United States: CMS' Web Portal: Final Rule 21 CFR § 411.39 Promises Quick and Efficient Conditional Payment Resolution for Those Able to Abide by Its Strict Guidelines

The Centers for Medicare & Medicaid Services (CMS) has published its long-awaited final rule entitled "Medicare Program: Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal." From the outset of litigation, a plaintiff who is a Medicare beneficiary (or his or her attorney) must report a pending claim to CMS.  This allows Medicare to determine the amount of any conditional payments made to or on behalf of the beneficiary related to the claims at issue for which it would be entitled to seek reimbursement. To date, this process has presented certain timing and other logistical challenges. CMS' publication of this final rule offers involved parties a streamlined mechanism by which they can access Medicare Secondary Payer (MSP) conditional payment amounts, and it also provides a detailed timeline by which certain information must be communicated to CMS.

This final rule stems from the January 10, 2013, enactment of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act), which allows involved parties to learn the final amount owed to Medicare in advance of any settlement, instead of having to wait until after the case is resolved.  The SMART Act specifically requires CMS to promulgate a rule establishing a Web portal though which beneficiaries (as well as their attorneys or other representatives, and authorized applicable plans—i.e., the defendants—who have pending liability insurance, no-fault insurance, or workers' compensation settlements, judgments, awards, or other payments) can access related CMS' MSP conditional payment amounts and claims detail information.

On September 20, 2013, CMS published an interim final rule with a comment period. The interim final rule did two things: (1) it specified a timeline for developing a multi-factor 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; and (2) it required CMS to add additional functionality, such as allowing 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 related disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.

CMS received 21 public comments to the interim final rule. After considering the comments, CMS published the final rule May 17, 2016, which took effect June 16, 2016.  CMS finalized the proposed provisions with a few modifications.  The key takeaway points and deadlines imposed by the final rule are:

  • A Medicare beneficiary may access his or her MSP conditional payment information via the Web portal, so long as he or she creates an account to access his or her Medicare information through the CMS website, and has notified the proper Medicare contractor of a pending insurance claim, workers' compensation claim, settlement, judgment, award, or payment.
  • The Medicare beneficiary and authorized applicable plans (as defined in section 1862(b)(8)(F) of the SMART Act, 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 by registering through the Web portal. For parties other than the beneficiary to access such information, they must demonstrate written proof of representation or consent to release (depending on the nature of the relationship between the beneficiary and the individual or entity requesting the beneficiary's information). It is important to note, too, that although an insurance carrier has the ability to initiate the conditional payment recovery process, active participation in the process requires authorization by the beneficiary. As a result, new releases must be signed by the beneficiary in order for an insurer to receive information, dispute a conditional payment amount, and/or to participate in any resolution.
  • Up to 120 days before the anticipated date of settlement, judgment, award, or other payment, the beneficiary, or his or her attorney or authorized representative (or 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 fewer from the date of notification.
  • From there, the Medicare contractor will compile the claims for which Medicare has paid conditionally related to the pending settlement, judgment, award, or payment, within 65 days or fewer of receiving the initial notice of the pending settlement, judgment, award, or other payment, and posts a recovery case on the Web portal. The Act permits CMS to extend its response time by an additional 30 days if it determines additional time is required to address related claims that Medicare has paid conditionally.
  • Once the recovery case is posted, the beneficiary, or his or her attorney or other authorized representative, can then address any discrepancies by disputing individual conditional payments (but just once, and only once) if he or she believes the conditional payment included is unrelated to the pending insurance, workers' compensation settlement, judgment, award, or other payment.
  • Any dispute submitted through the Web portal will be resolved within 11 business days of receipt of the dispute and any required supporting documentation.
  • After the resolution of any such disputes, the beneficiary or his or her attorney may download a conditional payment summary statement through the Web portal. If the download is within three days of the settlement, judgment, award, or other payment, that conditional payment summary statement will be Medicare's final conditional payment amount.
  • If any claim disputes have not been resolved fully, the beneficiary or his or her attorneys may not download a final conditional payment summary statement.
  • After a settlement, judgment, award, or other payment has been secured, the beneficiary – or his or her attorney or other representative – must submit through the Web portal within 30 days or fewer: documentation of the date of the settlement, judgment, award, or other payment, including the total settlement amount, the attorney fee amount or percentage, or additional costs borne by the beneficiary to obtain his/her settlement, judgment, award, or other payment.
  • If this information is not provided within 30 days of securing the settlement, judgment, award, or other payment, the final conditional payment amount obtained through the Web portal is void, and CMS will not be bound.
  • Finally, once the settlement, judgment, award, or other payment information is received, CMS will then apply a pro rata reduction to the final conditional payment amount in accordance with 21 CFR section 411.37, and will issue a final MSP recovery demand letter.

Although the resolution of Medicare claims can still be a drawn-out process, CMS. in publishing the final rule, aimed to streamline the process for all parties involved. The publication of this final rule is a helpful step in allowing parties to understand amounts required to reimburse Medicare, making settlement negotiations more productive and efficient.  The regulations outlined above are codified at 21 CFR Part 411.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions