H. R. 1122
IN THE HOUSE OF REPRESENTATIVES
February 16, 2017
Mr. Murphy of Pennsylvania (for himself and Mr. Kind) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To amend title XVIII of the Social Security Act to provide for clarification and rationalization of Medicare prescription drug plan recovery rules for certain claims.
This Act may be cited as the
Secondary Payer Advancement, Rationalization, and Clarification Act or the
Clarification and rationalization of Medicare prescription drug secondary claims responsibility
Section 1860D–2(a)(4) of the Social Security Act (42 U.S.C. 1395w–102(a)(4)) is amended to read as follows:
Secondary payor and recovery rights
Application of secondary payor
A prescription drug plan shall be secondary payor to any valid and collectible payment from a primary drug plan (as defined in clause (iv)) until such time as such primary drug plan pays a final settlement, judgment, or award to an individual enrolled under the prescription drug plan with regard to an injury or illness involved or otherwise terminates its ongoing responsibility for medical payments with respect to the individual.
Limitation on parties making prescription drug plans primary
A primary drug plan (as defined in clause (iv), other than a group health plan or multiemployer or multiple employer plan of, or contributed to by, an employer that has 20 or fewer employees for each working day in each of 20 or more calendar weeks in the calendar year involved or the preceding calendar year), a self-insured plan, a service benefit plan, a managed care organization, a pharmacy benefit manager, or other party that, by statute, contract, or agreement, is legally responsible for payment of a claim for a covered outpatient drug, in enrolling an individual or in making any payments for benefits to the individual or on the individual’s behalf, may not take into account that the individual is enrolled under a prescription drug plan under this part or is eligible for or is provided coverage for covered part D drugs under this part.
Limitation on secretarial claims through subrogation
The Secretary shall not assert any claim on behalf or against a prescription drug plan, other than through the recovery from such a plan of amounts paid related to a covered part D drug event that has been repaid to the plan through a subrogation action or otherwise.
Primary drug plan defined
In this paragraph, the term primary drug plan means, with respect to benefits for covered part D drugs, a group health plan or large group health plan (other than a group health plan or multiemployer or multiple employer plan of, or contributed to by, an employer that has 20 or fewer employees for each working day in each of 20 or more calendar weeks in the calendar year involved or the preceding calendar year), a workers’ compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no-fault insurance insofar as such a plan, law, policy, or insurance provides such benefits, insofar as, under the provisions of section 1862(b)(2), such coverage would be treated as a primary plan if benefits for covered part D drugs were treated as benefits under parts A and B. For purposes of this clause, an entity that engages in a business, trade, or profession shall be deemed to have a self-insured plan if it carries its own risk (whether by a failure to obtain insurance, or otherwise) in whole or in part.
A prescription drug plan may waive (in whole or in part) the provisions of this paragraph in the case of an individual claim if the plan determines that the waiver is in the best interests of the program established under this part.
A prescription drug plan shall be subrogated (to the extent of payment made under this part by the plan for any covered part D drug before the date the plan received notice pursuant to subparagraph (D)) to any right of an individual or any other entity to payment, with respect to such covered part D drug, under a primary drug plan. A subrogation claim may not be asserted pursuant to this subparagraph by a prescription drug plan with respect to a payment for a covered part D drug after the date that is 3 years after the date such plan receives notice of a payment, with respect to such covered part D drug, pursuant to subparagraph (D). Any such subrogation claim shall be the exclusive legal remedy of the PDP sponsor of the plan and shall be reduced to take into account the cost of procuring the judgment or settlement with respect to such claim if an individual’s liability, workers’ compensation, or no-fault claim is disputed. Any costs or expense incurred by a prescription drug plan related to recoveries pursuant to this subparagraph shall not be considered an administrative cost or expense, as those terms are used in this part.
Coordination of benefits information
Not later than 15 days after the date the Secretary receives information under paragraph (7) or (8) of section 1862(b) relating to an individual enrolled in a prescription drug plan during an applicable time, the Secretary shall provide such information to such prescription drug plan in a format convenient and accessible to such plans. The Secretary shall waive any requirements under this part that a prescription drug plan establish procedures for determining whether costs for part D eligible individuals are being reimbursed through insurance or otherwise or identify payers that are primary to the program under subparagraph (A)(ii) other than as required under this paragraph.
Coordination of benefits
A prescription drug plan shall, in the case of receipt of a notice pursuant to subparagraph (D) related to an enrollee for whom a primary drug plan has reported on ongoing responsibility for medical costs pursuant to paragraph (7) or (8) of section 1862(b), authorize the provider of such covered part D drug to charge, in accordance with the charges allowed under the prescription drug plan, such primary drug plan for such covered part D drug related to or arising out of the treatment accident or injury subject to such notice (other than payments subject to a claim under subparagraph (B) or (F)) for the period in which the enrollee remains enrolled in such plan through the date upon which such primary drug plan has terminated such ongoing responsibility for medical payments.
Use of web site to determine final reimbursement amount
Notification of plans
Not later than 10 days after the date the Secretary receives a notice under section 1862(b)(2)(B)(vii)(I) relating to an individual during the period the individual is enrolled in a prescription drug plan, the Secretary shall provide such notice to the plan.
Statement by plan
Not later than 30 days after the date a plan receives a notice under clause (i), the plan may provide the Secretary with a statement of any covered part D drug for which the plan seeks reimbursement, including the amount of such reimbursement.
Failure to provide statement
The prescription drug plan shall be deemed to have waived its rights under subparagraph (B)—
in the case that the prescription drug plan does not provide such statement by such date, with respect to any covered part D drug provided to such individual with respect to such notice; and
in the case that the prescription drug plan provides such statement by such date, with respect to any covered part D drug provided to such individual which was not identified in the notice.
Inclusion of information on web site
The Secretary shall include any covered part D drug identified by a prescription drug plan pursuant to clause (ii) within the Secretary’s statement of reimbursement amount on the Web site as described in section 1862(b)(2)(B)(vii).
The Secretary may collect (on behalf of a prescription drug plan) the reimbursement amount for covered part D drugs, as identified pursuant to clause (ii), from the individual involved or the primary drug plan pursuant to the procedures set forth under section 1862(b)(2)(B)(vii). Any such amounts collected by the Secretary for covered part D drugs directly paid by the plan shall be remitted directly by the Secretary to the appropriate prescription drug plan that enrolled the individual related to the notice during the applicable time period for which such individual was enrolled, and the Secretary shall retain such amounts as were paid to the plan in subsidy for such drugs.
The amendment made by subsection (a) shall apply to drugs dispensed in years beginning more than 6 months after the date of the enactment of this Act.