Notice of CMS Regulatory Agenda for SMART Act Implementation
Jesse Hamby
July 12, 2013

The following is an excerpt from a letter sent to the members of MARC (Medicare Advocacy and Recovery Coalition).  Clearly, this is a pivotal time for the implementation of this new law.  These notices represent an important step forward in the process. 

We wanted to alert you to a pair of recently published notices in the Department of Health and Human Services Semi-Annual Regulatory Agenda update, indicating that CMS intends to publish two rulemakings in the fall related to SMART Act implementation.

The first, LINK reflects the Agency’s intent to issue a proposed regulation in September 2013 regarding the Section 111 Reporting Civil Monetary Penalties.  We expect the rulemaking to delegate penalty authority to one of three offices (HHS General Counsel, HHS Office of Inspector General, or Department of Justice), as well as to address other aspects of the penalty procedures.   As you know, the SMART Act modified the Section 111 penalty provisions, and the regulatory notice states that the proposed rule will address both the penalties required under Section 111, and the safe harbors required in SMART Act Section 203.  Curiously, CMS appears to have missed the fact that the SMART Act also requires an “Advanced Notice of Proposed Rulemaking” to solicit ideas for safe harbors before the Agency proceeds to the Proposed Rule phase.  We are working with our Congressional allies to remind CMS of the SMART Act requirements.

The second, LINK  announces the Agency’s intent to propose regulations in October 2013 regarding the “MSP Portal,” and its use to implement the SMART Section 202 Expedited final conditional demand process.  Curiously, the CMS announcement suggests that CMS will propose an “Interim Final Rule,” meaning that they will announce the final rule without taking any comments), and take comments upon their announcement as they are implementing their process.  Given our collective experience in the Section 111 process, it is troubling that the Agency is not following the direction of Congress and proceeding through normal rulemaking.  Again, we will be discussing these issues with our Congressional allies.

We will continue to update you as further details emerge.