CMS Publishes Final Regulations on Conditional Payment Resolution via Web Portal

031016_1424_CMSPublishe1.jpgOn May 17, 2016, the US Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) published final rules on 42 CFR Part 411, Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal. The final rule “specifies the process and timeline for expanding CMS’ existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).” The final rule “specifies a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS’ MSP conditional payment amounts and claims detail information via the MSP Web portal.” The final rule also “adds functionality to the existing MSP Web portal by permitting users to notify CMS that the specified case is approaching settlement; obtain time and date stamped final conditional payment summary statements and amounts before reaching settlement; and ensure that relatedness disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.”

The 2013 SMART Act and Interim Final Rule

The Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act) was enacted on January 10, 2013. Section 201 of the SMART Act amended section 1862(b)(2)(B) of the Social Security Act by requiring “the establishment of an internet Web site (referred to as the ‘‘Web portal’’) through which beneficiaries, their attorneys or other representatives, and authorized applicable plans (as defined in section 1862(b)(8)(F) of the Act (42 U.S.C. 1395y(b)(8)(F)) who have pending liability insurance (including self-insurance), no-fault insurance, or workers’ compensation settlements, judgments, awards, or other payments, may access related CMS’ MSP conditional payment amounts and claims detail information.”

On September 20, 2013, CMS published an interim final rule with comment period (IFC) that specified “a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS’ MSP conditional payment amounts and claims detail information via the MSP Web portal, add functionality to the existing MSP Web portal that permits users to notify CMS that the specified case is approaching settlement; obtain time and date stamped final conditional payment summary statements and amounts before reaching settlement; and ensure that relatedness disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.” CMS received 21 timely public comments.

CMS Final Changes to 42 CFR Section 411.39 Regulations

After consideration of all of the comments received, CMS finalized the provisions included in the September 2013 IFC with the following modifications to § 411.39:

  • Paragraph (a), removed the definition of ‘‘Medicare Secondary Payer conditional payment information’’ to avoid redundancy and confusion.
  • Paragraph (b)(1)(ii), revised language
  • Paragraph (b)(2), removed language related to Web portal functionality before 1/1/2016.
  • Paragraph (c)(1)(iii), removed the claims refresh requirement.
  • Paragraphs (c)(1)(iv) and (v), revised the language to clarify that a claim, meaning an individual conditional payment amount, or line item, on a payment summary statement, may be disputed once and only once. An individual or entity may submit disputes more than once, but never for the same conditional payment or line item.
  • Paragraph (c)(1)(viii), revised the language to clarify that settlement information must be submitted within no more than 30 days of reaching settlement in order for CMS to remain bound by any final conditional payment amount it provided through the Web portal.
  • Paragraph (c)(2), revised the language to clarify that a final conditional payment amount may be requested at any time after a recovery case has been posted on the Web portal.

Accessing Conditional Payment Information via the Web Portal

A beneficiary may access his or her Medicare Secondary Payer conditional payment information via the Medicare Secondary Payer Recovery Web Portal so long as the beneficiary creates an account to access his or her Medicare information through the CMS website and the appropriate Medicare contractor has received initial notice of a pending liability insurance (including self-insurance), no-fault insurance, or workers’ compensation settlement, judgment, award, or other payment and has posted the recovery case on the Web portal.

An applicable plan may obtain read only access of conditional payment information via the MSP Recovery Portal if the applicable plan obtains from the beneficiary, and submits to the appropriate CMS contractor, proper consent to release. An applicable plan may only obtain a final conditional payment amount related to a pending liability insurance (including self-insurance), no fault insurance, or workers’ compensation settlement, judgment, award, or other payment if the applicable plan has obtained from the beneficiary, and submitted to the appropriate CMS contractor, proper proof of representation.

Notifying CMS 120 Days Before Settlement, Judgment, Award, or Other Payment

Up to 120 days before the anticipated date of a settlement, judgment, award, or other payment, the beneficiary, or his or her attorney, other representative, or authorized applicable plan may notify CMS, once and only once, via the Web portal, that a settlement, judgment, award or other payment is expected to occur within 120 days or less from the date of notification.

CMS Compiles Conditional Payment Information and Post it on Web Portal Within 65 Days

The Medicare contractor compiles claims for which Medicare has paid conditionally that are related to the pending settlement, judgment, award, or other payment within 65 days or less of receiving the initial notice of the pending settlement, judgment, award, or other payment and posts a recovery case on the Web portal.

Resolving Disputed Discrepancies Within 11 Business Days

The beneficiary, or his or her attorney, or other representative may then address discrepancies by disputing individual conditional payments, once and only once, if he or she believes that the conditional payment included in the most up-to-date conditional payment summary statement is unrelated to the pending liability insurance (including self-insurance), no-fault insurance, or workers’ compensation settlement, judgment, award, or other payment.

The dispute process is not an appeals process, nor does it establish a right of appeal regarding that dispute. There is no administrative or judicial review related to this dispute process. However, disputes submitted through the Web portal will be resolved within 11 business days of receipt of the dispute and any required supporting documentation.

Requesting a Time and Date Stamped Summary Statement Within 3 Days of Settlement

When such disputes have been fully resolved, the beneficiary, or his or her attorney or other representative, may download or otherwise request a time and date stamped conditional payment summary statement through the Web portal. If the download or request is within 3 days of the date of settlement, judgment, award, or other payment, that conditional payment summary statement will constitute Medicare’s final conditional payment amount. However, if any claim disputes have not been fully resolved, he or she may not download or otherwise request a final conditional payment summary statement.

Submitting Documentation Within 30 Days of Settlement, Judgment, Award, or Payment

Within 30 days or less of securing a settlement, judgment, award, or other payment, the beneficiary, or his or her attorney or other representative, must submit through the Web portal documentation of the date of settlement, judgment, award, or other payment, including the total settlement amount, the attorney fee amount or percentage, additional costs borne by the beneficiary to obtain his or her settlement, judgment, award, or other payment. If settlement information is not provided within 30 days or less of securing the settlement, the final conditional payment amount obtained through the Web portal is void.

Procurement Costs Pro Rata Reduction and Issuance of Final Recovery Demand Letter

Once settlement, judgment, award, or other payment information is received, CMS will apply a pro rata reduction to the final conditional payment amount in accordance with § 411.37 and will issue a final MSP recovery demand letter.

Resolution of conditional payments continues to be a challenge for many beneficiaries, attorneys, corporations and their insurers. Case law continues to demonstrate it is creating havoc on settlements and producing substantial liability to beneficiaries, to beneficiaries’ attorneys and law firms, to self-insureds, and to insurers. These latest changes, brought about by the SMART Act, are well meaning. Their purpose is to provide all parties involved with a consistent mechanism to be able to resolve conditional payments on an expedited basis. However, there are strict time limitations that if not adhered to, will prevent parties from enjoying the quick and efficient resolution promised by the creation of Section 411.39. Optum Settlement Solutions’ conditional payments resolution team will assist clients sign up for the web portal, will help clients notify CMS of a potential settlement 120 days prior to taking place, will review the conditional payment letter produced within 65 days, will dispute any discrepancies, will update clients upon resolution of such discrepancies within 11 days, will ask for a demand amount within 3 days of the settlement date, will forward to CMS settlement documentation within 30 days of the settlement date, and once a pro-rata share of procurement costs have been deducted, will provide our client with a final demand from CMS to be paid within 60 days for final and complete resolution. If you would like to learn more about our conditional payments resolution products and services, please contact us at 888.672.7674, or at contactus@helioscomp.com.

This entry was posted in Conditional Payments, Mandatory Insurer Reporting (MIR), Medicare Secondary Payer (MSP) on by .

About Rafael Gonzalez

As vice president of strategic solutions, Rafael Gonzalez serves as a thought leader on all aspects of Medicare and Medicaid compliance issues, including mandatory insurer reporting, conditional payments resolution, Medicare set aside allocations, CMS approval, and professional administration of Medicare set asides and special needs trusts. Prior to joining Helios, over the last 30 years, Rafael served as director of Medicare & Medicaid compliance and post settlement administration for Gould & Lamb in Bradenton, Florida. Before that, he served as chief executive officer for the Center for Lien Resolution, the Center for Medicare Set Aside Administration and the Center for Special Trusts Administration in Clearwater, Florida. Prior to that, he served as corporate counsel for FCCI Insurance, a workers’ compensation/property casualty insurance company in Sarasota, Florida. And before that, he practiced social security disability, workers’ compensation, longshore and personal injury law in Tampa, Florida. Rafael Gonzalez received his Bachelor of Science degree from the University of Florida and his Jurisprudence Doctorate degree from the Florida State University.

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