[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4796 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 4796

  To amend title XVIII of the Social Security Act with respect to the 
   application of Medicare secondary payer rules for certain claims.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 9, 2010

 Mr. Patrick J. Murphy of Pennsylvania (for himself and Mr. Tim Murphy 
 of Pennsylvania) introduced the following bill; which was referred to 
 the Committee on Ways and Means, and in addition to the Committee on 
Energy and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To amend title XVIII of the Social Security Act with respect to the 
   application of Medicare secondary payer rules for certain claims.

    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 ``Medicare Secondary Payer Enhancement 
Act of 2010''.

SEC. 2. CALCULATION AND DIRECT PAYMENT OF MSP CLAIMS.

    (a) Calculation and Direct Reimbursement of Conditional Payment for 
Settlement Purposes.--
            (1) Section 1862(b)(2)(B) of the Social Security Act (42 
        U.S.C. 1395y(b)(2)(B)) is amended by adding at the end the 
        following new clause:
                            ``(vii)(I) Voluntary calculation and 
                        payment of conditional payment.--In the case of 
                        a settlement, judgment, award, or other payment 
                        between a claimant and an applicable plan (as 
                        defined in paragraph (8)(F)) involving a 
                        payment made by the Secretary pursuant to 
                        clause (i) for items and services provided to 
                        the claimant, for purposes of determining the 
                        amount of reimbursement required under clause 
                        (ii) to the appropriate Trust Fund during the 
                        90-day period preceding the reasonably expected 
                        date of such settlement, judgment, award, or 
                        other payment, the claimant and plan may--
                                    ``(aa) in good faith calculate the 
                                amount of such reimbursement required 
                                based upon available billing data for 
                                such items and services provided; and
                                    ``(bb) reimburse such amount to the 
                                appropriate Trust Fund, in accordance 
                                with regulations promulgated by the 
                                Secretary.
                                With respect to a payment made under 
                                clause (i) for items and services 
                                provided to a claimant and subject to 
                                subclause (II), any reimbursement made 
                                in accordance with this subclause shall 
                                satisfy any obligation of the claimant 
                                and the applicable plan under this 
                                subsection.
                            ``(II) Secretary's ability to contest 
                        amount of payment.--In the case of a 
                        reimbursement made to the appropriate Trust 
                        Fund under subclause (I), during the 75-day 
                        period beginning on the date of such 
                        reimbursement, if the Secretary determines such 
                        reimbursement made is not the total amount owed 
                        under this subparagraph the Secretary shall 
                        have the right to contest the amount of such 
                        reimbursement made and to serve upon the 
                        claimant and applicable plan a final demand for 
                        the balance of the remaining amount so owed. 
                        The claimant or applicable plan may make a 
                        reimbursement to the appropriate Trust Fund in 
                        the amount of such balance determined by the 
                        Secretary or may pursue appeal of the amount of 
                        the reimbursement determined by the Secretary 
                        pursuant to the appeals process under clause 
                        (ix). In any such appeal, the burden of proof 
                        shall be on the claimant or applicable plan to 
                        demonstrate that the reimbursement made to the 
                        appropriate Trust fund under subclause (I) was 
                        correct.
                            ``(viii)(I) Request for final demand for 
                        reimbursement.--In the case of a settlement, 
                        judgment, award, or other payment between a 
                        claimant and an applicable plan (as defined in 
                        paragraph (8)(F)) involving a payment made by 
                        the Secretary pursuant to clause (i) for items 
                        and services provided to the claimant, the 
                        claimant or applicable plan may at any time 
                        beginning 120 days prior to the reasonably 
                        expected date of such settlement, judgment, 
                        award, or other payment, submit to the 
                        Secretary, in accordance with regulations to be 
                        promulgated by the Secretary, a request for a 
                        recovery demand letter for reimbursement 
                        required under clause (ii) of such payment. The 
                        Secretary shall have 60 days to respond to such 
                        request with such final demand. Not later than 
                        60 days after the date of receipt of such final 
                        demand, the claimant or applicable plan may 
                        reimburse the appropriate Trust Fund for such 
                        payment in the amount identified in such final 
                        demand, in accordance with regulations 
                        promulgated by the Secretary. With respect to a 
                        payment made under clause (i) for items and 
                        services provided to a claimant, any such 
                        reimbursement made in accordance with this 
                        subclause shall satisfy any obligations of the 
                        claimant and the applicable plan under this 
                        subsection.
                            ``(II) Failure of the secretary to provide 
                        final demand for conditional payment.--In the 
                        case that the Secretary fails to provide a 
                        final demand for any item or service subject to 
                        reimbursement required under clause (ii) in 
                        accordance with subclause (I), the claimant, 
                        applicable plan, or an entity that receives 
                        payment from an applicable plan shall not be 
                        liable for and shall not be obligated to make 
                        payment subject to this subsection for any item 
                        or service related to the request for final 
                        demand for reimbursement.
                    ``(ix) Right of appeal.--The Secretary shall 
                promulgate regulations establishing a right of appeal 
                and appeals process, with respect to any requirement 
                under clause (ii) for a payment made under this title 
                for an item or service under a primary plan, under 
                which the applicable plan involved, or an attorney, 
                agent, or third party administrator on behalf of such 
                applicable plan may appeal such requirement. Such right 
                of review shall--
                            ``(I) include review through an 
                        administrative law judge and administrative 
                        review board, and access to judicial review in 
                        the district court of the United States for the 
                        judicial district in which the appellant is 
                        located (or, in the case of an action brought 
                        jointly by more than one applicant, the 
                        judicial district in which the greatest number 
                        of applicants are located) or in the District 
                        Court for the District of Columbia; and
                            ``(II) be carried out in a manner similar 
                        to the appeals procedure used for purposes of 
                        subsection (a).''.
            (2) Conforming amendment.--Clause (ii) of such section is 
        amended by inserting after ``60-day'' the following ``(or in 
        the case of an applicable plan and reimbursement described in 
        clause (vii) or (viii), 90-day)''.

SEC. 3. THRESHOLD.

    (a) In General.--Section 1862(b)(2)(B)(ii) of the Social Security 
Act (42 U.S.C. 1395y(b)(2)(B)(ii)) is amended--
            (1) by striking ``(ii) repayment required.--A primary 
        plan'' and inserting the following:
                            ``(ii) Repayment required.--
                                    ``(I) In general.--A primary 
                                plan''; and
            (2) by adding at the end the following new subclause:
                                    ``(II) Exception.--Subclause (I) 
                                shall not apply with respect to the 
                                following payments under this title:
                                            ``(aa) Any settlement, 
                                        judgment, award, or other 
                                        payment by an applicable plan 
                                        constituting a total payment 
                                        obligation to a claimant of not 
                                        more than $5,000.
                                            ``(bb) Any settlement, 
                                        judgment, award, or other 
                                        payment by an applicable plan 
                                        involving the ongoing 
                                        responsibility for medical 
                                        payments not otherwise 
                                        addressed in subclause (I), of 
                                        not more than $5,000. For 
                                        purposes of this subclause and 
                                        with respect to a settlement, 
                                        judgment, award, or other 
                                        payment payments not otherwise 
                                        addressed in subclause (I) 
                                        involving the ongoing 
                                        responsibility for medical 
                                        payments, such payment shall 
                                        include only the cumulative 
                                        value of the medical payments 
                                        made and the purchase price of 
                                        any annuity or similar 
                                        instrument.
                                The amounts under this subclause shall 
                                be adjusted each year based on the 
                                percentage increase in the Consumer 
                                Price Index (rounded to the nearest 
                                multiple of $100) for the year 
                                involved.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply with respect to payments made on or after 3 months after the date 
of the enactment of this Act.

SEC. 4. REPORTING REQUIREMENT SAFE HARBORS.

    Section 1862(b)(8) of the Social Security Act (42 U.S.C. 
1395y(b)(8)) is amended--
            (1) in the first sentence of subparagraph (E)(i), by 
        striking ``shall be subject'' and all that follows through the 
        end of the sentence and inserting the following: ``may be 
        subject to a civil money penalty of up to $1,000 for each day 
        of noncompliance. The severity of each such penalty shall be 
        based on the intentional nature of the violation.''; and
            (2) by adding at the end the following new subparagraph:
                    ``(I) Safe harbors.--Not later than 60 days after 
                the date of the enactment of this subparagraph, the 
                Secretary shall publish a notice in the Federal 
                Register soliciting proposals, which will be accepted 
                during a 60-day period, for the creation of safe 
                harbors from sanctions imposed under subparagraph (E) 
                under which entities responsible for reporting 
                information under this paragraph will be deemed to have 
                complied with the reporting requirements under this 
                paragraph and will not be subject to such sanctions. 
                After considering the proposals submitted pursuant to 
                the preceding sentence, the Secretary, in consultation 
                with the Attorney General, shall publish in the Federal 
                Register, including a 60-day period for comment, 
                proposed safe harbors. After considering any public 
                comments received during such period, the Secretary 
                shall issue final rules establishing safe harbors from 
                penalties or other sanctions under subparagraph (E).''.

SEC. 5. USE OF SOCIAL SECURITY NUMBERS AND OTHER IDENTIFYING 
              INFORMATION IN REPORTING.

    Section 1862(b)(8)(B) of the Social Security Act (42 U.S.C. 
1395y(b)(8)(B)) is amended by adding at the end (after and below clause 
(ii)) the following sentence: ``Not later than one year after the date 
of enactment of the Medicare Secondary Payer Enhancement Act of 2010, 
the Secretary shall modify the reporting requirements under this 
paragraph so that entities responsible for reporting information under 
this paragraph are not required to access or report to the Secretary 
beneficiary social security numbers or health identification claim 
numbers.''.

SEC. 6. STATUTE OF LIMITATIONS.

    (a) In General.--Section 1862(b)(2)(B)(iii) of the Social Security 
Act (42 U.S.C. 1395y(b)(2)(B)(iii)) is amended by adding at the end the 
following sentence: ``Every action brought by the United States or an 
officer or agency thereof under this clause shall be barred unless the 
complaint is filed not later than three years after the date of the 
receipt of notice of a settlement or other payment giving rise to 
recovery of a payment made pursuant to paragraph (8).''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply with respect to actions brought on or after 6 months after the 
date of the enactment of this Act.

SEC. 7. USER FEE.

    Section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)) is 
amended by adding the following new paragraph:
            ``(9) User fees.--
                    ``(A) In general.--Beginning 90 days after the date 
                of the enactment of the Medicare Secondary Payer 
                Enhancement Act of 2010, and annually thereafter for 
                the 10-year period beginning on such date of enactment, 
                the Secretary shall assess and collect fees in 
                accordance with this paragraph as follows:
                            ``(i) Direct conditional payment 
                        reimbursement fee.--Each person or entity that 
                        submits a payment to fulfill the reimbursement 
                        requirement pursuant to paragraph (2)(B)(vii) 
                        shall be subject to a fee of $30 for each 
                        payment reimbursed to the Secretary.
                            ``(ii) Request for final demand of 
                        conditional payment fee.--Each person that 
                        submits a request for a recover demand letter 
                        of conditional payment under paragraph 
                        (2)(B)(viii) shall be subject to a fee of $30 
                        for each such request submitted to the 
                        Secretary. In the case of a person or entity 
                        that pays a fee under this clause, such person 
                        or entity shall not also be subject to the fee 
                        under clause (i).
                    ``(B) Inflation adjustment.--For fiscal year 2010 
                and subsequent fiscal years, the amount of the fees 
                specified in subparagraph (A) shall be adjusted by the 
                Secretary by notice, published in the Federal Register, 
                to reflect any percent changes in the Consumer Price 
                Index for all urban consumers (all items; U.S. city 
                average) for the 12 month period ending June 30 of the 
                preceding fiscal year.
                    ``(C) Collection of unpaid fees.--In any case where 
                the Secretary does not receive payment of a fee 
                assessed under subparagraph (A) by the date that is 30 
                days after the date such fee is due, such fee shall be 
                treated as a claim of the United States Government 
                subject to subchapter II of chapter 37 of title 31, 
                United States Code.''.
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