I 

111TH CONGRESS 

2D SESSION H. R. 4796 

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

application of Medicare secondary payer rules for certain claims. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 9, 2010 

Mr. PATRICK J. MURPHY of Pennsylvania (for himself and Mr. TIM MURPHY

of Pennsylvania) introduced the following bill; which was referred to the 

Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

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. 

4 This Act may be cited as the ‘‘Medicare Secondary 

5 Payer Enhancement Act of 2010’’. 


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1 SEC. 2. CALCULATION AND DIRECT PAYMENT OF MSP 

2 CLAIMS. 

3 (a) CALCULATION AND DIRECT REIMBURSEMENT OF

4 CONDITIONAL PAYMENT FOR SETTLEMENT PURPOSES.— 

5 (1) Section 1862(b)(2)(B) of the Social Secu6 rity Act (42 U.S.C. 1395y(b)(2)(B)) is amended by 

7 adding at the end the following new clause: 

8 ‘‘(vii)(I) VOLUNTARY CALCULATION

9 AND PAYMENT OF CONDITIONAL PAY10 MENT.—In the case of a settlement, judg11 ment, award, or other payment between a 

12 claimant and an applicable plan (as de13 fined in paragraph (8)(F)) involving a pay14 ment made by the Secretary pursuant to 

15 clause (i) for items and services provided 

16 to the claimant, for purposes of deter17 mining the amount of reimbursement re18 quired under clause (ii) to the appropriate 

19 Trust Fund during the 90-day period pre20 ceding the reasonably expected date of 

21 such settlement, judgment, award, or other 

22 payment, the claimant and plan may— 

23 ‘‘(aa) in good faith calculate the 

24 amount of such reimbursement re25 quired based upon available billing 


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1 data for such items and services pro2 vided; and 

3 ‘‘(bb) reimburse such amount to 

4 the appropriate Trust Fund, in ac5 cordance with regulations promul6 gated by the Secretary. 

7 With respect to a payment made 

8 under clause (i) for items and services 

9 provided to a claimant and subject to 

10 subclause (II), any reimbursement 

11 made in accordance with this sub12 clause shall satisfy any obligation of 

13 the claimant and the applicable plan 

14 under this subsection. 

15 ‘‘(II) SECRETARY’S ABILITY TO CON16 TEST AMOUNT OF PAYMENT.—In the case 

17 of a reimbursement made to the appro18 priate Trust Fund under subclause (I), 

19 during the 75-day period beginning on the 

20 date of such reimbursement, if the Sec21 retary determines such reimbursement 

22 made is not the total amount owed under 

23 this subparagraph the Secretary shall have 

24 the right to contest the amount of such re25 imbursement made and to serve upon the 


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1 claimant and applicable plan a final de2 mand for the balance of the remaining 

3 amount so owed. The claimant or applica4 ble plan may make a reimbursement to the 

5 appropriate Trust Fund in the amount of 

6 such balance determined by the Secretary 

7 or may pursue appeal of the amount of the 

8 reimbursement determined by the Sec9 retary pursuant to the appeals process 

10 under clause (ix). In any such appeal, the 

11 burden of proof shall be on the claimant or 

12 applicable plan to demonstrate that the re13 imbursement made to the appropriate 

14 Trust fund under subclause (I) was cor15 rect. 

16 ‘‘(viii)(I) REQUEST FOR FINAL DE17 MAND FOR REIMBURSEMENT.—In the case 

18 of a settlement, judgment, award, or other 

19 payment between a claimant and an appli20 cable plan (as defined in paragraph 

21 (8)(F)) involving a payment made by the 

22 Secretary pursuant to clause (i) for items 

23 and services provided to the claimant, the 

24 claimant or applicable plan may at any 

25 time beginning 120 days prior to the reaVerDate Nov 24 2008 03:03 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4796.IH H4796

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1 sonably expected date of such settlement, 

2 judgment, award, or other payment, sub3 mit to the Secretary, in accordance with 

4 regulations to be promulgated by the Sec5 retary, a request for a recovery demand 

6 letter for reimbursement required under 

7 clause (ii) of such payment. The Secretary 

8 shall have 60 days to respond to such re9 quest with such final demand. Not later 

10 than 60 days after the date of receipt of 

11 such final demand, the claimant or applica12 ble plan may reimburse the appropriate 

13 Trust Fund for such payment in the 

14 amount identified in such final demand, in 

15 accordance with regulations promulgated 

16 by the Secretary. With respect to a pay17 ment made under clause (i) for items and 

18 services provided to a claimant, any such 

19 reimbursement made in accordance with 

20 this subclause shall satisfy any obligations 

21 of the claimant and the applicable plan 

22 under this subsection. 

23 ‘‘(II) FAILURE OF THE SECRETARY

24 TO PROVIDE FINAL DEMAND FOR CONDI25 TIONAL PAYMENT.—In the case that the 


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1 Secretary fails to provide a final demand 

2 for any item or service subject to reim3 bursement required under clause (ii) in ac4 cordance with subclause (I), the claimant, 

5 applicable plan, or an entity that receives 

6 payment from an applicable plan shall not 

7 be liable for and shall not be obligated to 

8 make payment subject to this subsection 

9 for any item or service related to the re10 quest for final demand for reimbursement. 

11 ‘‘(ix) RIGHT OF APPEAL.—The Secretary 

12 shall promulgate regulations establishing a 

13 right of appeal and appeals process, with re14 spect to any requirement under clause (ii) for 

15 a payment made under this title for an item or 

16 service under a primary plan, under which the 

17 applicable plan involved, or an attorney, agent, 

18 or third party administrator on behalf of such 

19 applicable plan may appeal such requirement. 

20 Such right of review shall— 

21 ‘‘(I) include review through an admin22 istrative law judge and administrative re23 view board, and access to judicial review in 

24 the district court of the United States for 

25 the judicial district in which the appellant 


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1 is located (or, in the case of an action 

2 brought jointly by more than one appli3 cant, the judicial district in which the 

4 greatest number of applicants are located) 

5 or in the District Court for the District of 

6 Columbia; and 

7 ‘‘(II) be carried out in a manner simi8 lar to the appeals procedure used for pur9 poses of subsection (a).’’. 

10 (2) CONFORMING AMENDMENT.—Clause (ii) of 

11 such section is amended by inserting after ‘‘60-day’’ 

12 the following ‘‘(or in the case of an applicable plan 

13 and reimbursement described in clause (vii) or (viii), 

14 90-day)’’. 

15 SEC. 3. THRESHOLD. 

16 (a) IN GENERAL.—Section 1862(b)(2)(B)(ii) of the 

17 Social Security Act (42 U.S.C. 1395y(b)(2)(B)(ii)) is 

18 amended— 

19 (1) by striking ‘‘(ii) REPAYMENT REQUIRED.— 

20 A primary plan’’ and inserting the following: 

21 ‘‘(ii) REPAYMENT REQUIRED.— 

22 ‘‘(I) IN GENERAL.—A primary 

23 plan’’; and 

24 (2) by adding at the end the following new sub25 clause: 


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1 ‘‘(II) EXCEPTION.—Subclause (I) 

2 shall not apply with respect to the fol3 lowing payments under this title: 

4 ‘‘(aa) Any settlement, judg5 ment, award, or other payment 

6 by an applicable plan constituting 

7 a total payment obligation to a 

8 claimant of not more than 

9 $5,000. 

10 ‘‘(bb) Any settlement, judg11 ment, award, or other payment 

12 by an applicable plan involving 

13 the ongoing responsibility for 

14 medical payments not otherwise 

15 addressed in subclause (I), of not 

16 more than $5,000. For purposes 

17 of this subclause and with re18 spect to a settlement, judgment, 

19 award, or other payment pay20 ments not otherwise addressed in 

21 subclause (I) involving the ongo22 ing responsibility for medical 

23 payments, such payment shall in24 clude only the cumulative value 

25 of the medical payments made 


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1 and the purchase price of any an2 nuity or similar instrument. 

3 The amounts under this subclause 

4 shall be adjusted each year based on 

5 the percentage increase in the Con6 sumer Price Index (rounded to the 

7 nearest multiple of $100) for the year 

8 involved.’’. 

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

10 subsection (a) shall apply with respect to payments made 

11 on or after 3 months after the date of the enactment of 

12 this Act. 

13 SEC. 4. REPORTING REQUIREMENT SAFE HARBORS. 

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

15 U.S.C. 1395y(b)(8)) is amended— 

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

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

18 through the end of the sentence and inserting the 

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

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

21 severity of each such penalty shall be based on the 

22 intentional nature of the violation.’’; and 

23 (2) by adding at the end the following new sub24 paragraph: 


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1 ‘‘(I) SAFE HARBORS.—Not later than 60 

2 days after the date of the enactment of this 

3 subparagraph, the Secretary shall publish a no4 tice in the Federal Register soliciting proposals, 

5 which will be accepted during a 60-day period, 

6 for the creation of safe harbors from sanctions 

7 imposed under subparagraph (E) under which 

8 entities responsible for reporting information 

9 under this paragraph will be deemed to have 

10 complied with the reporting requirements under 

11 this paragraph and will not be subject to such 

12 sanctions. After considering the proposals sub13 mitted pursuant to the preceding sentence, the 

14 Secretary, in consultation with the Attorney 

15 General, shall publish in the Federal Register, 

16 including a 60-day period for comment, pro17 posed safe harbors. After considering any public 

18 comments received during such period, the Sec19 retary shall issue final rules establishing safe 

20 harbors from penalties or other sanctions under 

21 subparagraph (E).’’. 

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

23 IDENTIFYING INFORMATION IN REPORTING. 

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

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


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1 (after and below clause (ii)) the following sentence: ‘‘Not 

2 later than one year after the date of enactment of the 

3 Medicare Secondary Payer Enhancement Act of 2010, the 

4 Secretary shall modify the reporting requirements under 

5 this paragraph so that entities responsible for reporting 

6 information under this paragraph are not required to ac7 cess or report to the Secretary beneficiary social security 

8 numbers or health identification claim numbers.’’. 

9 SEC. 6. STATUTE OF LIMITATIONS. 

10 (a) IN GENERAL.—Section 1862(b)(2)(B)(iii) of the 

11 Social Security Act (42 U.S.C. 1395y(b)(2)(B)(iii)) is 

12 amended by adding at the end the following sentence: 

13 ‘‘Every action brought by the United States or an officer 

14 or agency thereof under this clause shall be barred unless 

15 the complaint is filed not later than three years after the 

16 date of the receipt of notice of a settlement or other pay17 ment giving rise to recovery of a payment made pursuant 

18 to paragraph (8).’’. 

19 (b) EFFECTIVE DATE.—The amendment made by 

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

21 on or after 6 months after the date of the enactment of 

22 this Act. 


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1 SEC. 7. USER FEE. 

2 Section 1862(b) of the Social Security Act (42 U.S.C. 

3 1395y(b)) is amended by adding the following new para4 graph: 

5 ‘‘(9) USER FEES.— 

6 ‘‘(A) IN GENERAL.—Beginning 90 days 

7 after the date of the enactment of the Medicare 

8 Secondary Payer Enhancement Act of 2010, 

9 and annually thereafter for the 10-year period 

10 beginning on such date of enactment, the Sec11 retary shall assess and collect fees in accord12 ance with this paragraph as follows: 

13 ‘‘(i) DIRECT CONDITIONAL PAYMENT

14 REIMBURSEMENT FEE.—Each person or 

15 entity that submits a payment to fulfill the 

16 reimbursement requirement pursuant to 

17 paragraph (2)(B)(vii) shall be subject to a 

18 fee of $30 for each payment reimbursed to 

19 the Secretary. 

20 ‘‘(ii) REQUEST FOR FINAL DEMAND

21 OF CONDITIONAL PAYMENT FEE.—Each 

22 person that submits a request for a recover 

23 demand letter of conditional payment 

24 under paragraph (2)(B)(viii) shall be sub25 ject to a fee of $30 for each such request 

26 submitted to the Secretary. In the case of 


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1 a person or entity that pays a fee under 

2 this clause, such person or entity shall not 

3 also be subject to the fee under clause (i). 

4 ‘‘(B) INFLATION ADJUSTMENT.—For fiscal 

5 year 2010 and subsequent fiscal years, the 

6 amount of the fees specified in subparagraph 

7 (A) shall be adjusted by the Secretary by no8 tice, published in the Federal Register, to re9 flect any percent changes in the Consumer 

10 Price Index for all urban consumers (all items; 

11 U.S. city average) for the 12 month period end12 ing June 30 of the preceding fiscal year. 

13 ‘‘(C) COLLECTION OF UNPAID FEES.—In 

14 any case where the Secretary does not receive 

15 payment of a fee assessed under subparagraph 

16 (A) by the date that is 30 days after the date 

17 such fee is due, such fee shall be treated as a 

18 claim of the United States Government subject 

19 to subchapter II of chapter 37 of title 31, 

20 United States Code.’’. 

Æ 


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