Liability Set Aside & SMART Act Update

Posted date in Liens, Medicare Secondary Payer Act, MSP Compliance

On June 6th, I participated in a meeting with CMS officials regarding MSP related issues in Washington, DC.  I also spent some time lobbying a couple of members of the House on behalf of the SMART Act.  Both experiences were enlightening and I wanted to pass along the information I obtained.  The meeting with CMS officials produced one very interesting piece of information, the Advanced Notice of Proposed Rulemaking on “Future Medicals” which I let everyone know about previously, does address liability settlements and what to do as it relates to future medicals.  AAJ is well aware of this particular issue and I am on a committee looking at these issues (thanks to Sean Dominick’s help).  We still don’t know what all of this means as ANPRM is just proposed rulemaking and 80% of these sorts of things go nowhere.  We will have to wait and see on the outcome but I will keep everyone in the loop. 

As for the SMART Act, it currently has 110 plus co-sponsors in the House.  Its support is almost completely bi-partisan (60% Rs and 40% Ds).  The CBO has scored the bill at zero which is great news.  There is a pathway to get it enacted by the end of this legislative year.  However, everyone should attempt to reach out to your Rep. in the House if they are not already a co-sponsor to get this to the finish line.  The highlights of the SMART Act are as follows:

  • Allows the parties to request from Medicare a final amount due and Medicare must respond within 65 days of the request
  • Provides a right of appeal if there is a disagreement with Medicare’s payment request or if the parties believe that Medicare has made a mistake
  • Will require CMS to set a low dollar threshold below which Medicare will not pursue a reimbursement claim
  • Create discretion in assessing the $1k/per claimant fine for failing to report under the Medicare Mandatory Insurer Reporting law
  • Elimination of the use of the full SSN or HICN when reporting so plaintiffs don’t have to give out this sensitive info to the other side for reporting under the Mandatory Insurer Reporting.
  • Creates a hard 3 Statute of Limitations for claims under the MSP (measured from the date of reporting under the Mandatory Insurer Reporting)

While the SMART Act does not solve all of the problems, it is a massive step in the right direction.  If you want to see who has co-sponsored the legislation, go to