Question: “I am negotiating a settlement of a disability discrimination case for a Medicare eligible client. Medicare made no payments for any medical care, and my client did not require any medical treatment stemming from the discrimination claim. What are the obligations of the parties under the SMART Act?”
Answer: Your question is timely, and drives at how quickly the SMART Act will be fully implemented. Signed into law by President Obama on January 10th of this year, the SMART Act will amend the Medicare Secondary Payer Act (42 U.S.C. Section 1395y(b)(2)) in a number of ways. Most notably, Section 201 of the SMART Act provides that CMS shall establish a web portal within which parties who are proactively addressing Medicare’s priority right of recovery for conditional payments made would be able to fully address the obligation (start to finish) within 120 days. However, this web portal, and the vast majority of the regulations operationalizing the SMART Act, are yet to be rolled out as CMS has until October 10, 2013 to do so. For the time being, it is status quo for MSP reimbursement claims, understanding that CMS will be filling in the blanks as the year goes on.