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By Settlement Solutions, February 5, 2013 10:07 am

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 reforms certain aspects of the MSPMedicare Secondary Payer Act and the MMSEAMedicare Medicaid and SCHIP Extension Act. While the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not directly broach how to protect Medicare’s interests with regard to any future medical component, it does directly reform components of the conditional payment reimbursement process and MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act.

Conditional payments are allowed under the MSPMedicare Secondary Payer Act when the primary payer does not make payment promptly. However, Medicare makes the payment “conditioned” upon reimbursement by the primary payer. Essentially, these are payments made by Medicare that the primary payer is responsible for, and as a result, Medicare is owed the right to reimbursement. If Medicare conditional payments are not reimbursed, Medicare has the right to sue for double damages. Due to this priority right to recover, Medicare conditional payments are sometimes referred to as a “super lien.”

Under the MMSEAMedicare Medicaid and SCHIP Extension Act, liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance or plans are required to report the assumption of ongoing responsibility for medical treatment as well as settlements, judgments, and awards with Medicare beneficiaries. A graduated scale for the requirement to report these claims has been implemented based on the settlement amount. The purpose behind MIRMandatory Insurer Reporting is to enable the CMSCenters for Medicare and Medicaid Services to have visibility into settlements occurring with Medicare beneficiaries as well as a record of cases where ongoing responsibility exists, which is important for proper coordination of benefits. Awareness of these requirements is important since there is the potential for a $1000 per day/per claim penalty for the failure to report.

Note that President Obama signed the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 into law on January 10, 2013; therefore, when the “enactment date” is referred to, it shall mean the aforementioned date.  The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 was passed attached to Medicare IVIG access bill in H.R. 1845. For a full copy of H.R. 1845, please click here.

The following section will address some of the issues that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 seeks to resolve with regard to conditional payments and MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 can be broken down into 5 major components. While addressing each component, we will also answer frequently asked questions for each topic.

1)      New Conditional Payment Resolution Process

Parties entering settlements with Medicare beneficiaries have been all too familiar with long wait times when trying to finalize conditional payment amounts with CMSCenters for Medicare and Medicaid Services, as well as being unable to receive a final demand until after settlement.

There is good news on the horizon. In 9 months from the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date (on or about October 10, 2013), CMSCenters for Medicare and Medicaid Services will be implementing a new process to provide a final conditional payment amount prior to settlement. It will be available online, and there will be stricter timelines for when CMSCenters for Medicare and Medicaid Services must provide the demand amount.

This is how it will work: anytime 120 days prior to a settlement, judgment, or award, you notify CMSCenters for Medicare and Medicaid Services of your expected settlement date and amount. During this time, conditional payment information will be available on a “website.” Payments made by CMSCenters for Medicare and Medicaid Services must be posted to the website no later than 15 days from the payment date.

Within 65 days from the time CMSCenters for Medicare and Medicaid Services receives notice, a “statement of reimbursement amount” will be available for download- which can be considered the final demand, as long as you are in the “protected period.”  The “protected period” means 65 days after CMSCenters for Medicare and Medicaid Services has received notice of your settlement, judgment, or award; however, CMSCenters for Medicare and Medicaid Services can extend the 65 day period for a an additional 30 days only under exceptional circumstances, and exceptional circumstances cannot be more than 1 percent of cases. CMSCenters for Medicare and Medicaid Services will provide this in a format where the final demand is time and date stamped and settlement must occur within 3 business days of downloading the statement or it will no longer be valid as a final demand.

If you want to dispute the conditional payment amount, you should provide CMSCenters for Medicare and Medicaid Services with a proposed resolution amount along with an explanation of the reason for the adjustment. CMSCenters for Medicare and Medicaid Services then has an 11 business day window in which they can do the following in response to the proposed resolution:

a)      Not respond within 11 days of the proposed resolution. In that case, the proposed resolution is deemed accepted by CMSCenters for Medicare and Medicaid Services.

b)      CMSCenters for Medicare and Medicaid Services can respond within 11 business days and state that they disagree with the proposed resolution.

c)      Another option is for CMSCenters for Medicare and Medicaid Services to respond within the 11 business day period and propose an “alternate discrepancy resolution.”

In addition to the dispute process just described, CMSCenters for Medicare and Medicaid Services will also need to promulgate regulations around creating a formal appeals process.

 FAQs:

Q. Which website is being referred to? Is it the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not specify if this website will be an enhanced version of the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, or if it will be a new website. However, it does state that the website will be a form of “successor technology.” We are hopeful that the website will provide more enhanced functionality than the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, which has some limitations, such as requiring you to have a case number before being able to use the portal for a particular case.

Q. What is considered official notification to CMSCenters for Medicare and Medicaid Services of a settlement, judgment, or award under this section? 

A. How notice is to be made under this section is not clear. Currently, CMSCenters for Medicare and Medicaid Services is notified of settlements through calls to the COBCCoordination of Benefits Contractor, as well as through MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act. Therefore, it is not clear if either or both of these types of notifications will suffice as “adequate notice.” The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 also does not specify if a separate notification will need to be made through this website.

Q. Isn’t requiring settlement to occur within 3 business days of downloading the final demand a bit fast? 

A. Yes, it is fast. However, it does seem that if the parties do not end up settling within 3 business days, that they can simply re-download a new time and dated stamped “statement of reimbursement amount” when settlement is about to occur.

Q. What is the “alternate discrepancy resolution” that CMSCenters for Medicare and Medicaid Services can propose if they do not agree with your proposed dispute on the conditional payment amount?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not describe this at all. One could guess that this will be an informal, non-binding method to resolve the dispute. If the parties cannot agree, then the new appeals process will likely provide a different avenue and a more formal administrative appeal if you are not satisfied with the result during the informal dispute process.

2)      Threshold for Exemption from Conditional Payment Reimbursement and Reporting

Finding it frustrating to deal with conditional payments and MIRMandatory Insurer Reporting on nominal, nuisance value cases that you just want to close out quickly? Not only has the industry been voicing this concern, but CMSCenters for Medicare and Medicaid Services has also been under scrutiny for conditional payment collections on these cases. It has come to light that in some cases, it actually costs more for CMSCenters for Medicare and Medicaid Services to recover a conditional payment than the amount they paid “conditionally.”

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 requires the DHHSDepartment of Health and Human Services to calculate and publish a single threshold amount for settlements, judgments, awards, or other payments in which they will not seek reimbursement of conditional payments and you will not have any MIRMandatory Insurer Reporting obligations. They will publish this amount by November 15^th each year, and this will begin in the year 2014. The threshold amount will be the amount where CMSCenters for Medicare and Medicaid Services can demonstrate that their costs of recovering the conditional payments equal the collections.

 FAQs:

Q. Does this threshold also apply to MSAsMedicare Set-Asides or to the consideration of Medicare’s interests in regard to future medicals? 

A. No, it only applies to conditional payments and MIRMandatory Insurer Reporting.

Q. What will the threshold be? Do any thresholds currently exist for conditional payments?

A. Currently, liability settlements under $300 are exempted from reimbursement of conditional payments to CMSCenters for Medicare and Medicaid Services. It is unclear what the new threshold will be; however, many have commented that this threshold is much too low.

3)      Discretionary Fines for noncompliance with MIRMandatory Insurer Reporting

The threat of a $1000 per day/per claim fine for noncompliance can be pretty scary when one error in a quarterly report can result in a $90,000 penalty! It also seemed rather arbitrary that the fine was mandatory and there were no formal rules/guidelines as to when CMSCenters for Medicare and Medicaid Services could and could not impose fines.

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 strikes the portion of the MMSEAMedicare Medicaid and SCHIP Extension Act law that states that a RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA “shall be subject. . .” In its place, the language now says “may be subject.” This replacement language essentially makes fines for noncompliance with MIRMandatory Insurer Reporting discretionary instead of mandatory.

But first, within 60 days of the enactment date of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, CMSCenters for Medicare and Medicaid Services must solicit comments from the industry in the Federal Register which practices should be considered an event subject to sanctions. After considering the public comments, we will see some finalized rules regarding which practices by an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA would be subject to sanctions.

FAQs:

Q. What will the industry consider to be practices that are subject to sanctions? Will the main standard be “good faith” efforts on behalf of the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA?

A. The commentary from the industry as to what actions should be subject to sanctions will certainly be interesting. One would think that CMSCenters for Medicare and Medicaid Services would carve out an exception to being sanctioned if the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could document good faith efforts to report the claim(s). Additionally, CMSCenters for Medicare and Medicaid Services may implement some more specific practices that would be subject to sanctions. For example, CMSCenters for Medicare and Medicaid Services has repeatedly stated that sending bad data with errors is not considered compliance. If an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA was notified by CMSCenters for Medicare and Medicaid Services that the data contained errors, and over a period of time it is demonstrated that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA did not attempt to correct the data, that may be a practice subject to sanctions.

Q. CMSCenters for Medicare and Medicaid Services recently announced its plans to audit group health plans (GHPsGroup Health Plans) for compliance with MIRMandatory Insurer Reporting. Are non group health plans (NGHPsNon Group Health Plans) next to be audited? Has CMSCenters for Medicare and Medicaid Services ever issued fines? 

A. To our knowledge, CMSCenters for Medicare and Medicaid Services has not yet issued any fines for noncompliance with MIRMandatory Insurer Reporting for NGHPsNon Group Health Plans. However, CMSCenters for Medicare and Medicaid Services recently rolled out a work plan to audit GHPsGroup Health Plans for compliance with MIRMandatory Insurer Reporting in 2013. It would seem that NGHPsNon Group Health Plans will likely be audited next and that parties not in compliance would be subject to fines. Therefore, fines are likely to be issued in the near future.

 4)      Use of SSNsSocial Security Numbers/HICNs in MIRMandatory Insurer Reporting

Many RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA, particularly those that deal with liability claims, have voiced concern over the difficulty to obtain a Medicare beneficiary’s SSNSocial Security Number. Without an SSNSocial Security Number, an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA cannot report the case under MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 makes reporting SSNsSocial Security Numbers optional.

However, it is very important to note that CMSCenters for Medicare and Medicaid Services has been given an extended period of time to implement this. They have 18 months after the enactment date to publish rules to implement this, and they can file extensions for up to 1 year if certain criteria are met.

 FAQs:

Q. How will CMSCenters for Medicare and Medicaid Services be able to identify beneficiaries without these identifiers?  

A. It has been estimated that CMSCenters for Medicare and Medicaid Services will need to come up with some kind of new unique identifier and likely overhaul current systems to implement this.  

Q. Since this may take a few years to be implemented, what can RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do in the meantime while SSNsSocial Security Numbers are still required to be reported in those situations where it is unable to obtain a beneficiary’s SSNSocial Security Number?  

A. CMSCenters for Medicare and Medicaid Services has provided the industry with a method to document and demonstrate good faith efforts to obtain SSNsSocial Security Numbers. Additionally, there has been some recent case law where a carrier refused to tender a settlement due to the beneficiary not providing their SSNSocial Security Number. In those cases, the courts sided with the RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA and required the beneficiaries to provide their SSNSocial Security Number so that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could be in compliance with the MMSEAMedicare Medicaid and SCHIP Extension Act and not subject to fines. If needed, RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can document their good faith efforts to obtain SSNsSocial Security Numbers and/or bring the matter to court if the beneficiary refuses to provide their SSNSocial Security Number.

5)      New Statute of Limitations for Conditional Payments

Previously, the statute of limitations for CMSCenters for Medicare and Medicaid Services to recover conditional payments was unclear. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 provides that if CMSCenters for Medicare and Medicaid Services is given notice of the settlement, judgment, award or other payment, then they may not seek recovery of that conditional payment any later than 3 years after notice is given. This is scheduled to take effect 6 months after the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date.

 FAQs:

Q. Isn’t a final demand from CMSCenters for Medicare and Medicaid Services “final?” Why would you be concerned with a statute of limitations if you reimbursed a final demand from CMSCenters for Medicare and Medicaid Services?  

A. Technically, the term “final demand” is a misnomer. CMSCenters for Medicare and Medicaid Services still has the right to discover, research and recover conditional payments owed even after a final demand is paid. This new statute of limitations will give a clear timeline of when CMSCenters for Medicare and Medicaid Services can recover conditional payments as long as you notify CMSCenters for Medicare and Medicaid Services of your settlement, judgment, or award. Now, 3 years after notice is given, you will be in the clear.

PMSI will keep you updated on any developments in regard to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011. For questions on the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and how PMSI can assist, please contact Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP at Heather.Schwartz@pmsisettlement.com.

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By Settlement Solutions, January 16, 2013 10:43 am

With the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 signed by President Obama and becoming law on January 10, 2013, numerous changes are on the horizon with regard to conditional payment reimbursement and Mandatory Insurer Reporting (MIRMandatory Insurer Reporting). Please join us for a complimentary webinar which will address the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and the impact it will have on workers’ compensation and liability claims.  

Highlights from the webinar will include the details and application of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 in reference to:  

• Being able to obtain a Final Conditional Payment Demand Prior to Settlement
• Not having to report or reimburse Medicare for settlements under a certain monetary threshold
• Changes in the application of fines for noncompliance with MIRMandatory Insurer Reporting and the reporting of SSNsSocial Security Numbers/HICNs
• A new statute of limitations/time limit wherein CMSCenters for Medicare and Medicaid Services cannot recover conditional payments

Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP will offer her expertise in reference to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 on Thursday, January 24, 2013 from 2 PM -3 PM EDT.  Click here to register now!

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By Settlement Solutions, December 20, 2012 4:38 pm

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 was passed by the U.S. House of Representatives yesterday, December 19, 2012 and was attached onto H.R. 1845, a Medicare IVIG Access Bill. H.R. 1845 will now move onto the Senate where it will be reviewed.

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 was initially introduced by the Medicare Advocacy Recovery Coalition (MARCMedicare Advocacy Recovery Coalition), a group which advocates for the improvement of the MSPMedicare Secondary Payer Act Program for beneficiaries and affected companies. PMSI is a supporter of MARCMedicare Advocacy Recovery Coalition.

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 specifically seeks to streamline the MSPMedicare Secondary Payer Act process by easing burdens on CMSCenters for Medicare and Medicaid Services as well as the insurance industry. Some of the initiatives of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 include requiring CMSCenters for Medicare and Medicaid Services to provide a final conditional payment demand prior to finalizing settlement, setting a monetary threshold in which the MSPMedicare Secondary Payer Act would not apply, carving out safe harbors for the MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting penalties, as well as setting a statute of limitations for CMSCenters for Medicare and Medicaid Services to recover conditional payments at 3 years.

For a copy of the MARCMedicare Advocacy Recovery Coalition release regarding the House passage of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, please click here. For a copy of H.R. 1845 as passed by the House, click here.

PMSI applauds the House’s actions yesterday and is very hopeful that the Senate takes action to enable the full passage of this Bill. We will continue to follow the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and remain in support of it as it progresses through the legislative process.

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By Settlement Solutions, October 24, 2012 1:06 pm

With the upcoming Presidential elections on November 6, 2012, the industry has been wondering what changes, if any, the election results would have on CMSCenters for Medicare and Medicaid Services, MSAsMedicare Set-Asides, and the MSPMedicare Secondary Payer Act.

Additionally, with the Patient Protection and Affordable Care Act (PPACAPatient Protection and Affordability Care Act of 2010), also commonly known as Obamacare¹, being recently upheld in the U.S. Supreme Court as constitutional, one might wonder what the effect will be on the DHHSDepartment of Health and Human Services and CMSCenters for Medicare and Medicaid Services. Obamacare has been referred to as one of the largest changes to the U.S. healthcare system since the founding of Medicare and Medicaid almost five decades ago². Regardless of one’s political affiliation, one cannot deny that the implementation of Obamacare would seemingly tie up resources at both the DHHSDepartment of Health and Human Services and CMSCenters for Medicare and Medicaid Services while implementing these changes.

The current, and arguably most impactful, activities surrounding MSAsMedicare Set-Asides and MSPMedicare Secondary Payer Act reform are the following: 1) a new contractor, Provider Resources Inc., reviewing WCMSAs since July 2, 2012 (click here for prior blog on the new contractor); 2) an ANPRMAdvance Notice of Proposed Rulemaking which proposes formalized rules regarding MSPMedicare Secondary Payer Act obligations and future medicals (comment period closed on August 14, 2012; for more information on the ANPRMAdvance Notice of Proposed Rulemaking click here for our prior blog); and 3) two pieces of legislation which propose reform of the MSPMedicare Secondary Payer Act: The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012 (click here for prior blog regarding these Acts).

 Let’s look at each one more closely.

 1)     New WCMSAWorkers' Compensation Medicare Set-Aside Contractor

There are mixed results and opinions on the new contractor. While turnaround time for WCMSAs submitted since July 2, 2012 has greatly improved, many have seen vast differences in the way the new contractor has been pricing and reviewing WCMSAs as compared to the prior contractor. All are hopeful that as the new contractor settles in, they will provide reasonable and predictable allocations of WCMSAs. Until Provider Resources, Inc. or CMSCenters for Medicare and Medicaid Services provides more predictability to the industry through concrete guidelines and consistency in the review process, WCMSAWorkers' Compensation Medicare Set-Aside counter-highs may be inevitable.

1. If Barack Obama is re-elected: Since Provider Resources, Inc. was chosen under his administration, it is unlikely we will see a change in vendors. Additionally, they are just “getting their feet wet” and arguably would need time before their abilities can be judged.
2. If Mitt Romney is elected: The Statement of Work appears to be issued for one year periods³ and any changes to the contactor would have to come at the expiration of their Statement of Work period. Regardless, it is likely that the election of Mitt Romney would mean that a new DHHSDepartment of Health and Human Services Secretary would be elected. With Kathleen Sebelius no longer in office, a change in governmental contractors is always a possibility.  It is unclear whether Mitt Romney would change WCMSAWorkers' Compensation Medicare Set-Aside contractors. However, if Provider Resources appears to be doing a good job after an expected “learning curve” period, it would not make sense to change them.

2)     ANPRMAdvance Notice of Proposed Rulemaking

1. If Barack Obama is re-elected: As the ANPRMAdvance Notice of Proposed Rulemaking was issued under his administration, a re-election of Barack Obama would likely help it move along more quickly. The officials at DHHSDepartment of Health and Human Services and CMSCenters for Medicare and Medicaid Services currently reviewing commentary received from the public would retain their jobs and could respond and provide finalized rules more quickly. While the focus on implementing Obamacare will still be the top priority of these agencies, one can anticipate that the rule making process will continue.
2. If Mitt Romney is elected: Kathleen Sebelius would undoubtedly be replaced, which would mean that between November and January 1^st, she along with the rest of DHHSDepartment of Health and Human Services would likely focus its efforts on transitioning to a new Secretary. The rule making process would predictably stall during this time. After January 1, the new Secretary of DHHSDepartment of Health and Human Services may be focusing his/her efforts on dismantling Obamacare. Although many have opined that it would be difficult for this to be done⁴, any focus on the ANPRMAdvance Notice of Proposed Rulemaking could possibly be dismantled or significantly delayed altogether. Regardless, Mitt Romney has proffered that, “[h]is goal is for Medicare to offer every senior affordable options that provide coverage and service at least as good as what today’s seniors receive.”⁵ Due to the fact that Romney has stated that he is dedicated to preserving the Medicare trust fund and coverage for beneficiaries, it is likely that some form of the ANPRMAdvance Notice of Proposed Rulemaking or other proposed rulemaking would eventually re-surface which would aim to protect Medicare beneficiaries as well as the Medicare Trust Fund.

3)     SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and other WCMSAWorkers' Compensation Medicare Set-Aside Legislation

This legislation may not only be impacted by the Presidential election, but also may change due to the composition of the legislature.  Assuming the composition of the House and Senate remain relatively unchanged, the fact that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 has bi-partisan support should help it to continue to move through the Legislature.

1. If Barack Obama is re-elected: The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 recently passed the House Energy and Commerce Subcommittee on Health on September 11, 2012 and is planned to head to the full Energy and Commerce Committee for a vote before floor consideration in the House. If Obama stays in office, it is likely that we will eventually see both the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and the WCMSAWorkers' Compensation Medicare Set-Aside legislation tied onto another piece of healthcare legislation with a better chance of passing if Obama stays in office.
2. If Mitt Romney is elected: Mitt Romney has frequently commented that he will dismantle Obamacare on day one. Many political experts believe that if Romney is elected, his best chances of dismantling Obamacare would be if the Republican Party could win control of both the House and Senate, and in which case he would need to stave off filibusters and repeal the Act.⁶ Clearly Mitt Romney would try to focus Congress’ efforts on dismantling Obamacare and both pieces of MSPMedicare Secondary Payer Act reform legislation may lose priority.  One could anticipate that just as the passage of Obamacare was a contentious task, any attempt to dismantle it will be equally contentious.  If such efforts were successful, the bi-partisan support that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 currently receives might be at risk, for purely political reasons. It seems that the potential outcome of both pieces of MSPMedicare Secondary Payer Act reform would be more dependent upon the make-up of both Houses of Congress after the election, rather than who is elected as President.

Wherever the future of our state of political affairs ends up, we are hopeful that those affected by the MSPMedicare Secondary Payer Act, the insurance industry as well as Medicare beneficiaries alike, will ultimately have a fair system of MSPMedicare Secondary Payer Act enforcement that not only protects the Medicare Trust Fund, but also provides clear, equitable and consistent guidelines for settlements and consideration of Medicare’s interests. We trust that the future will be bright and our elected officials will ultimately continue to pursue improvements to the system.

We want to hear from you- what do you hope to get out of the 2012 Elections and where do you see the future of MSPMedicare Secondary Payer Act reform going?

This blog is not intended to be an endorsement for any political party, platform, or affiliation.

<sup>1. [http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act]↩
2. [ http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act]↩
3. [https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=5b5f6bb5088ed00ffe7c2b5c643ed74d&_cview=0]↩
4. [http://news.yahoo.com/romneys-pledge-repeal-obamacare-elected-165418907.html]↩
5. [http://www.mittromney.com/issues/medicare?gclid=CI2Bk7vhl7MCFRRbnAodgBwA9w]↩
6. [http://news.yahoo.com/romneys-pledge-repeal-obamacare-elected-165418907.html]↩</sup>