MEDICARE AS SECONDARY PAYER.

SEC. 6202. MEDICARE AS SECONDARY PAYER. (a) Identification of Medicare Secondary Payer Situations.— 103 STAT. 2226 (1) Disclosure of certain taxpayer identity information for verification of employment status of medicare beneficiary and spouse of medicare beneficiary.— (A) In general.—Subsection (1) of section 6103 of the Internal Revenue Code of 1986 (relating to disclosure of returns and return information for purposes other than tax administration) is amended by adding at the end thereof the following new paragraph: “(12) Disclosure of certain taxpayer identity information for verification of employment status of medicare beneficiary and spouse of medicare beneficiary.— “(A) Return information from internal revenue service.—The Secretary shall, upon written request from the Commissioner of Social Security, disclose to the Commissioner available filing status and taxpayer identity information from the individual master files of the Internal Revenue Service relating to whether any medicare beneficiary identified by the Commissioner was a married individual (as defined in section 7703) for any specified year after 1986, and, if so, the name of the spouse of such individual and such spouse’s TIN. “(B) Return information from social security administration.—The Commissioner of Social Security shall, upon written request from the Administrator of the Health Care Financing Administration, disclose to the Administrator the following information: “(i) The name and TIN of each medicare beneficiary who is identified as having received wages (as defined in section 3401(a)) from a qualified employer in a previous year. “(ii) For each medicare beneficiary who was identified as married under subparagraph (A) and whose spouse is identified as having received wages from a qualified employer in a previous year— “(I) the name and TIN of the medicare beneficiary, and “(II) the name and TIN of the spouse. “(iii) With respect to each such qualified employer, the name, address, and TIN of the employer and the number of individuals with respect to whom written statements were furnished under section 6051 by the employer with respect to such previous year. “(C) Disclosure by health care financing administration.—With respect to the information disclosed under subparagraph (B), the Administrator of the Health Care Financing Administration may disclose— “(i) to the qualified employer referred to in such subparagraph the name and TIN of each individual identified under such subparagraph as having received wages from the employer (hereinafter in this subparagraph referred to as the ‘employee’) for purposes of determining during what period such employee or the employee’s spouse may be (or have been) covered under a group health plan of the employer and what benefits are or were covered under the plan (including the name, address, and identifying number of the plan), 103 STAT. 2227 “(ii) to any group health plan which provides or provided coverage to such an employee or spouse, the name of such employee and the employee’s spouse (if the spouse is a medicare beneficiary) and the name and address of the employer, and, for the purpose of presenting a claim to the plan— “(I) the TIN of such employee if benefits were paid under title XVIII of the Social Security Act with respect to the employee during a period in which the plan was a primary plan (as defined in section 1862(b)(2)(A) of the Social Security Act), and “(II) the TIN of such spouse if benefits were paid under such title with respect to the spouse during such period, and “(iii) to any agent of such Administrator the information referred to in subparagraph (B) for purposes of carrying out clauses (i) and (ii) on behalf of such Administrator. “(D) Special rules.— “(i) Restrictions on disclosure.—Information may be disclosed under this paragraph only for purposes of, and to the extent necessary in, determining the extent to which any medicare beneficiary is covered under any group health plan. “(ii) Timely response to requests.—Any request made under subparagraph (A) or (B) shall be complied with as soon as possible but in no event later than 120 days after the date the request was made. “(E) Definitions.—For purposes of this paragraph— “(i) Medicare beneficiary.—The term ‘medicare beneficiary’ means an individual entitled to benefits under part A, or enrolled under part B, of title XVIII of the Social Security Act, but does not include such an individual enrolled in part A under section 1818. “(ii) Group health plan.—The term ‘group health plan’ means— “(I) any group health plan (as defined in section 5000(b)(1)), and “(II) any large group health plan (as defined in section 5000(b)(2)). “(iii) Qualified employer.—The term ‘qualified employer’ means, for a calendar year, an employer which has furnished written statements under section 6051 with respect to at least 20 individuals for wages paid in the year. “(F) Termination.—Subparagraphs (A) and (B) shall not apply to— “(i) any request made after September 30, 1991, and “(ii) any request made before such date for information relating to— “(I) 1990 or thereafter in the case of subparagraph (A), or “(II) 1991 or thereafter in the case of subparagraph (B).” (B) Safeguards.—(i) Paragraph (3) of section 6103(a) of such Code is amended by inserting “(1)(12),” after “(e)(1)(D)(iii),”. 103 STAT. 2228 (ii) Subparagraph (A) of section 6103(p)(3) of such Code is amended by striking “or (11)” and inserting “(11), or (12)”. (iii) Paragraph (4) of section 6103(p) of such Code is amended in the material preceding subparagraph (A) by striking “or (9) shall” and inserting “(9), or (12) shall”. (iv) Clause (ii) of section 6103(p)(4)(F) of such Code is amended by striking “or (11)” and inserting “(11), or (12)”. (v) The next to the last sentence of paragraph (4) of section 6103(p) of such Code is amended by inserting “or which receives any information under subsection (1)(12)(B) and which discloses any such information to any agent” before “, this paragraph”. (C) Penalty.—Paragraph (2) of section 7213(a) of such Code is amended by striking “or (10)” and inserting “(10), or (12)”. (D) Effective date.—The amendments made by this paragraph shall take effect on the date of the enactment of this Act. (2) Responsibilities of hcfa.— (A) In general.—Section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)), as amended by subsection (b)(1) of this section, is amended by inserting after paragraph (4) the following new paragraph: “(5) Identification of secondary payer situations.— “(A) Requesting matching information.— “(i) Commissioner of social security.—The Commissioner of Social Security shall, not less often than annually, transmit to the Secretary of the Treasury a list of the names and TINs of medicare beneficiaries (as defined in section 6103(1)(12) of the Internal Revenue Code of 1986) and request that the Secretary disclose to the Commissioner the information described in subparagraph (A) of such section. “(ii) Administrator.—The Administrator of the Health Care Financing Administration shall request, not less often than annually, the Commissioner of the Social Security Administration to disclose to the Administrator the information described in subparagraph (B) of section 6103(1)(12) of the Internal Revenue Code of 1986. “(B) Disclosure to fiscal intermediaries and carriers.—In addition to any other information provided under this title to fiscal intermediaries and carriers, the Administrator shall disclose to such intermediaries and carriers (or to such a single intermediary or carrier as the Secretary may designate) the information received under subparagraph (A) for the purposes of carrying out this subsection. “(C) Contacting employers.— “(i) In general.—With respect to each individual (in this subparagraph referred to as an ‘employee’) who was furnished a written statement under section 6051 of the Internal Revenue Code of 1986 by a qualified employer (as defined in section 6103(l)(12)(D)(iii) of such 103 STAT. 2229Code), as disclosed under subparagraph (B), the appropriate fiscal intermediary or carrier shall contact the employer in order to determine during what period the employee or employee’s spouse may be (or have been) covered under a group health plan of the employer and the nature of the coverage that is or was provided under the plan (including the name, address, and identifying number of the plan). “(ii) Employer response.—Within 30 days of the date of receipt of the inquiry, the employer shall notify the intermediary or carrier making the inquiry as to the determinations described in clause (i). An employer (other than a Federal or other governmental entity) who willfully or repeatedly fails to provide timely and accurate notice in accordance with the previous sentence shall be subject to a civil money penalty of not to exceed $1,000 for each individual with respect to which such an inquiry is made. The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). “(iii) Sunset on requirement.—Clause (ii) shall not apply to inquiries made after September 30, 1991.”. (B) Deadline for first request.—The Commissioner of Social Security shall first— (i) transmit to the Secretary of the Treasury information under paragraph (5)(A)(i) of section 1862(b) of the Social Security Act (as inserted by subparagraph (A)), and (ii) request from the Secretary disclosure of information described in section 6013(1)(12)(A) of the Internal Revenue Code of 1986, by not later than 14 days after the date of the enactment of this Act. (b) Uniform Enforcement and Coordination of Benefits.— (1) In general.—Section 1862 of the Social Security Act (42 U.S.C. 1395y) is amended— (A) in the heading, by adding at the end the following: “and medicare as secondary payer”; and (B) by amending subsection (b) to read as follows: “(b) Medicare as Secondary Payer.— “(1) Requirements of group health plans.— “(A) Working aged under group health plans.— “(i) In general.—A group health plan— “(I) may not take into account, for any item or service furnished to an individual 65 years of age or older at the time the individual is covered under the plan by reason of the current employment of the individual (or the individual’s spouse), that the individual is entitled to benefits under this title under section 226(a), and “(II) shall provide that any employee age 65 or older, and any employee’s spouse age 65 or older, shall be entitled to the same benefits under the plan under the same conditions as any employee, and the spouse of such employee, under age 65. 103 STAT. 2230 “(ii) Exclusion of group health plan of a small employer.—Clause (i) shall not apply to a group health plan unless the plan is sponsored by or contributed to by an employer that has 20 or more employees for each working day in each of 20 or more calendar weeks in the current calendar year or the preceding calendar year. “(iii) Exception for small employers in multi-employer or multiple employer group health plans.—Clause (i) also shall not apply with respect to individuals enrolled in a multiemployer or multiple employer group health plan if the coverage of the individuals under the plan is by virtue of employment with an employer that does not have 20 or more employees for each working day in each of 20 or more calendar weeks in the current calendar year or the preceding calendar year; except that the exception provided in this clause shall only apply if the plan elects treatment under this clause. “(iv) Exception for individuals with end stage renal disease.—Clause (i) shall not apply to an item or service furnished in a month to an individual if for the month the individual is, or would upon application be, entitled to benefits under section 226A. “(v) Group health plan defined.—In this subparagraph, and subparagraph (C), the term ‘group health plan’ has the meaning given such term in section 5000(b)(1) of the Internal Revenue Code of 1986. “(B) Disabled active individuals in large group health plans.— “(i) In general.—A large group health plan (as defined in clause (iv)(II)) may not take into account that an active individual (as defined in clause (iv)(I)) is entitled to benefits under this title under section 226(b). “(ii) Exception for individuals with end stage renal disease.—Clause (i) shall not apply to an item or service furnished in a month to an individual if for the month the individual is, or would upon application be, entitled to benefits under section 226A. “(iii) Sunset.—Clause (i) shall only apply to items and services furnished on or after January 1, 1987, and before January 1, 1992. “(iv) Definitions.—In this subparagraph: “(I) Active individual.—The term ‘active individual’ means an employee (as may be defined in regulations), the employer, self-employed individual (such as the employer), an individual associated with the employer in a business relationship, or a member of the family of any of such persons. “(II) Large group health plan.—The term ‘large group health plan’ has the meaning given such term in section 5000(b)(2) of the Internal Revenue Code of 1986. 103 STAT. 2231 “(C) Individuals with end stage renal disease.—A group health plan (as defined in subparagraph (A)(v))— “(i) may not take into account that an individual is entitled to benefits under this title solely by reason of section 226A during the 12-month period which begins with the earlier of— “(I) the month in which a regular course of renal dialysis is initiated, or “(II) in the case of an individual who receives a kidney transplant, the first month in which he would be eligible for benefits under part A (if he had filed an application for such benefits) under the provisions of section 226A(b)(1)(B); and “(ii) may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner; except that clause (ii) shall not prohibit a plan from taking into account that an individual is entitled to benefits under this title solely by reason of section 226A after the end of the 12-month period described in clause (i). “(2) Medicare secondary payer.— “(A) In general.—Payment under this title may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that— “(i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1), or “(ii) payment has been made or can reasonably be expected to be made promptly (as determined in accordance with regulations) under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance. In this subsection, the term ‘primary plan’ means a group health plan or large group health plan, to the extent that clause (i) applies, and a workmen’s compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance, to the extent that clause (ii) applies. “(B) Conditional payment.— “(i) Primary plans.—Any payment under this title with respect to any item or service to which subparagraph (A) applies shall be conditioned on reimbursement to the appropriate Trust Fund established by this title when notice or other information is received that payment for such item or service has been or could be made under such subparagraph. “(ii) Action by united states.—In order to recover payment under this title for such an item or service, the United States may bring an action against any entity which is required or responsible under this subsection to pay with respect to such item or service (or any portion thereof) under a primary plan (and may, in accordance with paragraph (3)(A) collect double 103 STAT. 2232damages against that entity), or against any other entity (including any physician or provider) that has received payment from that entity with respect to the item or service, and may join or intervene in any action related to the events that gave rise to the need for the item or service. “(iii) Subrogation rights.—The United States shall be subrogated (to the extent of payment made under this title for such an item or service) to any right under this subsection of an individual or any other entity to payment with respect to such item or service under a primary plan. “(iv) Waiver of rights.—The Secretary may waive (in whole or in part) the provisions of this subparagraph in the case of an individual claim if the Secretary determines that the waiver is in the best interests of the program established under this title. “(3) Enforcement.— “(A) Private cause of action.—There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with such paragraphs (1) and (2)(A). “(B) Reference to excise tax with respect to non-conforming group health plans.—For provision imposing an excise tax with respect to nonconforming group health plans, see section 5000 of the Internal Revenue Code of 1986. “(4) Coordination of benefits.— Where payment for an item or service by a primary plan is less than the amount of the charge for such item or service and is not payment in full, payment may be made under this title (without regard to deductibles and coinsurance under this title) for the remainder of such charge, but— “(A) payment under this title may not exceed an amount which would be payable under this title for such item or service if paragraph (2)(A) did not apply; and “(B) payment under this title, when combined with the amount payable under the primary plan, may not exceed— “(i) in the case of an item or service payment for which is determined under this title on the basis of reasonable cost (or other cost-related basis) or under section 1886, the amount which would be payable under this title on such basis, and “(ii) in the case of an item or service for which payment is authorized under this title on another basis— “(I) the amount which would be payable under the primary plan (without regard to deductibles and coinsurance under such plan), or “(II) the reasonable charge or other amount which would be payable under this title (without regard to deductibles and coinsurance under this title), whichever is greater.”. 103 STAT. 2233 (2) Enforcement through excise tax.— Section 5000 of the Internal Revenue Code of 1986 is amended— (A) by striking “LARGE” in the heading; (B) in subsection (a), by striking “large” each place it appears; and (C) by amending subsections (b) and (c) to read as follows: “(b) Group Health Plan and Large Group Health Plan.—For purposes of this section— “(1) Group health plan.—The term ‘group health plan’ means any plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to the employer’s employees, former employees, or the families of such employees or former employees. “(2) Large group health plan.—The term ‘large group health plan’ means a plan of, or contributed to by, an employer or employee organization (including a self-insured plan) to provide health care (directly or otherwise) to the employees, former employees, the employer, others associated or formerly associated with the employer in a business relationship, or their families, that covers employees of at least one employer that normally employed at least 100 employees on a typical business day during the previous calendar year. “(c) Nonconforming Group Health Plan.—For purposes of this section, the term ‘nonconforming group health plan’ means a group health plan or large group health plan that at any time during a calendar year does not comply with the requirements of subparagraphs (A) and (C) or subparagraph (B), respectively, of section 1862(b)(1) of the Social Security Act.”. (3) Repeal of certain alternative enforcement provisions.— (A) Denial of deduction for group health plans.—Subsection (i) of section 162 of such Code (relating to group health plans) is repealed. (B) Conforming amendment.—Section 4980B(g)(2) of such Code is amended by striking “162(i)” and inserting “5000(b)(1)”. (C) Age discrimination in employment act.—The Age Discrimination in Employment Act of 1967 is amended— (i) by striking subsection (g) of section 4, and (ii) in section 12(a), by striking “(except the provisions of section 4(g))”. (4) Clerical and conforming amendments.— (A) Chapter 47 of the Internal Revenue Code of 1986 is amended— (i) in the heading, by striking “LARGE”, and (ii) in the table of sections, by striking “large”. (B) The item in the table of chapters of subtitle D of such Code relating to chapter 47 is amended by striking “large”. (C) Sections 1837(i) and 1839(b) of the Social Security Act (42 U.S.C. 1395p(i), 1395r(b)) are each amended by striking “1862(b)(3)(A)(iv)” and “1862(b)(4)(B)” each place each appears and inserting “1862(b)(1)(A)(v)” and “1862(b)(1)(B)(iv)”, respectively. (5) Effective date.—The amendments made by this subsection shall apply to items and services furnished after the date of the enactment of this Act. (c) Special Enrollment Period for Disabled Employees.— 103 STAT. 2234 (1) In general.— Section 1837(i) of the Social Security Act (42 U.S.C. 1395p(i)) is amended— (A) in paragraph (1)— (i) by striking subparagraph (A), (ii) by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively, and (iii) in the second sentence, by inserting “not described in the previous sentence” after “In the case of an individual”; and (B) in paragraph (2)— (i) in subparagraph (B)(i), by striking “(1)(B)” and inserting “(1)(A)”, (ii) by striking subparagraph (A), (iii) by redesignating subparagraphs (B) through (D) as subparagraphs (A) through (C), respectively, and (iv) in the second sentence, by inserting “not described in the previous sentence” after “In the case of an individual”. (2) Conforming amendment.—The second sentence of section 1839(b) of such Act (42 U.S.C. 1395r(b)) is amended by striking “during which the individual has attained the age of 65 and”. (3) Effective date.—The amendments made by this subsection shall apply to enrollments occurring after, and premiums for months sifter, the second calendar quarter beginning after the date of the enactment of this Act. (d) No Matching Based on Private Activities Required in Fiscal Intermediary Agreements and Carrier Contracts.— (1) Fiscal intermediary agreements.—Section 1816(c)(1) of the Social Security Act (42 U.S.C. 1395h(c)(1)) is amended by adding at the end the following: “The Secretary may not require, as a condition of entering into or renewing an agreement under this section or under section 1871, that a fiscal intermediary match data obtained other than in its activities under this part with data used in the administration of this part for purposes of identifying situations in which the provisions of section 1862(b) may apply.”. (2) Carrier contracts.—Section 1842(b)(2)(A) of such Act (42 U.S.C. 1395u(b)(2)(A)) is amended by adding at the end the following: “The Secretary may not require, as a condition of entering into or renewing a contract under this section or under section 1871, that a carrier match data obtained other than in its activities under this part with data used in the administration of this part for purposes of identifying situations in which section 1862(b) may apply.”. (3) Effective date.—The amendments made by this subsection shall apply to agreements and contracts entered into or renewed on or after the date of the enactment of this Act. (e) Treatment of Employment as a Member of a Religious Order.— (1) In general.— Section 1862(b)(1) of the Social Security Act (42 U.S.C. 1395y(b)(1)), as amended by subsection (b)(1) of this section, is amended by adding at the end the following new subparagraph: “(D) Treatment of certain members of religious orders.—In this subsection, an individual shall not be considered to be employed, or an employee, with respect to the performance of services as a member of a religious 103 STAT. 2235order which are considered employment only by virtue of an election made by the religious order under section 3121(r) of the Internal Revenue Code of 1986.”. (2) Effective date.—The amendment made by paragraph (1) shall apply to items and services furnished on or after October 1, 1989.