CMS Issues Notice of Proposed Rulemaking Regarding an Appeals Process to be utilized by Applicable Plans for Conditional Payment Disputes

On December 27, 2013, CMS issued a NPRM relating to circumstances where “applicable plans” (liability insurance, no-fault insurance, and workers’ compensation law or plans) can appeal recoveries which are sought by Medicare under the MSP directly against applicable plans. Organizations or individuals seeking to have commentary considered should provide their recommendations via one of the approved delivery methods as specified in the NPRM no later than 5 pm on February 25, 2014.

The appeals process proposed within this NPRM will strictly be for “applicable plans” as Medicare beneficiaries currently have existing appeal rights where the beneficiary is listed as the debtor. Because there is currently no appeals process for applicable plans in a similar situation, and the SMART Act called upon CMS to create an appeals process for applicable plans, this NPRM has been issued in the efforts to give applicable plans the same rights to appeal as a beneficiary currently has available.

As it relates to the SMART Act, Section 201 specifically requires Medicare to promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal a statement of reimbursement amount. Therefore, this NPRM has been issued to comply with the aforementioned requirement of the SMART Act.

While CMS has noted that the industry has expressed interest in an appeal process for determinations regarding WCMSAs, this NPRM does not address this issue (CMS noted that it will be addressed separately). PMSI is hopeful that CMS will address this issue separately in the near future as an appeals process for WCMSAs would bring additional clarity and consistency toward the WCMSA and CMS approval process.

Noteworthy portions of the NPRM on the Appeals Process proposed:

  • The applicable plan must be the identified debtor in the initial demand.
  • Additionally, if the applicable plan is the identified debtor in the initial demand, the beneficiary cannot dispute the recovery amount/conditional payment amount.
  • The applicable plan cannot appeal unless and until an initial demand has been issued and Medicare is pursuing recovery directly from the applicable plan.
  • Because Medicare has the right to recover conditional payments from the beneficiary, the primary payer, or any other entity that has the proceeds from payment by the primary plan, Medicare’s decision regarding who/what entity it is pursuing recovery from is not subject
    to appeal.
  • Notice of intent to appeal- where the applicable plan is the identified debtor, the beneficiary would receive notice of the applicable plan’s intent to appeal. On the other hand however, if the applicable plan is not the identified debtor, it would not receive notice of a
    beneficiary’s intent to appeal.

PMSI will be submitting commentary for the NPRM and recommends that all interested parties do so as well as the comments received will greatly impact the appeals process for applicable plans.

The NPRM can be found in the Federal Register here:

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