CMS has published an advance notice of proposed rulemaking soliciting comments on the imposition of civil money penalties (CMPs) for failure to comply with Medicare Secondary Payer (MSP) reporting requirements for certain group health and non-group health plans arrangements. Importantly, the SMART Act revised the language addressing CMPs of $1000 per day for responsible reporting entities (for example, certain tort defendants, and clinical trial sponsors) that fail to report payments to Medicare beneficiaries in accordance with MMSEA section 111, from mandatory to permissive language. This provides the Secretary with discretion regarding whether to impose CMPs for failure to report. CMS is seeking input on, among other things, specific practices that should be subject to CMPs, certain definitions, the criteria for evaluating whether to impose CMPs, and the dollar amount of CMPs that should be levied. Comments will be accepted until February 10, 2014.  For additional analysis, see our sister blog, Life Sciences Legal Update.

Separately, CMS also has issued a proposed rule that would implement MSP appeals provisions under the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act). Specifically, the rule addresses the right of appeal and a new multilevel appeal process for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans when Medicare pursues an MSP recovery claim directly from the applicable plan. Comments will be accepted until February 25, 2014.