I 111th CONGRESS 2d Session H. R. 4796 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.

1.

Short title

This Act may be cited as the Medicare Secondary Payer Enhancement Act of 2010.

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).

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.

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). .

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..

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.

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. .