SMART Act Becomes Law

Medicare Set-Aside Blog, MEDVAL News on January 10, 2013
Posted by Louis Jordan

Among the 19 new laws created today (and you’ll be relieved to know that all of the post offices were named), President Obama signed into law H.R. 1845, the Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act of 2012. Guess there was never any doubt that funding bubble boy research would not be approved; however, we are thankful that the legislative process is finally over and we can start working towards implementation. The clock is now ticking for CMS to start the rule making process for Section 111 fines. As we wait for the official solicitation to be posted in the Federal Register within the next 60 days, we should be focused on thinking through the many different insurance situations that may arise that should not trigger a reporting fine that CMS will rely on us to bring to its attention. Other than that, next thing to become effective is the statute of limitations which will not happen until July 10, 2013. CMS has until October to implement the new conditional payment determination policies and the recovery exemption will not become effective until 2014. Therefore, no real action is required at this time.

Now that that is over, what are the chances that we can hold Congress’ attention a little while longer and tackle future medical exposures?  I am a little concerned that perhaps Congress already believes itself to have solved the MSA problem as well, despite the SMART Act proving no provisions to correct the same. In the memo to the Energy and Commerce members notifying them of the September 20th markup, the background information for H.R. 1063 included the following:

“Many claims cannot be settled in a timely or conclusive manner. Under current law, there is no requirement for CMS to provide the parties with amounts due or the amount they should set aside to cover future payments before settlement so the parties can appropriately allocate and resolve these Medicare obligations during settlement. For workers’ compensation cases, CMS has created, through informal agency memoranda, a voluntary procedure for parties to seek review and approval of the medical allocations in their proposed settlements. Some have claimed the process for approval is unclear, does not recognize requirements of settlements under state workers’ compensation statutes, and causes delay and inefficiency. For liability claims, no such process for prior review and approval exists…. H.R.1063, the Strengthening Medicare and Repaying Taxpayers (SMART) Act of 2012, seeks to address these issues by making several improvements to the MSP statute…”

It is just interesting that the issues get mentioned regardless of not being addressed. While it is still unlikely that you can solve problems with a voluntary, unlegislated, unregulated program with legislation, at least calling for some official regulation to govern the voluntary program would have been nice. I can just imagine the public comments about the MSA review program CMS would receive. Oh well, maybe next year…