The new so-called SMART Act (which stands for Strengthening Medicare and Repaying Taxpayers Act), will hopefully speed up one of the more frustrating aspects of handling motor vehicle cases — how long it takes to obtain definitive information from the Centers for Medicare and Medicaid Services (“CMS”) regarding Medicare payments made on their behalf that must be reimbursed.
Under the Medicare Secondary Payer laws (42 U.S.C. ยง 1395y(b)), Medicare does not pay for items or services to the extent that payment has been, or may reasonably be expected to be, made through a no-fault or liability insurer or through Workers’ Compensation (“WC”). Medicare may make a conditional payment when there is evidence that the primary plan does not pay promptly, conditioned upon reimbursement when the primary plan does pay. Once the Medicare Secondary Payer Recovery Contractor (“MSPRC”) has information concerning a potential recovery situation, it will identify the affected claims and begin recovery activities. Insurers/WC carriers (as applicable), beneficiaries, and representatives/attorney(s) are required to recognize the obligation to reimburse Medicare during any settlement negotiations.
Prior to the passage of the SMART Act, beneficiaries and their legal representatives could not obtain the exact reimbursable conditional payment amount until after the claim settled and the executed settlement documents were sent to MSPRC. The parties to a settlement could not rely on the conditional payments notice that they had received earlier from CMS because additional conditional payments may be alleged in the “final demand” letter generated after the settlement has occurred (medical providers are allowed up to 12 months from the date of service to submit their bills to Medicare for payment), which final demand letter may not be received by the parties to the settlement until many months later. Hence, there was uncertainty built into the system of conditional payment reimbursements that may have affected the terms of the settlement had the amount that needs to be reimbursed been finalized at the time that the settlement was reached.
The SMART Act requires CMS to maintain a secure web portal for beneficiaries and their authorized representatives to access claims and reimbursement amounts in a timely fashion. CMS is required to upload care payments they disperse within 15 days with the required information about the payment. Medicare beneficiaries are required to notify CMS that they are anticipating a settlement no more than 120 days before the anticipated settlement so that CMS can then ensure that the web portal is up-to-date within 65 days of its receipt of the notification (CMS may request an additional 30 days, if necessary). If the amount that must be reimbursed to CMS is downloaded from the web portal within three business days before the date of settlement, then the reimbursement amount is deemed to be reliable. If documentation regarding discrepancies are provided on the web portal, CMS has eleven business days to respond. If CMS fails to respond within the eleven-day period, the amount as calculated by the beneficiary is deemed to be the correct amount. The SMART Act also provides a three year limit for CMS to seek any repayments beginning from the date that CMS was informed of an anticipated settlement. All of these provisions of the SMART Act bring a greater sense of reliability, certainty, and accountability when dealing with CMS regarding reimbursement for benefits paid by CMS.
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