Synergy Blog

What is the SOL for Medicare Conditional Payments?

By Dave Place, J.D., Director of Lien Resolution

What is the statute of limitations for Medicare to institute an action for repayment of conditional payments used to be a question with more than one answer.  In the past the Centers for Medicare and Medicaid Services (“CMS”) had argued that the six (6) year limitation period contained in the Federal Debt Collection Act for claims arising out of contract was the correct standard for the plaintiff attorney.   That statute provides:

“every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues…”

28 USC § 2415(a)

The plaintiff’s bar and Medicare enrollees argued that the shorter three (3) year statute of limitations was the correct standard for claims arising out of tort. That statute provides:

“every action for money damages brought by the United States or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues…”

28 U.S.C. § 2415(b).

When President Obama signed the Strengthening Medicare and Repaying Taxpayers Act  (“SMART”) on January 10, 2013 he answered this question in favor of Medicare beneficiaries. Additionally, unlike some of the other components of the “SMART” Act this section is self-enacting and  does not need rule promulgation or post a proposed rulemaking in the Federal Register for this to be effective. By operation of statute this new time limit became effective six (6) months after signing.  Therefore, all cases that settle after July 10, 2013 will be controlled by the three (3) year statute of limitations. The “SMART” Act reads in pertinent part:

“(a) In General.–Section 1862(b)(2)(B)(iii) of the Social Security Act (42 U.S.C. 1395y(b)(2)(B)(iii)) is amended by adding at the end the following new sentence: `An action may not be brought by the United States under this clause with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made…’”

Pub. L. No. 112-242, § 205(a) (2013)

In the recent case U.S. v. Stricker, Lexis 15204 (11th Cir. July 26, 2013) the court provides an excellent analysis of the above competing statutes of limitation and confirms that the “SMART” Act has resolved the controversy for settlements after July 10, 2013.  The Stricker Court discussed the need and purpose of federal statute of limitations:

The purpose of a statute of limitations, such as 28 U.S.C. § 2415, “is to require the prompt presentation of claims.” Coppage v. U.S. Postal Serv., 281 F.3d 1200, 1206 (11th Cir. 2002) (internal quotation marks and citation omitted). Originally, there was no statute of limitations for lawsuits filed by the government. Congress, however, passed § 2415-a statute of limitations that applies to the United States  [*14] -“to promote diligence by the government in bringing claims to trial and also to make the position of the government more nearly equal to that of a private litigant.” United States v. Kass, 740 F.2d 1493, 1496 (11th Cir. 1984).

The new three (3) year statute of limitations under the “SMART” Act addresses that need and the complaint of so many Medicare beneficiaries who wonder if there is ever an end to CMS’s demand for repayment.  It is now incumbent on the plaintiff’s attorney to report settlements to CMS (via their contractor MSPRC) so that the three (3) year timer starts running as soon as possible.

For help with Medicare Conditional payment resolution, turn to Synergy.  Synergy offers a unique post payment of final demand service where we attempt to secure a refund back from Medicare via the compromise/waiver process.  There is a small administrative fee at the outset and then Synergy only gets paid if there is a refund on a percentage of savings basis.  To learn more about Synergy’s lien resolution services, visit www.synergylienres.com

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