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The SMART Act Passes Energy and Commerce Health Subcommittee on 9-11

By Jason D. Lazarus, J.D., LL.M., MSCC, CSSC

The SMART Act is a piece of legislation designed to make the Medicare Secondary Payer Act more user friendly.  It addresses current issues with the conditional payment recovery process.  The legislation has been sitting in the House Energy & Commerce Health Subcommittee for quite some time.  On 9/11/12, it passed the committee with markup that has changed some of the key provisions.  The most important component of the legislation was the ability to obtain a final payment amount from CMS within 120 days of settlement.  It required CMS to deliver final payment info within 65 days of the request for a final payment amount.  In the event they did not and upon second notification, CMS had an additional 30 days to respond after which CMS would be barred from seeking reimbursement.  That was changed in committee markup yesterday.  Under the new language, CMS must maintain a web portal whereby individual beneficiaries can access claims paid on their behalf.  Parties then notify CMS 120 days from settlement and CMS has 65 days to ensure the website is up to date with the latest claims paid.  Parties can then use the final amount from the website for use in settlement.  This guts the teeth of the legislation somewhat as it no longer bars CMS from seeking reimbursement for non-compliance, but it will still allow access to the necessary information via the self-service web portal for settlement purposes.  It avoids the mess with the delays at the MSRPC but again it lacks the teeth of a bar to reimbursement for non-compliance by CMS.  The SMART act still contains a 3 year SOL for reimbursement claims by CMS which changes the law as it currently stands with regards to the SOL against PI attorneys.  Under US v. Stricker, it is currently 6 years for the SOL.  Lastly, it no longer requires elimination within one year of the use of the Social Security number of HICN number related to the Mandatory Insurer Reporting.  Instead, it gives CMS 18 months and potentially an additional 12 months to implement this change.

From here, the bill as amended will have to go back to the CBO for scoring (it was previously scored at 0).  The full Energy and Commerce Committee will take most likely take up the bill on September 20th.  To get to the House floor, the legislation has to also be considered by the Ways and Means Committee which may not be possible before the October recess.  The Senate is looking for some movement in the house before taking action.  Adoption by the Energy and Commerce Committee may be enough to spur the Senate into action.

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