CMS Issues Interim Final Rule on Conditional Payment Web Portal Required by the SMART Act

On September 20, 2013, CMS issued an interim final rule in the Federal Register which specifies the process and timeline for expanding the current MSP Web portal to comply with Section 201 of the SMART Act.  A copy of the interim final rule in the Federal Register can be accessed here. PMSI plans to continue its analysis of this interim final rule and provide comments to CMS regarding this rulemaking. In the meantime, we have provided an initial summary of the interim final rule.

Effective Date: The regulations are effective 60 days after publication in the Federal Register. Therefore, the effective date of the interim final rule is November 19, 2013. However, although the interim final rule will be “effective,” CMS states that it will implement all systems and process changes to the Web portal no later than January 1, 2016.

Comment Period: Comments must be received no later than 5 P.M. on November 19, 2013. Comments can be provided to CMS through 1 of 4 options provided within the interim final rule. These 4 options allow for submission of comments electronically, through regular mail, by express or overnight mail, and by hand or courier to CMS. PMSI encourages industry stakeholders to submit commentary to CMS on this interim final rule.

CMS’ Decision to Issue an Interim Final Rule instead of a Proposed Rule:

CMS noted that it normally publishes a notice of proposed rulemaking in the Federal Register and then invites public comment on the proposed rule. In this case, CMS found that notice-and-comment rulemaking was unnecessary due to the fact that the regulation provides an additional procedural option for stakeholders, but does not change any substantive provision of the MSP program or otherwise impact their administration of the MSP program. CMS also noted that implementing this through an interim rule was in the public interest because requiring a notice of proposed rulemaking and public comment thereon would delay public access to the Web portal. Nonetheless, CMS is still providing a 60-day public comment period.

Summary of Proposed Timelines, Processes and Procedures for the Web portal:

  • Security Features and Timeline: CMS intends to implement a security feature known as multifactor authentication (a methodology to authenticate a user identity) no later than January 1, 2016. Until this multifactor authentication is developed and integrated into the Web portal, the Medicare beneficiary, an authorized attorney/other representative and an authorized applicable plan will only be able to view the total conditional payment amount associated with a beneficiary’s case. The beneficiary will be the only entity who can see all pertinent information.  Once multifactor authentication is implemented, all authorized parties will be able to view claim-specific data such as diagnosis codes, provider names and dates of service via the Web portal. In summary, more specific data around a conditional payment demand (other than the total amount) will not be able to be obtained through the Web portal by anyone other than the beneficiary until CMS implements this security feature. If the attorney or authorized representative or applicable plan intends to dispute the conditional payment amount, it will be extremely difficult to dispute unrelated charges without this specific claims data.
  • Processes and Procedures to Obtain a Final Conditional Payment Amount through the Web portal:
    • The beneficiary, his or her attorney or other representative, may notify CMS once and only once, via the Web portal, of an impending settlement, any time after Medicare’s contractor has posted its initial claims compilation (65 days after initial notice to the appropriate Medicare contractor) and up to 120 days before the anticipated date of settlement. It is important to note that notice to the “appropriate Medicare contractor” must still be given; therefore notice must now be given at least 185 days prior to the anticipated date of settlement. Not only does this require the beneficiary, his or her attorney or representative to still have to notify Medicare outside of the web portal, it also does not shorten the time period in which parties can settle after they give notice given to CMS.
      • CMS may extend this 65 day period for “exceptional circumstances;” however, not more than 1 percent of cases can qualify for this exception.
  • After Medicare posts its initial claims compilation, the beneficiary, his or her attorney or other representative must request and receive confirmation of a claims refresh via the Web portal before he or she will be able to obtain a final conditional payment amount. CMS will provide confirmation of the completion of a claims refresh through the Web portal no later than 5 business days after the electronic request is initiated. This requires an additional action by the parties before a final demand can be provided and delays the process by an additional 5 days.
  • If the beneficiary, his or her authorized attorney or other representative believes that there are unrelated claims in the most up-to-date conditional payment summary, a claim may be disputed once and only once.  Disputes submitted through the Web portal will be resolved within 11 business days of receipt of the dispute and any required supporting documentation. This dispute process is not an appeals process, and there will be no administrative or judicial review related to this dispute process. However, the beneficiary maintains his or her appeal rights regarding CMS’ MSP recovery determination, once CMS issues its final demand. Those appeal rights are explained in the final demand letter issued by CMS and more information may be found in 42 CFR part 405, subpart I. Only allowing one dispute through this process may not provide adequate resolution for the parties and having to still undergo the traditional appeals process may be time consuming.  In addition, the parties will not really have true finality prior to settlement.
  • After disputes have been fully resolved and the beneficiary, his or her attorney or other representative has executed a final claims refresh and obtained confirmation that refresh has been performed, he or she may download or otherwise request a time and date stamped final conditional payment summary through the Web portal. This form will constitute the final conditional payment amount if settlement is reached within 3 days of the date on the conditional payment summary form. It is unclear whether the parties will be able to re-download another conditional payment summary form that is time and date stamped if the parties do not end up settling within 3 days of the initial download. If the parties are only able to download a conditional payment summary form once, if the parties do not settle within 3 business days then they will still have to undergo the traditional MSP recovery process.
  • Within 30 days of securing the settlement, the beneficiary or his or her attorney or other representative must submit through the Web portal settlement information. CMS expects that the amount and type of settlement information required will be the same information that CMS typically collects to calculate its final demand amount. CMS expects to incorporate a method to allow settlement information to be entered or uploaded directly through the Web portal. While it is helpful that settlement information will be able to be provided through the Web portal, requiring this information within 30 days may be unrealistic. CMS even notes within the interim final rule that “providing settlement information within 30 days of the settlement may be challenging at times. . .”

PMSI will continue to follow this interim final rule and other developments from the SMART Act. For any questions on this interim final rule, please contact us at asktheexperts@pmsisettlement.com. We also encourage any commentary and ideas which can be provided during the comment period remaining open until November 19, 2013.

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