, or retina scan.
`(c) Notice of Liability and Responsibility To Report Loss of Card,
Code, or Other Means
of Access: No consumer
shall be liable under this title for any unauthorized electronic fund
transfer unless the
consumer has received in a timely manner
the notice required under section 905(a)(1), and any subsequent notice
required under
section 905(b) with regard to any
change in the information which is the subject of the notice required
under section
905(a)(1).'.
(2) Conforming amendment: Section 905(a)(1) of the Electronic Fund
Transfer Act (15 U.S.C.
1693c(a)(1)) is amended to
read as follows:
`(1) the liability of the consumer for any unauthorized electronic fund
transfer and the
requirement for promptly reporting any
loss, theft, or unauthorized use of a card, code, or other means of
access in order to
limit the liability of the consumer for any
such unauthorized transfer;'.
(b) Validation Requirement for Dual-Use Debit Cards:
(1) In general: Section 911 of the Electronic Fund Transfer Act (15
U.S.C. 1693i) is
amended--
(A) by redesignating subsection (c) as subsection (d); and
(B) by inserting after subsection (b) the following new subsection:
`(c) Validation Requirement: No person may issue a card described in
subsection (a), the
use of which to initiate an electronic
fund transfer does not require the use of a code or other unique
identifier other than a
signature (such as a fingerprint or retina
scan), unless--
`(1) the requirements of paragraphs (1) through (4) of subsection (b)
are met; and
`(2) the issuer has provided to the consumer a clear and conspicuous
disclosure that use
of the card may not require the use of
such code or other unique identifier.'.
(2) Technical and conforming amendment: Section 911(d) of the Electronic
Fund Transfer Act
(15 U.S.C. 1993i(d)) (as
redesignated by subsection (a)(1) of this section) is amended by
striking `For the purpose
of subsection (b)' and inserting `For
purposes of subsections (b) and (c)'.
SEC. 209. ENHANCED DISCLOSURES UNDER AN OPEN END CREDIT PLAN.
(a) Amendments to the Truth in Lending Act:
(1) Enhanced disclosure of repayment terms:
(A) In general: Section 127(b) of the Truth in Lending Act (15 U.S.C.
1637(b)) is amended
by adding at the end the
following:
`(11)(A) In a clear and conspicuous manner, repayment information that
would apply to the
outstanding balance of the
consumer under the credit plan, including--
`(i) the required minimum monthly payment on that balance, represented
as both a dollar
figure and a percentage of that
balance;
`(ii) the number of months (rounded to the nearest month) that it would
take to pay the
entire amount of that current balance if
the consumer pays only the required minimum monthly payments and if no
further advances
are made;
`(iii) the total cost to the consumer, including interest and principal
payments, of
paying that balance in full if the consumer pays
only the required minimum monthly payments and if no further advances
are made; and
`(iv) the following statement: `If your current rate is a temporary
introductory rate,
your total costs may be higher.'.
`(B) In making the disclosures under subparagraph (A) the creditor shall
apply the annual
interest rate that applies to that
balance with respect to the current billing cycle for that consumer in
effect on the date
on which the disclosure is made.'.
(B) Publication of model forms: Not later than 180 days after the date
of enactment of
this Act, the Board of Governors of the
Federal Reserve System shall publish model disclosure forms in
accordance with section 105
of the Truth in Lending Act for the
purpose of compliance with section 127(b)(11) of the Truth in Lending
Act, as added by
this paragraph.
(C) Civil liability: Section 130(a) of the Truth in Lending Act (15
U.S.C. 1640(a)) is
amended, in the undesignated paragraph
following paragraph (4), by striking the second sentence and inserting
the following: `In
connection with the disclosures referred
to in subsections (a) and (b) of section 127, a creditor shall have a
liability determined
under paragraph (2) of this subsection
only for failing to comply with the requirements of section 125, 127(a),
or of paragraph
(4), (5), (6), (7), (8), (9), (10), or (11)
of section 127(b), or for failing to comply with disclosure requirements
under State law
for any term or item that the Board has
determined to be substantially the same in meaning under section
111(a)(2) as any of the
terms or items referred to in section
127(a), or paragraph (4), (5), (6), (7), (8), (9), (10), or (11) of
section 127(b).'.
(2) Disclosures in connection with solicitations:
(A) In general: Section 127(c)(1)(B) of the Truth in Lending Act (15
U.S.C. 1637(c)(1)(B))
is amended by adding at the end
the following:
`(iv) Credit worksheet: An easily understandable credit worksheet
designed to aid
consumers in determining their ability to
assume more debt, including consideration of the personal expenses of
the consumer and a
simple formula for the consumer to
determine whether the assumption of additional debt is advisable.
`(v) Basis of preapproval: In any case in which the application or
solicitation states
that the consumer has been preapproved
for an account under an open end consumer credit plan, the following
statement must appear
in a clear and conspicuous manner:
`Your preapproval for this credit card does not mean that we have
reviewed your individual
financial circumstances. You should
review your own budget before accepting this offer of credit.'.
`(vi) Availability of credit report: That the consumer is entitled to a
copy of his or her
credit report in accordance with the Fair
Credit Reporting Act.'.
(B) Publication of model forms: Not later than 180 days after the date
of enactment of
this Act, the Board of Governors of the
Federal Reserve System shall publish model disclosure forms in
accordance with section 105
of the Truth in Lending Act for the
purpose of compliance with section 127(c)(1)(B) of the Truth in Lending
Act, as amended by
this paragraph.
(b) Effective Date: This section and the amendments made by this section
shall take effect
on January 1, 2001.
SEC. 210. VIOLATIONS OF THE AUTOMATIC STAY.
Section 362(a) of title 11, United States Code, is amended--
(1) in paragraph (7), by striking `and' at the end;
(2) in paragraph (8), by striking the period and inserting `; and';
(3) by adding at the end the following:
`(9) any communication threatening a
S. 255 Home Health Integrity Preservation Act of 1999
S 255 IS
January 20, 1999
Mr. GRASSLEY (for himself and Mr. BREAUX) introduced the following bill; which was read twice and referred to the Committee on Finance
- Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
- (a) SHORT TITLE- This Act may be cited as the `Home Health
Integrity Preservation Act of 1999'.
- (b) TABLE OF CONTENTS- The table of contents of this Act is as
follows:
- Sec. 1. Short title; table of contents.
- Sec. 2. Additional conditions of participation for home
health agencies.
- Sec. 3. Surveyor training in reimbursement and coverage
policies.
- Sec. 4. Surveys and reviews.
- Sec. 5. Prior patient load.
- Sec. 6. Establishment of standards and procedures to improve
quality of services.
- Sec. 7. Notification of availability of a home health
agency's most recent survey as part of discharge planning
process.
- Sec. 8. Home health integrity task force.
- Sec. 9. Application of certain provisions of the bankruptcy
code.
- Sec. 10. Study and report to Congress.
- Sec. 11. Effective date.
SEC. 2. ADDITIONAL CONDITIONS OF PARTICIPATION FOR HOME HEALTH AGENCIES.
- (a) QUALIFICATIONS OF MANAGING EMPLOYEES- Section 1891(a) of
the Social Security Act (42 U.S.C. 1395bbb(a)) is amended by adding at
the end the following:
- `(7) The agency shall have--
- `(A) sufficient knowledge, as attested by the managing
employees (as defined in section 1126(b)) of the agency (pursuant to
subsection (c)(2)(C)(iv)(II)) using standards established by the
Secretary, of the requirements for reimbursement under this title,
coverage criteria and claims procedures, and the civil and criminal
penalties for noncompliance with such requirements; and
- `(B) managing employees with sufficient prior education
or work experience, according to standards determined by the Secretary,
in the delivery of health care.'.
- (b) COMPLIANCE PROGRAM- Section 1891(a) of the Social Security
Act (42 U.S.C. 1395bbb(a)) (as amended by subsection (a)) is amended by
adding at the end the following:
- `(8) The agency has developed and implemented a fraud and
abuse compliance program.'.
- (c) AVAILABILITY OF SURVEY- Section 1891(a) of the Social
Security Act (42 U.S.C. 1395bbb(a)) (as amended by subsection (b)) is
amended by adding at the end the following:
- `(9) The agency, before the agency provides any home health
services to a beneficiary, makes available to the beneficiary or the
representative of the beneficiary a summary of the pertinent findings
(including a list of any deficiencies) of the most recent survey of the
agency relating to the compliance of such agency. Such summary shall be
provided in a standardized format and may, at the discretion of the
Secretary, also include other information regarding the agency's
operations that are of potential interest to beneficiaries, such as the
number of patients served by the agency.'.
- (d) NOTICE OF NEW HOME HEALTH SERVICE, NEW BRANCH OFFICE, AND
NEW JOINT VENTURE- Section 1891(a)(2) of the Social Security Act (42
U.S.C. 1395bbb(a)(2)) is amended to read as follows:
- `(2)(A) The agency notifies the agency's fiscal
intermediary and the State entity responsible for the licensing or
certification of the agency--
- `(i) of a change in the persons with an ownership or
control interest (as defined in section 1124(a)(3)) in the
agency,
- `(ii) of a change in the persons who are officers,
directors, agents, or managing employees (as defined in section 1126(b))
of the agency,
- `(iii) of a change in the corporation, association, or
other company responsible for the management of the
agency,
- `(iv) that the agency is providing a category of
skilled service that it was not providing at the time of the agency's
most recent standard survey,
- `(v) that the agency is operating a new branch office
that was not in operation at the time of the agency's most recent
standard survey, and
- `(vi) that the agency is involved in a new joint
venture with other health care providers or other business
entities.
- `(B) The notice required under subparagraph (A) shall be
provided--
- `(i) for a change described in clauses (i), (ii), and
(iii) of such subparagraph, within 30 calendar days of the time of the
change and shall include the identity of each new person or company
described in the previous sentence,
- `(ii) for a change described in clause (iv) of such
subparagraph, within 30 calendar days of the time the agency begins
providing the new service and shall include a description of the
service,
- `(iii) for a change described in clause (v) of such
subparagraph, within 30 calendar days of the time the new branch office
begins operations and shall include the location of the office and a
description of the services that are being provided at the office,
and
- `(iv) for a change described in clause (vi) of such
subparagraph, within 30 calendar days of the time the agency enters into
the joint venture agreement and shall include a description of the joint
venture and the participants in the joint venture.'.
SEC. 3. SURVEYOR TRAINING IN REIMBURSEMENT AND COVERAGE POLICIES.
- Section 1891(d)(3) of the Social Security Act (42 U.S.C.
1395bbb(d)(3)) is amended--
- (1) by striking `relating to the performance' and inserting
`relating to--
- `(A) the performance';
- (2) by striking the period at the end and inserting `;
and'; and
- (3) by adding at the end the following:
- `(B) requirements for reimbursement and coverage of
services under this title.'.
SEC. 4. SURVEYS AND REVIEWS.
- (a) ADDITIONAL REQUIREMENTS FOR SURVEY- Section 1891(c)(2)(C)
of the Social Security Act (42 U.S.C. 1395bbb(c)(2)(C)) is
amended--
- (1) in clause (i)(I)--
- (A) by striking `purpose of evaluating' and inserting
`purpose of--
- `(aa) evaluating'; and
- (B) by adding at the end the following:
- `(bb) evaluating whether the individuals are
homebound for purposes of qualifying for receipt of benefits for home
health services under this title; and';
- (2) in clause (ii), by striking `and' at the end;
- (3) in clause (iii), by striking the period at the end and
inserting `; and'; and
- (4) by adding at the end the following:
- `(iv) shall include--
- `(I) an assessment of whether the agency is in
compliance with all of the conditions of participation and requirements
specified in or pursuant to section 1861(o), this section, and this
title;
- `(II) an assessment that the managing employees (as
defined in section 1126(b)) of the agency have attested in writing to
having sufficient knowledge, as determined by the Secretary, of the
requirements for reimbursement under this title, coverage criteria and
claims procedures, and the civil and criminal penalties for
noncompliance with such requirements; and
- `(III) a review of the services provided by
subcontractors of the agency to ensure that such services are being
provided in a manner consistent with the requirements of this
title.'.
- (b) ADDITIONAL EVENTS TRIGGERING A SURVEY- Section
1891(c)(2)(B) of the Social Security Act (42 U.S.C. 1395bbb(c)(2)(B)) is
amended--
- (1) by striking `and' at the end of clause (i);
- (2) by striking the period at the end of clause (ii) and
inserting a comma; and
- (3) by adding at the end the following:
- `(iii) shall be conducted not less than annually
for the first 2 years after the initial standard survey of the
agency,
- `(iv) after the agency's first 2 years of
participation under this title, shall be conducted within 90 calendar
days of the date that the agency notifies the Secretary that it is
providing a category of skilled service that the agency was not
providing at the time of the agency's most recent standard
survey,
- `(v) if the agency is operating a new branch office
that was not in operation at the time of the agency's most recent
standard survey, shall be conducted within the 12-month period following
the date that the new branch office began operations to ensure that such
office is providing quality care and that it is appropriately classified
as a branch office, and shall include direct scrutiny of the operations
of the branch office, and
- `(vi) shall be conducted on randomly selected
agencies on an occasional basis, with the number of such surveys to be
determined by the Secretary.'.
- (c) REVIEW BY FISCAL INTERMEDIARY- Section 1816 of the Social
Security Act (42 U.S.C. 1395h) is amended by adding at the end the
following:
- `(m) An agreement with an agency or organization under this
section shall require that the agency or organization conduct a review
of the overall business structure of a home health agency submitting a
claim for reimbursement for home health services, including any related
organizations of the home health agency.'.
SEC. 5. PRIOR PATIENT LOAD.
- Section 1891 of the Social Security Act (42 U.S.C. 1395bbb) is
amended by adding at the end the following:
- `(h) PRIOR PATIENT LOAD-
- `(1) IN GENERAL- The Secretary shall not enter into an
agreement for the first time with a home health agency to provide items
and services under this title unless the Secretary determines that,
before the date the agreement is entered into, the agency--
- `(A) had been in operation for at least 60 calendar
days; and
- `(B) had at least 10 patients during that period of
prior operation.
- `(2) EXCEPTIONS-
- `(A) BENEFICIARY ACCESS- If the Secretary determines
appropriate, the Secretary may waive the requirements of paragraph (1)
in order to establish or maintain beneficiary access to home health
services in an area.
- `(B) CHANGE OF OWNERSHIP- The requirements of paragraph
(1) shall not apply to a home health agency at the time of a change in
ownership of such agency.'.
SEC. 6. ESTABLISHMENT OF STANDARDS AND PROCEDURES TO IMPROVE QUALITY OF SERVICES.
- (a) IN GENERAL- Section 1891 of the Social Security Act (42
U.S.C. 1395bbb) (as amended by section 5) is amended by adding at the
end the following:
- `(i) ESTABLISHMENT OF STANDARDS AND PROCEDURES-
- `(1) SCREENING OF EMPLOYEES- The Secretary shall establish
procedures to improve the background screening performed by a home
health agency on individuals that the agency is considering hiring as
home health aides (as defined in subsection
(a)(3)(E)) and licensed health professionals (as defined in subsection (a)(3)(F)).
- `(2) COST REPORTS- The Secretary shall establish additional
procedures regarding the requirement for attestation of cost reports to
ensure greater accountability on the part of a home health agency and
its managing employees (as defined in section 1126(b)) for the accuracy
of the information provided to the Secretary in any such cost
reports.
- `(3) MONITORING AGENCY AFTER EXTENDED SURVEY- The Secretary
shall establish procedures to ensure that a home health agency that is
subject to an extended (or partial extended) survey is closely monitored
from the period immediately following the extended survey through the
agency's subsequent standard survey to ensure that the agency is in
compliance with all the conditions of participation and requirements
specified in or pursuant to section 1861(o), this section, and this
title.
- `(4) ADDITIONAL AUDITS-
- `(A) IN GENERAL-
- `(i) STANDARDS- The Secretary shall establish
objective standards regarding the determination of--
- `(I) whether an agency is a home health agency
described in subparagraph (B); and
- `(II) the circumstances that trigger an audit
for a home health agency described in subparagraph (B), and the content
of such an audit.
- `(ii) INFORMATION- In establishing standards under
clause (i), the Secretary shall ensure that the individuals performing
the audits under this section are provided with the necessary
information, including information from intermediaries, carriers, and
law enforcement sources, in order to determine if a particular home
health agency is an agency described in subparagraph (B) and whether the
circumstances triggering an audit for such an agency has
occurred.
- `(B) AGENCY DESCRIBED- A home health agency is
described in this subparagraph if it is an agency that
has--
- `(i) experienced unusually rapid growth as compared
to other home health agencies in the area and in the
country;
- `(ii) had unusually high utilization patterns as
compared to other home health agencies in the area and in the
country;
- `(iii) unusually high costs per patient as compared
to other home health agencies in the area and in the
country;
- `(iv) unusually high levels of overpayment or
coverage denials as compared to other home health agencies in the area
and in the country; or
- `(v) operations that otherwise raise concerns such
that the Secretary determines that an audit is
appropriate.
- `(5) BRANCH OFFICES-
- `(A) SURVEYS- The Secretary shall establish standards
for periodic surveys of branch offices of a home health agency in order
to assess whether the branch offices meet the Secretary's national
criteria for branch office designation and for quality of care. Such
surveys shall include home visits to beneficiaries served by the branch
office (but only with the consent of the beneficiary).
- `(B) UNIFORM NATIONAL DEFINITION- The Secretary shall
establish a uniform national definition of a branch office of a home
health agency.
- `(6) CERTAIN QUALIFICATIONS OF MANAGING EMPLOYEES- The
Secretary shall establish standards regarding the knowledge and prior
education or work experience that a managing employee (as defined in
section 1126(b)) of an agency must possess in order to comply with the
requirements described in subsection (a)(7).
- `(7) CLAIMS PROCESSING-
- `(A) IN GENERAL- The Secretary shall establish
standards to improve and strengthen the procedures by which claims for
reimbursement by home health agencies are identified as being
fraudulent, wasteful, or abusive.
- `(B) PROCEDURES- The standards established by the
Secretary pursuant to subparagraph (A) shall include, to the extent
practicable, standards for a minimum number of--
- `(i) intensive focused medical reviews of the
services provided to beneficiaries by an agency;
- `(ii) interviews with beneficiaries, employees of
the agency, and other individuals providing services on behalf of the
agency; and
- `(iii) random spot checks of visits to a
beneficiary's home by employees of the agency (but only with the consent
of the beneficiary).
- `(C) REPORT TO CONGRESS- Not later than 90 days after
the date of enactment of the Home Health Integrity Preservation Act of
1999, the Secretary shall submit a report to Congress containing a
detailed description of--
- `(i) the current levels of activity by the
Secretary with regard to the reviews, interviews, and spot checks
described in subparagraph (B); and
- `(ii) the Secretary's plans to increase those
levels pursuant to the procedures described in subparagraphs (A) and
(B).
- `(8) EXPANSION OF FINANCIAL STATEMENT- The Secretary shall
establish procedures to expand the financial statement audit process to
include compliance and integrity reviews.'.
- (b) EFFECTIVE DATE- By not later than 180 calendar days after
the date of enactment of this Act, the Secretary shall establish the
standards and procedures described in paragraphs (1) through (8) of
section 1891(i) of the Social Security Act (42 U.S.C. 1395bbb(i)) (as
added by subsection (a)) by regulation or other sufficient means.
SEC. 7. NOTIFICATION OF AVAILABILITY OF A HOME HEALTH AGENCY'S MOST RECENT SURVEY AS PART OF DISCHARGE PLANNING PROCESS.
- Section 1861(ee)(2)(D) of the Social Security Act (42 U.S.C.
1395x(ee)(2)(D)) (as amended by section 4321(a) of the Balanced Budget
Act of 1997) is amended--
- (1) by striking `including the availability' and inserting
`including--
- `(i) the availability'; and
- (2) by inserting before the period the following: `;
and
- `(ii) the availability of (and procedures for obtaining
from a home health agency) a summary document described in section
1891(a)(9)'.
SEC. 8. HOME HEALTH INTEGRITY TASK FORCE.
- (a) ESTABLISHMENT- The Secretary of Health and Human Services
(in this section referred to as the `Secretary') shall establish within
the Office of the Inspector General of the Department of Health and
Human Services
a home health integrity task force (in this section referred to as the `Task Force').
- (b) DIRECTOR- The Inspector General of the Department of Health
and Human Services shall appoint the Director of the Task Force.
- (c) DUTIES- The Task Force shall target, investigate, and
pursue any available civil or criminal actions against individuals who
organize, direct, finance, or are otherwise engaged in fraud in the
provision of home health services (as defined in section 1861(m) of the
Social Security Act (42 U.S.C. 1395x(m))) under the medicare program
under such Act.
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