[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1718 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1718

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 17, 2011

 Mr. Wyden (for himself, Mr. Portman, Mr. Nelson of Nebraska, and Mr. 
Burr) introduced the following bill; which was read twice and referred 
                      to the Committee on Finance

_______________________________________________________________________

                                 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Strengthening 
Medicare And Repaying Taxpayers Act of 2011''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Expediting Secretarial determination of reimbursement amount to 
                            improve program efficiency.
Sec. 3. Fiscal efficiency and revenue neutrality.
Sec. 4. Reporting requirement safe harbors.
Sec. 5. Use of social security numbers and other identifying 
                            information in reporting.
Sec. 6. Statute of limitations.

SEC. 2. EXPEDITING SECRETARIAL DETERMINATION OF REIMBURSEMENT AMOUNT TO 
              IMPROVE PROGRAM EFFICIENCY.

    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) Timely notice of conditional 
                        payment reimbursement.--
                                    ``(I) Request for conditional 
                                payment statement.--In the case of a 
                                payment made by the Secretary pursuant 
                                to clause (i) for items and services 
                                provided to the claimant, the claimant 
                                or applicable plan (as defined in 
                                paragraph (8)(F)) may at any time 
                                beginning 120 days before the 
                                reasonably expected date of a 
                                settlement, judgment, award, or other 
                                payment, notify the Secretary that a 
                                payment is reasonably expected, and 
                                request from the Secretary, in 
                                accordance with regulations, a 
                                statement of the conditional payment 
                                reimbursement amount (in this clause 
                                referred to as a `statement of 
                                reimbursement amount') for any payments 
                                subject to reimbursement required under 
                                clause (ii). A claimant or applicable 
                                plan may request a statement under this 
                                subclause only once with respect to 
                                such settlement, judgment, award, or 
                                other payment.
                                    ``(II) Secretarial response.--
                                            ``(aa) In general.--Not 
                                        later than 65 days after the 
                                        date of receipt of a request 
                                        under subclause (I), the 
                                        Secretary shall respond to such 
                                        request with a statement of 
                                        reimbursement amount, which 
                                        shall constitute the 
                                        conditional payment subject to 
                                        recovery under clause (ii) 
                                        related to such settlement, 
                                        judgment, award or other 
                                        payment.
                                            ``(bb) Case of secretarial 
                                        failure.--Subject to subclause 
                                        (III), if the Secretary fails 
                                        to provide such a statement of 
                                        reimbursement amount for items 
                                        or services subject to 
                                        reimbursement required under 
                                        clause (ii) in accordance with 
                                        this subclause, the claimant, 
                                        applicable plan, or an entity 
                                        that receives payment from an 
                                        applicable plan shall provide 
                                        an additional notice to the 
                                        Secretary of such failure. If 
                                        the Secretary fails to provide 
                                        a statement of reimbursement 
                                        amount within 30 days of the 
                                        date of such additional notice, 
                                        the claimant, applicable plan, 
                                        and 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 section 
                                        for any item or service related 
                                        to the request unless the 
                                        Secretary demonstrates (in 
                                        accordance with regulations) 
                                        that the failure was justified 
                                        due to exceptional 
                                        circumstances (as defined in 
                                        such regulations). Such 
                                        regulations shall define 
                                        exceptional circumstances in a 
                                        manner so that not more than 1 
                                        percent of the repayment 
                                        obligations under this 
                                        subclause would qualify as 
                                        exceptional circumstances.
                                    ``(III) Notice to secretary.--In 
                                the event that a settlement, judgment, 
                                award, or other payment does not occur 
                                (or is no longer reasonably expected to 
                                occur) within 120 days of the date of 
                                an original request under subclause (I) 
                                with respect to a settlement, judgment, 
                                award, or other payment, the claimant 
                                or the applicable plan shall timely 
                                notify the Secretary, and the Secretary 
                                shall be exempt from any obligation 
                                under subclause (II) with respect to a 
                                statement of reimbursement amount 
                                relating to such settlement, judgment, 
                                award, or other payment related to the 
                                notice.
                                    ``(IV) Effective date.--The 
                                Secretary shall promulgate final 
                                regulations to carry out this clause 
                                not later than 9 months after the date 
                                of the enactment of this clause. Such 
                                regulations shall require the 
                                disclosure from a claimant or 
                                applicable plan of no more than the 
                                minimum amount of information necessary 
                                for the Secretary to determine the 
                                amount of conditional payment subject 
                                to recovery under clause (ii) related 
                                to such settlement, judgment, award, or 
                                other payment, and may require partial 
                                disclosure (but may not require full 
                                disclosure) of social security numbers 
                                or health identification claim numbers.
                            ``(viii) Right of appeal.--The Secretary 
                        shall promulgate regulations establishing a 
                        right of appeal and appeals process, with 
                        respect to any determination under this 
                        subsection 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 determination. Such right of appeal 
                        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 under 
                                regulations for hearing procedures 
                                respecting notices of determinations of 
                                nonconformance of group health plans 
                                under this subsection.''.

SEC. 3. FISCAL EFFICIENCY AND REVENUE NEUTRALITY.

    (a) In General.--Section 1862(b) of the Social Security Act (42 
U.S.C. 1395y(b)) is amended--
            (1) in paragraph (2)(B)(ii), by striking ``A primary plan'' 
        and inserting ``Subject to paragraph (9), a primary plan''; and
            (2) by adding at the end the following new paragraph:
            ``(9) Exception.--
                    ``(A) In general.--Clause (ii) of paragraph (2)(B) 
                and any reporting required by paragraph (8) shall not 
                apply with respect to any settlement, judgment, award, 
                or other payment by an applicable plan constituting a 
                total payment obligation to a claimant of not more than 
                the single threshold amount calculated by the Chief 
                Actuary of the Centers for Medicare & Medicaid Services 
                under subparagraph (B) for the year involved.
                    ``(B) Annual computation of thresholds.--Not later 
                than November 15 before each year, the Chief Actuary of 
                the Centers for Medicare & Medicaid Services shall 
                calculate and publish a single threshold amount for 
                settlements, judgments, awards or other payments for 
                conditional payment obligations arising from each of 
                liability insurance (including self-insurance), 
                workers' compensation laws or plans, and no fault 
                insurance subject to this section for that year. Each 
                such annual single threshold amount for a year shall be 
                set such that the expected average amount to be 
                credited to the Medicare trust funds of collections of 
                conditional payments from such settlements, judgments, 
                awards, or other payments for each of liability 
                insurance (including self-insurance), workers' 
                compensation laws or plans, and no fault insurance 
                subject to this section shall equal the expected 
                average cost of collection incurred by the United 
                States (including payments made to contractors) for a 
                conditional payment from each of liability insurance 
                (including self-insurance), workers' compensation laws 
                or plans, and no fault insurance subject to this 
                section for the year. The Chief Actuary shall include, 
                as part of such publication for a year--
                            ``(i) the expected average cost of 
                        collection incurred by the United States 
                        (including payments made to contractors) for a 
                        conditional payment arising from each of 
                        liability insurance (including self-insurance), 
                        no fault insurance, and workers' compensation 
                        laws or plans; and
                            ``(ii) a summary of the methodology and 
                        data used by such Chief Actuary in computing 
                        the threshold amount and such average cost of 
                        collection.
                    ``(C) Treatment of ongoing expenses.--For purposes 
                of this paragraph and with respect to a settlement, 
                judgment, award, or other payment not otherwise 
                addressed in clause (ii) of paragraph (2)(B) 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.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply to years beginning more than 4\1/2\ 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 knowing, willful, and repeated nature of the 
        violation.''; and
            (2) by adding at the end the following new subparagraph:
                                    ``(I) Establishment of 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 specification of 
                                practices for which sanctions will not 
                                be imposed under subparagraph (E), 
                                including for good faith efforts to 
                                identify a beneficiary pursuant to this 
                                paragraph under an applicable entity 
                                responsible for reporting information, 
                                under which 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 so submitted, the Secretary, 
                                in consultation with the Attorney 
                                General, shall publish in the Federal 
                                Register, including a 60-day period for 
                                comment, proposed specified practices 
                                for which such sanctions will not be 
                                imposed. After considering any public 
                                comments received during such period, 
                                the Secretary shall issue final rules 
                                specifying such practices.''.

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: ``Not later than 1 year after the date of 
enactment of this sentence, the Secretary shall modify the reporting 
requirements under this paragraph so that an applicable plan in 
complying with such requirements is permitted but not required to 
access or report to the Secretary beneficiary social security account 
numbers or health identification claim numbers.''.

SEC. 6. STATUTE OF LIMITATIONS.

    (a) In General.--Section 1862(b) of the Social Security Act (42 
U.S.C. 1395y(b)) is amended--
            (1) in paragraph (2)(B)(iii), by adding at the end the 
        following new sentence: ``An action may not be brought by the 
        United States under this clause with respect to payment owed 
        unless the complaint is filed not later than 3 years after the 
        date of the receipt of notice of a settlement, judgment, award, 
        or other payment made pursuant to paragraph (8) relating to 
        such payment owed.''; and
            (2) in paragraph (8)(E)(i), by adding at the end the 
        following new sentence: ``A civil money penalty may not be 
        imposed under this clause with respect to failure to submit 
        required information unless service of notice of intention to 
        impose the penalty is provided not later than 3 years after the 
        date by which the information was required to be submitted.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply with respect to actions brought and penalties sought on or after 
6 months after the date of the enactment of this Act.
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