Spring 2015 // Journal of American Law 19
Website Access to Download Final Conditional Payment
Amount
Section 201 of the SMART Act provided that a Medicare ben-
efciary or RRE can download a statement of conditional pay-
ments made by Medicare. Te downloaded statement can serve
as the fnal conditional payment if (1) the statement was down-
loaded during the protected period, i.e., the period afer Medi-
care's response period until the notifed date of the expected
resolution of the claim or lawsuit; (2) the settlement, judgment,
award, or other payment occurs within the protected period;
(3) the statement was downloaded within three business days of
the settlement, judgment, award, or other payment; and (4) the
statement was the last statement downloaded from the website.
Right of Appeal
Te SMART Act also established a right of appeal in Section
201 of the act. Section 201 required Medicare to establish an
appellate process for which an RRE—or an attorney, agent,
or third party administrator of the RRE—could appeal
Medicare's determinations regarding its entitlement to reim-
bursement for conditional payments. Te RRE must provide
notice to the Medicare benefciary or claimant regarding its
intent to appeal. Te specifc details of the appellate process,
including the time limit to fle the notice of appeal, were not
outlined in the Smart Act. However, these appellate rights
are applicable only when CMS attempts to collect reimburse-
ment from the RRE.
Statute of Limitations
In addition, the SMART Act provided for a statute of limita-
tions for Medicare's right of reimbursement. Te SMART Act
implemented a three-year statute of limitations from the date
of reporting under the MMSEA for Medicare to fle suit for
recovery under the MSP.
17
Minimum Reporting and Reimbursement Treshold
Te SMART Act required that the Health and Human Ser-
vices Secretary, beginning in 2014, calculate a threshold
amount for reporting and reimbursement. Tis regulation was
implemented for the purpose of making certain that the feder-
al government did not expend more funds pursuing a second-
ary payer claim than it would recover or be reimbursed. On
Feb. 28, 2014, CMS issued an alert regarding a change in the
reporting threshold for certain liability settlements, judgment,
awards, and other payments.
18
17
Id.
18
Centers for Medicare and Medicaid Services, (Feb.
28, 2014), http://www.cms.gov/Medicare/Coordina-
tion-of-Benefts-and-Recovery/Mandatory-Insurer-Report-
ing-For-Non-Group-Health-Plans/Downloads/New-Downloads/
Alert-Change-in-Reporting-Treshold-for-Certain-Liabil-
ity-Insurance-including-Self-Insurance-Settlements-Judg-
ments-Awards-or-Other-Payments.pdf
MMSEA Section 111: Change in Reporting Treshold for
Certain Liability (Including Self-Insurance) Settlements,
Judgments, Awards, or Other Payments as of Feb. 28, 2014
Reporting Re-
quired for Cu-
mulative TPOC
Amount(s)
Reporting
Optional
for Cumula-
tive TPOC
Amount(s)
Most Recent
TPOC Date
Is On or
Between
Reporting
Required
Quarter
Beginning
Greater than
$2,000
Greater
than $300
through
$2,000
October
1, 2013 to
September
30, 2014
January 1,
2014
Greater than
$1,000
N/A October 1,
2014 or afer
January 1,
2015
Permissive/Discretionary Penalty Provision
Moreover, the SMART Act amended the mandatory penalty pro-
vision of Section 111 and allowed discretion in the imposition
of civil penalties for failure to comply, replacing the mandated
language with the permissive "may be subject" to a civil monetary
penalty of up to $1,000 for each day per each claimant.
Elimination of the Required Use of SSN and HICN
More importantly, the SMART Act directed Medicare to elim-
inate the required use of SSNs and HICNs in the MSP pro-
cess.
19
Pursuant to Section 204 of the SMART Act, within 18
months of its enactment, CMS is required to modify MMSEA
Section 111 Reporting Requirements so that an RRE is no lon-
ger required to report an individual's HICN or full SSN. As
a result, on Sept. 10, 2014, CMS issued an alert stating that
efective Jan. 5, 2015, where a non-group health plan (NGHP)
RRE cannot obtain an individual's HICN or full SSN, it may
report the following data to enable CMS to properly identi-
fy a Medicare benefciary: the last fve digits of the SSN, frst
initial, surname, date of birth, and gender.
20
Te CMS alert
further provided that, if NGHP RREs are unable to obtain or
do not provide the HICN, full SSN, or any of the above listed
data elements, they must document their attempts to obtain
this information.
On Aug. 19, 2014, CMS issued an alert that it will no lon-
ger rely on the allegations of the initial complaint or petition
but will look to the allegations in the latest complaint or sup-
plemental petition to determine whether the case meets the
criteria for reporting. CMS will not assert an MSP recovery
claim or require MMSEA Section 111 reporting when all of
the below criteria are met:
1. All exposure or ingestion ended or an implant was
removed before Dec. 5, 1980.
19
Id.
20
http://www.cms.gov/Medicare/Coordination-of-Ben-
efts-and-Recovery/Mandatory-Insurer-Report-
ing-For-Non-Group-Health-Plans/Downloads/
Change-in-Reporting-of-Medicare-Health-Insurance-Claim-
Numbers-HICNs-and-Social-Security-Numbers-SSNs-for-
Non-Group-Health-Plan-NGHPResponsible-Reporting-Enti-
ties-RREs-.pdf