Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

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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

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