[Congressional Record Volume 157, Number 155 (Monday, October 17, 2011)]
[Senate]
[Pages S6602-S6605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. WYDEN (for himself, Mr. Portman, Mr. Nelson of Nebraska,
and Mr. Burr):
S. 1718. A bill to amend title XVIII of the Social Security Act with
respect to the application of Medicare secondary payer rules for
certain claims; to the Committee on Finance.
Mr. WYDEN. Mr. President, I rise today to advocate for increasing
Medicare efficiency and effectiveness by introducing the Strengthening
Medicare and Repaying Taxpayers, SMART, Act of 2011 with my colleagues,
Senators Portman, Ben Nelson, and Burr.
The SMART Act initiates common sense changes to the Medicare
Secondary Payer, MSP, system, as a means of achieving that efficiency
and effectiveness. This system kicks in whenever a Medicare beneficiary
is injured and another party accepts responsibility to pay for the
costs associated with that injury, making Medicare the ``secondary
payer.'' For example, if a Medicare beneficiary is injured when she
slips in a store the store reimburses her for the costs of the injury.
In this scenario the store becomes the party responsible for paying the
costs associated with the injury, and if Medicare pays any of the costs
associated with the injury, it has to be reimbursed. The purpose of
this system is to ensure that Medicare does not pay claims that a third
party is liable for. Although seemingly obvious, the system currently
on the books is set up in manner that is unnecessarily burdensome to
all parties involved in these claims.
At the heart of the problem is the lack of financial disclosure by
the Center for Medicare and Medicaid Services, CMS. Under the current
MSP system, CMS does not calculate the MSP amount owed to the Trust
Fund until after a claim has settled, making it impossible for the
parties to factor that amount into the settlement process. Even after
the claim has been settled and reported to Medicare, it can take months
for the parties to find out how much money is actually owed in
reimbursement.
Does this make any sense at all? Of course not. The beneficiary has
no idea what portion of the settlement will be left after the payment
is made to Medicare, the third party responsible for the bill has no
way of knowing whether or not the amount settled upon will be
sufficient to fully reimburse Medicare, and the Medicare Trust Fund is
denied much needed funds because of the uncertain settlement process.
It is clear that the repercussions of our inefficient MSP system are
widespread. Individual beneficiaries and businesses large and small are
left in the dark. On top of that, State and local governments that
settle personal injury and worker compensation claims also fall victim
to these long, drawn out settlements which costs a significant amount
of money at a time when budgets are especially tight.
The legislation my colleagues and I are introducing today provides a
straightforward and commonsense solution. The SMART Act would create a
more effective and efficient MSP process for all parties involved,
while speeding the return of Medicare Trust Fund dollars. This
legislation will improve the flow of information so that beneficiaries
and companies may determine how much money is owed to the Trust Fund
before they settle a claim. This change will enable parties to
calculate the MSP amount they owe and reimburse Medicare directly, and
it will provide CMS with tools to ensure that Medicare is fully
reimbursed.
Medicare beneficiaries and businesses will no longer be forced to
play this real life version of ``Price is Right,'' where Medicare plays
the Bob Barker/Drew Carey role and the other parties are forced to
guess at how much is owed.
The SMART Act will also preserve taxpayer resources by ensuring that
Medicare does not spend more money pursuing these cases than the claim
is actually worth. There have been reports of MSP demands as low as
$2--CMS should not be spending more money on postage than the Medicare
Trust Fund will receive in reimbursement. Surely we can create a
sensible threshold that will protect Medicare's interest and prevent
parties from gaming the system without wasting government money chasing
down elderly beneficiaries to collect a handful of quarters.
In addition to streamlining the MSP system the SMART Act will protect
consumers by eliminating the requirement for businesses to collect
Social Security Numbers or Medicare numbers during the claims process.
This is in line with a recently launched Medicare campaign which
encourages beneficiaries not to give out these numbers as an important
tool in fighting health care fraud and identity theft. We should not be
sending seniors mixed messages or punishing businesses that are unable
to obtain this information, despite their best efforts, from
understandably reticent seniors.
The SMART Act will provide much needed clarity to the MSP system and
will relieve the burden that is currently placed on all parties
involved in the process.
I urge my colleagues to join us in cosponsoring this important
legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1718
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.
[[Page S6603]]
``(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.
Mr. PORTMAN. Mr. President, I am pleased to introduce the
Strengthening Medicare and Repaying Taxpayers, SMART, Act with Senators
Wyden, Burr and Ben Nelson. This bi-partisan effort will help
strengthen and protect Medicare by ensuring greater reliability and
efficiency of Medicare reimbursements. The SMART Act proposes common-
sense solutions to problems in the current Medicare Secondary Payer,
MSP, system, at no cost to the American taxpayer. With Washington's sky
high debt and deficit, we need to do everything we can to ensure that
vital entitlement programs, such as Medicare, are cost effective and
working for the very people they were designed to help.
Under the MSP program, if a Medicare beneficiary is injured by a
third party and a settlement is pursued as a result of that injury, the
third party is responsible for paying for the individual's medical
expenses. If Medicare, now the ``secondary payer,'' pays any of the
costs associated with the injury, it is entitled to reimbursement.
Numerous problems exist with the current MSP system; each of these
are addressed by the SMART Act.
Under current law, Medicare does not have a pathway to disclose their
MSP amount until after a case has been settled or adjusted--which
creates an uncertainty that impedes beneficiaries and third parties
from reaching a legal settlement. This legislation creates a process
that allows the Centers for Medicare and Medicaid Services, CMS, to
disclose this information before settlement, so it can be factored into
the settlement.
Second, Medicare often spends more money pursuing an MSP payment than
they actually receive in payment. This bill requires that Medicare no
longer pursue MSP claims that do not cover their own expenses.
Additionally, the MSP system requires complex and extensive reporting
requirements from those who settle a claim involving Medicare. If all
required information is not 100 percent accurate and on-time, the
company is fined $1,000 per claim, per day. The SMART Act provides CMS
with leeway to issue smaller fines and provides safe harbor to protect
companies that make
[[Page S6604]]
good faith efforts to comply fully and on-time.
Furthermore, under these requirements, claim beneficiaries must
submit their Social Security numbers or Health Insurance Claim Numbers,
Medicare Numbers, to the settlement company so they can be reported to
CMS, generating serious privacy concerns. This legislation directs
Medicare to establish an alternative method of identifying individuals,
to mitigate concerns about identity theft and Medicare fraud.
Finally, there is currently no clear statute of limitations on MSP
claims. This bill sets a 3-year statute of limitations for most claims.
The SMART Act is a common-sense bi-partisan bill that will make the
MSP system work more efficiently, reduce unnecessary burdens and waste,
and speed the repayment of amounts owed to the Medicare Trust Fund.
______
By Mrs. FEINSTEIN:
S. 1719. A bill to clarify that schools and local educational
agencies participating in the school lunch program under the Richard B.
Russell National School Lunch Act are authorized to donate excess food
to local food banks or charitable organizations; to the Committee on
Agriculture, Nutrition, and Forestry.
Mrs. FEINSTEIN. Mr. President. I rise to introduce legislation which
would provide clarification to schools and school districts that wish
to donate excess food to food banks and charitable organizations.
In 1996, Congress passed the Bill Emerson Good Samaritan Food
Donation Act to encourage the donation of food and grocery products to
nonprofit organizations such as homeless shelters, soup kitchens and
churches for distribution to needy individuals. The law limits the
liability of donors to instances of gross negligence or intentional
misconduct. However, because the law does not explicitly include
schools as having limited liability, many schools and school districts
have been hesitant to donate excess food.
This legislation would amend the Richard B. Russell National School
Lunch Act to clarify that schools and local education agencies
participating in the school lunch program under the act are authorized
to donate excess food to local food banks or charitable organizations.
It would clarify that schools and local education agencies making
donations would be exempt from civil and criminal liability to the
extent provided under the Bill Emerson Good Samaritan Act.
Schools interested in donating excess food would be encouraged and
better informed with the passage of this legislation. The Secretary of
Education would provide schools with guidance to assist schools with
food donations.
Given the current economy and high unemployment rate, more and more
individuals are becoming dependent on food banks and charities. This
legislation would help to address the needs of those living in poverty
by increasing support for food donations.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1719
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 ``School Food Recovery Act''.
SEC. 2. FOOD DONATION PROGRAM.
Section 9 of the Richard B. Russell National School Lunch
Act (42 U.S.C. 1758) is amended by adding at the end the
following:
``(l) Food Donation Program.--
``(1) In general.--Each school and local educational agency
participating in the school lunch program under this Act may
donate any food not consumed under such program to eligible
local food banks or charitable organizations.
``(2) Guidance.--
``(A) In general.--Not later than 180 days after the date
of the enactment of this subsection, the Secretary shall
develop and publish guidance to schools and local educational
agencies participating in the school lunch program under this
Act to assist such schools and local educational agencies in
donating food under this subsection.
``(B) Updates.--The Secretary shall update such guidance as
necessary.
``(3) Liability.--Any school or local educational agency
making donations pursuant to this subsection shall be exempt
from civil and criminal liability to the extent provided
under the Bill Emerson Good Samaritan Food Donation Act (42
U.S.C. 1791).
``(4) Definition.--In this subsection, the term `eligible
local food banks or charitable organizations' means any food
bank or charitable organization which is exempt from tax
under section 501(c)(3) of the Internal Revenue Code of 1986
(26 U.S.C. 501(c)(3)).''.
______
By Mrs. BOXER:
S. 1722. A bill to improve early education, and for other purposes;
to the Committee on Health, Education, Labor, and Pensions.
Mrs. BOXER. Mr. President, today I rise to introduce the Early
Language Proficiency Act, legislation critical to preparing young
children across our country to be successful in school.
Studies have shown that children who participate in pre-kindergarten
programs are less likely to be held back a grade, show greater learning
retention and initiative, have better social skills, are more
enthusiastic about school, and are more likely to have good attendance
records.
Experts agree that an early education experience is one of the most
effective strategies for improving later school performance. The
National Research Council reported that prekindergarten educational
opportunities are critical in developing early language and literacy
skills and preventing reading difficulties in young children.
This bill is a step forward in making a national commitment to giving
all children access to high quality pre-kindergarten programs that have
been proven to have a solid impact on a child's success later in school
and in life.
The Early Language Proficiency Act, would authorize pre-kindergarten
English language instruction as an allowable use of Federal funding.
With over 5 million English language learning students nationwide, 1.5
million of who reside in my home State of in California, allowing
school districts to use Federal funds to prepare young English learners
for grade school is critical.
In addition, this legislation will help local school districts use
federal funds to provide prekindergarten services to all young children
they serve. Although school districts may already use Federal funds
from Title I of the Elementary and Secondary Education Act for early
education, many school districts are either unaware of or are uncertain
of how to use this authority. The Early Language Proficiency Act would
ensure that states provide proper guidance to local schools about how
to use Title I funds to educate pre-kindergarteners.
The future of our Nation's economy depends on the next generation of
workers, and high-quality early childhood education is key to preparing
them for their careers. In the long run, pre-kindergarten programs pay
for themselves. Decades of research have proven that early education
programs yield between $7 to $16 for every dollar invested.
Ensuring that all students start school ready to learn is essential
to ensuring that we meet our goal of having the best-educated workforce
and the highest proportion of college graduates in the world by 2020. I
urge my colleagues to support this legislation.
______
By Mr. McCONNELL:
S. 1726. A bill to repeal the imposition of withholding on certain
payments made to vendors by government entities; read the first time.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1726
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 ``Withholding Tax Relief Act
of 2011''.
SEC. 2. REPEAL OF IMPOSITION OF WITHHOLDING ON CERTAIN
PAYMENTS MADE TO VENDORS BY GOVERNMENT
ENTITIES.
The amendment made by section 511 of the Tax Increase
Prevention and Reconciliation Act of 2005 is repealed and the
Internal Revenue Code of 1986 shall be applied as if such
amendment had never been enacted.
SEC. 3. RESCISSION OF UNSPENT FEDERAL FUNDS TO OFFSET LOSS IN
REVENUES.
(a) In General.--Notwithstanding any other provision of
law, of all available unobligated funds, $30,000,000,000 in
appropriated
[[Page S6605]]
discretionary funds are hereby permanently rescinded.
(b) Implementation.--The Director of the Office of
Management and Budget shall determine and identify from which
appropriation accounts the rescission under subsection (a)
shall apply and the amount of such rescission that shall
apply to each such account. Not later than 60 days after the
date of the enactment of this Act, the Director of the Office
of Management and Budget shall submit a report to the
Secretary of the Treasury and Congress of the accounts and
amounts determined and identified for rescission under the
preceding sentence.
(c) Exception.--This section shall not apply to the
unobligated funds of the Department of Defense or the
Department of Veterans Affairs.
____________________