II 

112TH CONGRESS 

1ST SESSION S. 1718 

To amend title XVIII of the Social Security Act with respect to the 

application of Medicare secondary payer rules for certain claims. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 17, 2011 

Mr. WYDEN (for himself, Mr. PORTMAN, Mr. NELSON of Nebraska, and Mr. 

BURR) introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To amend title XVIII of the Social Security Act with respect 

to the application of Medicare secondary payer rules 

for certain claims. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Strengthening Medicare And Repaying Taxpayers Act of 

6 2011’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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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. 

1 SEC. 2. EXPEDITING SECRETARIAL DETERMINATION OF 

2 REIMBURSEMENT AMOUNT TO IMPROVE 

3 PROGRAM EFFICIENCY. 

4 Section 1862(b)(2)(B) of the Social Security Act (42 

5 U.S.C. 1395y(b)(2)(B)) is amended by adding at the end 

6 the following new clause: 

7 ‘‘(vii) TIMELY NOTICE OF CONDI8 TIONAL PAYMENT REIMBURSEMENT.— 

9 ‘‘(I) REQUEST FOR CONDITIONAL

10 PAYMENT STATEMENT.—In the case 

11 of a payment made by the Secretary 

12 pursuant to clause (i) for items and 

13 services provided to the claimant, the 

14 claimant or applicable plan (as de15 fined in paragraph (8)(F)) may at 

16 any time beginning 120 days before 

17 the reasonably expected date of a set18 tlement, judgment, award, or other 

19 payment, notify the Secretary that a 

20 payment is reasonably expected, and 

21 request from the Secretary, in accord22 ance with regulations, a statement of 


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1 the conditional payment reimburse2 ment amount (in this clause referred 

3 to as a ‘statement of reimbursement 

4 amount’) for any payments subject to 

5 reimbursement required under clause 

6 (ii). A claimant or applicable plan 

7 may request a statement under this 

8 subclause only once with respect to 

9 such settlement, judgment, award, or 

10 other payment. 

11 ‘‘(II) SECRETARIAL RESPONSE.— 

12 ‘‘(aa) IN GENERAL.—Not 

13 later than 65 days after the date 

14 of receipt of a request under sub15 clause (I), the Secretary shall re16 spond to such request with a 

17 statement of reimbursement 

18 amount, which shall constitute 

19 the conditional payment subject 

20 to recovery under clause (ii) re21 lated to such settlement, judg22 ment, award or other payment. 

23 ‘‘(bb) CASE OF SECRE24 TARIAL FAILURE.—Subject to 

25 subclause (III), if the Secretary 


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1 fails to provide such a statement 

2 of reimbursement amount for 

3 items or services subject to reim4 bursement required under clause 

5 (ii) in accordance with this sub6 clause, the claimant, applicable 

7 plan, or an entity that receives 

8 payment from an applicable plan 

9 shall provide an additional notice 

10 to the Secretary of such failure. 

11 If the Secretary fails to provide a 

12 statement of reimbursement 

13 amount within 30 days of the 

14 date of such additional notice, 

15 the claimant, applicable plan, and 

16 an entity that receives payment 

17 from an applicable plan shall not 

18 be liable for and shall not be obli19 gated to make payment subject 

20 to this section for any item or 

21 service related to the request un22 less the Secretary demonstrates 

23 (in accordance with regulations) 

24 that the failure was justified due 

25 to exceptional circumstances (as 


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1 defined in such regulations). 

2 Such regulations shall define ex3 ceptional circumstances in a 

4 manner so that not more than 1 

5 percent of the repayment obliga6 tions under this subclause would 

7 qualify as exceptional cir8 cumstances. 

9 ‘‘(III) NOTICE TO SECRETARY.— 

10 In the event that a settlement, judg11 ment, award, or other payment does 

12 not occur (or is no longer reasonably 

13 expected to occur) within 120 days of 

14 the date of an original request under 

15 subclause (I) with respect to a settle16 ment, judgment, award, or other pay17 ment, the claimant or the applicable 

18 plan shall timely notify the Secretary, 

19 and the Secretary shall be exempt 

20 from any obligation under subclause 

21 (II) with respect to a statement of re22 imbursement amount relating to such 

23 settlement, judgment, award, or other 

24 payment related to the notice. 


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1 ‘‘(IV) EFFECTIVE DATE.—The 

2 Secretary shall promulgate final regu3 lations to carry out this clause not 

4 later than 9 months after the date of 

5 the enactment of this clause. Such 

6 regulations shall require the disclosure 

7 from a claimant or applicable plan of 

8 no more than the minimum amount of 

9 information necessary for the Sec10 retary to determine the amount of 

11 conditional payment subject to recov12 ery under clause (ii) related to such 

13 settlement, judgment, award, or other 

14 payment, and may require partial dis15 closure (but may not require full dis16 closure) of social security numbers or 

17 health identification claim numbers. 

18 ‘‘(viii) RIGHT OF APPEAL.—The Sec19 retary shall promulgate regulations estab20 lishing a right of appeal and appeals proc21 ess, with respect to any determination 

22 under this subsection for a payment made 

23 under this title for an item or service 

24 under a primary plan, under which the ap25 plicable plan involved, or an attorney, 


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1 agent, or third party administrator on be2 half of such applicable plan, may appeal 

3 such determination. Such right of appeal 

4 shall— 

5 ‘‘(I) include review through an 

6 administrative law judge and adminis7 trative review board, and access to ju8 dicial review in the district court of 

9 the United States for the judicial dis10 trict in which the appellant is located 

11 (or, in the case of an action brought 

12 jointly by more than one applicant, 

13 the judicial district in which the 

14 greatest number of applicants are lo15 cated) or in the District Court for the 

16 District of Columbia; and 

17 ‘‘(II) be carried out in a manner 

18 similar to the appeals procedure under 

19 regulations for hearing procedures re20 specting notices of determinations of 

21 nonconformance of group health plans 

22 under this subsection.’’. 

23 SEC. 3. FISCAL EFFICIENCY AND REVENUE NEUTRALITY. 

24 (a) IN GENERAL.—Section 1862(b) of the Social Se25 curity Act (42 U.S.C. 1395y(b)) is amended— 


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1 (1) in paragraph (2)(B)(ii), by striking ‘‘A pri2 mary plan’’ and inserting ‘‘Subject to paragraph (9), 

3 a primary plan’’; and 

4 (2) by adding at the end the following new 

5 paragraph: 

6 ‘‘(9) EXCEPTION.— 

7 ‘‘(A) IN GENERAL.—Clause (ii) of para8 graph (2)(B) and any reporting required by 

9 paragraph (8) shall not apply with respect to 

10 any settlement, judgment, award, or other pay11 ment by an applicable plan constituting a total 

12 payment obligation to a claimant of not more 

13 than the single threshold amount calculated by 

14 the Chief Actuary of the Centers for Medicare 

15 & Medicaid Services under subparagraph (B) 

16 for the year involved. 

17 ‘‘(B) ANNUAL COMPUTATION OF THRESH18 OLDS.—Not later than November 15 before 

19 each year, the Chief Actuary of the Centers for 

20 Medicare & Medicaid Services shall calculate 

21 and publish a single threshold amount for set22 tlements, judgments, awards or other payments 

23 for conditional payment obligations arising from 

24 each of liability insurance (including self-insur25 ance), workers’ compensation laws or plans, and 


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1 no fault insurance subject to this section for 

2 that year. Each such annual single threshold 

3 amount for a year shall be set such that the ex4 pected average amount to be credited to the 

5 Medicare trust funds of collections of condi6 tional payments from such settlements, judg7 ments, awards, or other payments for each of li8 ability insurance (including self-insurance), 

9 workers’ compensation laws or plans, and no 

10 fault insurance subject to this section shall 

11 equal the expected average cost of collection in12 curred by the United States (including pay13 ments made to contractors) for a conditional 

14 payment from each of liability insurance (in15 cluding self-insurance), workers’ compensation 

16 laws or plans, and no fault insurance subject to 

17 this section for the year. The Chief Actuary 

18 shall include, as part of such publication for a 

19 year— 

20 ‘‘(i) the expected average cost of col21 lection incurred by the United States (in22 cluding payments made to contractors) for 

23 a conditional payment arising from each of 

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1 ance), no fault insurance, and workers’ 

2 compensation laws or plans; and 

3 ‘‘(ii) a summary of the methodology 

4 and data used by such Chief Actuary in 

5 computing the threshold amount and such 

6 average cost of collection. 

7 ‘‘(C) TREATMENT OF ONGOING EX8 PENSES.—For purposes of this paragraph and 

9 with respect to a settlement, judgment, award, 

10 or other payment not otherwise addressed in 

11 clause (ii) of paragraph (2)(B) involving the on12 going responsibility for medical payments, such 

13 payment shall include only the cumulative value 

14 of the medical payments made and the purchase 

15 price of any annuity or similar instrument.’’. 

16 (b) EFFECTIVE DATE.—The amendments made by 

17 subsection (a) shall apply to years beginning more than 

41 18 ⁄2 months after the date of the enactment of this Act. 

19 SEC. 4. REPORTING REQUIREMENT SAFE HARBORS. 

20 Section 1862(b)(8) of the Social Security Act (42 

21 U.S.C. 1395y(b)(8)) is amended— 

22 (1) in the first sentence of subparagraph (E)(i), 

23 by striking ‘‘shall be subject’’ and all that follows 

24 through the end of the sentence and inserting the 

25 following: ‘‘may be subject to a civil money penalty 


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1 of up to $1,000 for each day of noncompliance. The 

2 severity of each such penalty shall be based on the 

3 knowing, willful, and repeated nature of the viola4 tion.’’; and 

5 (2) by adding at the end the following new sub6 paragraph: 

7 ‘‘(I) ESTABLISHMENT OF SAFE

8 HARBORS.—Not later than 60 days 

9 after the date of the enactment of this 

10 subparagraph, the Secretary shall 

11 publish a notice in the Federal Reg12 ister soliciting proposals, which will be 

13 accepted during a 60-day period, for 

14 the specification of practices for which 

15 sanctions will not be imposed under 

16 subparagraph (E), including for good 

17 faith efforts to identify a beneficiary 

18 pursuant to this paragraph under an 

19 applicable entity responsible for re20 porting information, under which this 

21 paragraph will be deemed to have 

22 complied with the reporting require23 ments under this paragraph and will 

24 not be subject to such sanctions. After 

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1 mitted, the Secretary, in consultation 

2 with the Attorney General, shall pub3 lish in the Federal Register, including 

4 a 60-day period for comment, pro5 posed specified practices for which 

6 such sanctions will not be imposed. 

7 After considering any public com8 ments received during such period, the 

9 Secretary shall issue final rules speci10 fying such practices.’’. 

11 SEC. 5. USE OF SOCIAL SECURITY NUMBERS AND OTHER 

12 IDENTIFYING INFORMATION IN REPORTING. 

13 Section 1862(b)(8)(B) of the Social Security Act (42 

14 U.S.C. 1395y(b)(8)(B)) is amended by adding at the end 

15 (after and below clause (ii)) the following: ‘‘Not later than 

16 1 year after the date of enactment of this sentence, the 

17 Secretary shall modify the reporting requirements under 

18 this paragraph so that an applicable plan in complying 

19 with such requirements is permitted but not required to 

20 access or report to the Secretary beneficiary social security 

21 account numbers or health identification claim numbers.’’. 

22 SEC. 6. STATUTE OF LIMITATIONS. 

23 (a) IN GENERAL.—Section 1862(b) of the Social Se24 curity Act (42 U.S.C. 1395y(b)) is amended— 


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1 (1) in paragraph (2)(B)(iii), by adding at the 

2 end the following new sentence: ‘‘An action may not 

3 be brought by the United States under this clause 

4 with respect to payment owed unless the complaint 

5 is filed not later than 3 years after the date of the 

6 receipt of notice of a settlement, judgment, award, 

7 or other payment made pursuant to paragraph (8) 

8 relating to such payment owed.’’; and 

9 (2) in paragraph (8)(E)(i), by adding at the 

10 end the following new sentence: ‘‘A civil money pen11 alty may not be imposed under this clause with re12 spect to failure to submit required information un13 less service of notice of intention to impose the pen14 alty is provided not later than 3 years after the date 

15 by which the information was required to be sub16 mitted.’’. 

17 (b) EFFECTIVE DATE.—The amendments made by 

18 subsection (a) shall apply with respect to actions brought 

19 and penalties sought on or after 6 months after the date 

20 of the enactment of this Act. 

Æ 


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