Medicare Program; Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal, 57800-57806 [2013-22934]
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Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Part 411
[CMS–6054–IFC]
RIN 0938–AR90
Medicare Program; Obtaining Final
Medicare Secondary Payer Conditional
Payment Amounts via Web Portal
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Interim final rule with comment
period.
AGENCY:
This interim final rule with
comment period 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 interim 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. It also requires that we add
functionality to the existing MSP Web
portal that permits users to: notify us
that the specified case is approaching
settlement; obtain time and date
stamped final conditional payment
summary forms 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.
DATES: Effective date: These regulations
are effective on November 19, 2013.
Comment date: To be assured
consideration, comments must be
received at one of the addresses
provided below, no later than 5 p.m. on
November 19, 2013.
ADDRESSES: In commenting, please refer
to file code CMS–6054–IFC. Because of
staff and resource limitations, we cannot
accept comments by facsimile (FAX)
transmission.
You may submit comments in one of
four ways (please choose only one of the
ways listed).
1. Electronically. You may submit
electronic comments on specific issues
in this regulation to https://
www.regulations.gov. Follow the
instructions for ‘‘Comment or
Submission’’ and enter the filecode to
find the document accepting comments.
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SUMMARY:
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2. By regular mail. You may mail
written comments (one original and two
copies) to the following address ONLY:
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, Attention: CMS–6054–
IFC, P.O. Box 8013 Baltimore, MD
21244–8013.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
3. By express or overnight mail. You
may send written comments (one
original and two copies) to the following
address ONLY: Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, Attention:
CMS–6054–IFC, Mail Stop C4–26–05,
7500 Security Boulevard, Baltimore, MD
21244–1850.
4. By hand or courier. If you prefer,
you may deliver (by hand or courier)
your written comments (one original
and two copies) before the close of the
comment period to either of the
following addresses:
a. Room 445–G, Hubert H. Humphrey
Building, 200 Independence Avenue
SW., Washington, DC 20201;
(Because access to the interior of the
HHH Building is not readily available to
persons without Federal Government
identification, commenters are
encouraged to leave their comments in
the CMS drop slots located in the main
lobby of the building. A stamp-in clock
is available for persons wishing to retain
a proof of filing by stamping in and
retaining an extra copy of the comments
being filed.)
b. 7500 Security Boulevard, Baltimore,
MD 21244–1850.
If you intend to deliver your
comments to the Baltimore address,
please call telephone number (410) 786–
9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses
indicated as appropriate for hand or
courier delivery may be delayed and
received after the comment period.
FOR FURTHER INFORMATION CONTACT:
Suzanne Mattes, (410) 786–2536.
SUPPLEMENTARY INFORMATION: Inspection
of Public Comments: All comments
received before the close of the
comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. We post all comments
received before the close of the
comment period on the following Web
site as soon as possible after they have
been received: https://regulations.gov.
Follow the search instructions on that
Web site to view public comments.
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Comments received timely will be
also available for public inspection as
they are received, generally beginning
approximately 3 weeks after publication
of a document, at the headquarters of
the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday
through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an
appointment to view public comments,
phone 1–800–743–3951.
I. Background
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 amends section
1862(b)(2)(B) of the Social Security Act
(the ‘‘Act’’) and requires the
establishment of an internet Web site
(hereinafter 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. We are
issuing this interim final rule to
implement our timeframe for the
expansion of the existing MSP Web
portal in order to comply with the
SMART Act.
The existing MSP Web portal
currently permits authorized users
(including beneficiaries, attorneys, or
other representatives) and applicable
plans to register through the Web portal
in order to access MSP conditional
payment amounts electronically and
update certain case-specific information
online.
Beneficiaries are able to log into the
existing Web portal by logging into their
MyMedicare.gov accounts. The Web
portal provides detailed data on claims
that Medicare paid conditionally that
are related to the beneficiary’s liability
insurance (including self-insurance), nofault insurance, or workers’
compensation settlement, judgment,
award, or other payment (hereinafter,
for ease of reference, referred to as
‘‘settlement(s)’’). This detailed claims
data for each claim includes dates of
service, provider information, total
charges, conditional payment amounts,
and diagnosis codes.
A beneficiary’s attorney or other
representative may also register through
the Web portal to access conditional
payment information. However, in
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accordance with federal privacy and
security requirements, including the
Federal Information Security
Management Act (FISMA), we do not
permit attorneys and other
representatives to view certain aspects
of the beneficiary’s claims data via the
internet. This means that an attorney or
other representative currently must preregister to use the Web portal and must
submit proper proof of representation
before he or she is able to access a
beneficiary’s case, but the Web portal
limits what the attorney or other
representative is able to view.
Once the attorney or other
representative is designated as an
authorized user, he or she may log into
the Web portal to view the conditional
payment amount and perform certain
actions, which include addressing
discrepancies by disputing claims and
uploading settlement information.
However, in order to dispute claims, the
attorney or other representative must
have a conditional payment letter (CPL)
in hand. A CPL contains data points like
diagnosis codes, provider names, and
dates of service. The Web portal restricts
or ‘‘masks’’ certain information—
including diagnosis codes, provider
names, and dates of service—for
individuals other than the beneficiary.
Using the CPL, the attorney or other
representative can decipher the masked
claim-specific information, identify the
claim lines that the attorney or
representative believe are unrelated to
the settlement, and issue the dispute to
Medicare’s contractor through the Web
portal. The masked information will not
be displayed through the Web portal to
a beneficiary’s attorney or other
representative until we implement a
multifactor authentication solution.
These same security limitations mean
that the applicable plan must also preregister and must submit proper consent
to release in order to access a
beneficiary’s case through the Web
portal. The applicable plan is unable to
take action on a beneficiary’s case
unless it has obtained proof of
representation that authorizes it to act
on behalf of the beneficiary.
As described later in this interim final
rule with comment period, we intend to
implement a security feature known as
multifactor authentication to the Web
portal. Multifactor authentication uses a
combination of two or more different
methods to authenticate a user identity.
More information regarding multifactor
authentication may be found in the CMS
Enterprise Information Security Group
Risk Management Handbook, Volume
III, Standard 3.1, CMS Authentication
Standards, Version 1.2 (Document
Number: CMS–CISO–2012–vIII–STD3.1)
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This version of CMS’ Risk Management
Handbook can be found at https://
www.cms.gov/Research-Statistics-Dataand-Systems/CMS-InformationTechnology/InformationSecurity/
Downloads/RMH_VIII_3-1_
Authentication.pdf. When we
implement multifactor authentication,
an authorized attorney or other
representative, or an authorized
applicable plan, will be able to view
claim-specific data—including
diagnosis codes, provider names, and
dates of service—via the Web portal.
Until then, an authorized attorney or
other representative and an authorized
applicable plan may only view the total
conditional payment amount associated
with a beneficiary’s case.
In keeping with the requirements of
the SMART Act, this interim final rule
with comment period begins the process
of developing a solution that will
securely permit authorized users other
than the beneficiary to access the
beneficiary’s personal health
information via the internet. We are
adding functionality to the existing Web
portal that permits users to notify us
when the specified case is approaching
settlement, download or otherwise
obtain time and date stamped final
conditional payment summary forms
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.
II. Provisions of the Interim Final
Regulations
A. Accessing Conditional Payment
Information Through the Medicare
Secondary Payer Web Portal
We will continue to provide
beneficiaries with access to details on
claims related to their pending
settlements through the Web portal.
This will include dates of service,
provider names, diagnosis codes, and
conditional payment amounts.
Beneficiaries and their attorneys or
other representatives will continue to be
able to dispute the relatedness of claims
and submit a notice of settlement and
other types of documentation through
the Web portal. We will add
functionality that will permit
beneficiaries to download or otherwise
electronically obtain time and date
stamped payment summary forms, and
exchange other information securely
with Medicare’s contractor via the Web
portal.
A beneficiary’s attorney or other
representative and the applicable plan
will continue to be able to register
through the Web portal and access
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conditional payment information
related to a beneficiary’s pending
settlement. However, their access will
remain limited until we develop and
implement a multifactor authentication
process, as defined in and required by
the most recent version of the CMS
Enterprise Information Security Group
Risk Management Handbook, Volume
III, Standard 3.1, CMS Authentication
Standards, developed in accordance
with FISMA and regulations
promulgated by the National Institute of
Standards and Technology (NIST). The
most recent version of CMS’ Risk
Management Handbook can be found at
https://www.cms.gov/Research-StatisticsData-and-Systems/CMS-InformationTechnology/InformationSecurity/
Downloads/RMH_VIII_3-1_
Authentication.pdf.
We will develop a multifactor
authentication solution for use in the
Web portal within 90 days of the
effective date of this interim final rule
with comment period. We expect to
implement the solution no later than
January 1, 2016. Once this solution has
been implemented, a beneficiary’s
authorized attorney or other
representatives or an authorized
applicable plan that has appropriately
registered to access the Web portal will
have access to the beneficiary’s MSP
conditional payment information for a
specified MSP recovery case. This
information will include dates of
services, provider names, diagnosis
codes, and conditional payment
amounts.
B. Obtaining a Final Conditional
Payment Amount
The beneficiary, his or her attorney or
other representative, or an applicable
plan is required to provide initial notice
of pending liability insurance (including
self-insurance), no-fault insurance, and
workers’ compensation settlements,
judgments, awards, or other payment to
the appropriate Medicare contractor at
least 185 days before the anticipated
date of settlement. This 185-day
timeframe encompasses the 120-day
‘‘protected’’ period in section
1862(b)(2)(B)(vii)(I) of the Act and the
65-day Secretarial response period in
section 1862(b)(2)(B)(vii)(V) of the Act.
The Medicare contractor will compile
and post claims that are related to the
pending settlement for which Medicare
has paid conditionally. This information
will be posted to the Web portal within
65 days of receipt of the initial notice of
the pending settlement.
Section 1862(b)(2)(B)(vii)(V) of the
Act permits us to extend our response
timeframe by an additional 30 days if
we determine that additional time is
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required to address related claims that
Medicare has paid conditionally. We
anticipate that such situations would
include, but are not limited to, the
following:
• A recovery case that requires CMS’
contractor to review the systematic
filtering of associated claims for a case
and subsequently adjust those filters
manually to ensure that claims are
related to the pending settlement, and
• CMS systems failures that do not
otherwise fall within the definition of
exceptional circumstances.
Section 1862(b)(2)(B)(vii)(V) of the
Act also permits us to further extend our
claims compilation response timeframe
by the number of days required to
address the issue(s) that resulted from
‘‘exceptional circumstances’’ pertaining
to a failure in the claims and payment
posting system. Per the statute, such
situations must be defined in
regulations in a manner such that ‘‘not
more than 1 percent of the repayment
obligations . . . would qualify as
exceptional circumstances.’’ Therefore,
we are adding new regulations at 42
CFR 411.39 that define ‘‘exceptional
circumstances’’ to include, but not be
limited to: System failure(s) due to
consequences of extreme adverse
weather (loss of power, flooding, etc.);
security breaches of facilities or
network(s); terror threats; strikes and
similar labor actions; civil unrest,
uprising or riot; destruction of business
property (as by fire, etc.); sabotage;
workplace attack on personnel; and
similar circumstances beyond the
ordinary control of government or
private sector officers or management.
The beneficiary, or 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 Medicare) and up
to 120 days before the anticipated date
of settlement.
It is important to note that the
beneficiary, or his or her attorney or
other representative, may request a
claims refresh via the Web portal any
time after Medicare posts its initial
claims compilation. However, the
beneficiary, or 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. We 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.
If the beneficiary, or his or her
authorized attorney or other
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representative, believes that claims
included in the most up-to-date
conditional payment summary form are
unrelated to the pending liability
insurance (including self-insurance), nofault insurance, or workers’
compensation ‘‘settlement’’, he or she
may address discrepancies through a
dispute process available through the
Web portal. The beneficiary, or his or
her authorized attorney or other
representative, may dispute a claim
once and only once. The beneficiary or
his or her authorized attorney or other
representative may be required to
submit additional supporting
documentation in a form and manner
specified by the Secretary to support the
assertion that the disputed claim is
unrelated to the settlement.
Disputes submitted through the Web
portal will be resolved within 11
business days of receipt of the dispute
and any required supporting
documentation as per
1862(b)(2)(B)(vii)(IV) of the Act.
After disputes have been fully
resolved, and the beneficiary, or his or
her attorney or other representative, has
executed a final claims refresh and
obtained confirmation that the refresh
has been performed, he or she may
download or otherwise request a time
and date stamped final conditional
payment summary form 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. If the beneficiary or his
or her attorney is approaching
settlement and any disputes have not
been fully resolved, he or she may not
download or otherwise request a final
conditional payment summary form
until the dispute has been resolved.
It is important to note that, as per
section 1862(b)(2)(B)(vii)(IV) of the Act,
this dispute process is not an appeals
process, nor does it establish a right of
appeal regarding that dispute. There
will be no administrative or judicial
review related to this dispute process.
However, the beneficiary will maintain
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.
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 specified by
the Secretary. We expect that the
amount and type of ‘‘settlement’’
information required will be the same
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information that CMS typically collects
to calculate its final demand amount.
This information will include, but is not
limited to: The date of ‘‘settlement’’, the
total ‘‘settlement’’ amount, the attorney
fee amount or percentage, and
additional costs borne by the beneficiary
to obtain his or her ‘‘settlement’’. We
will require that this information is
provided within 30 days of the date of
settlement. Otherwise, the final
conditional payment amount obtained
through the Web portal will expire.
Once settlement information is received,
we will apply a pro rata reduction to the
final conditional payment amount in
accordance with 42 CFR 411.37 and
issue a final MSP recovery demand
letter. We understand that providing
settlement information within 30 days
of the date of settlement may be
challenging at times, but we would like
to encourage beneficiaries and their
attorneys or other representatives to
assist us in providing swift resolutions
to these matters and promotE timely
recoveries for Medicare. We expect to
incorporate a method into the Web
portal that will allow settlement
information to be entered directly
through the Web portal and/or uploaded
directly through the Web portal.
If the underlying liability insurance
(including self-insurance), no-fault
insurance, or workers’ compensation
claim derives from alleged exposure to
a toxic substance or environmental
hazard, ingestion of pharmaceutical
drug or other product or substance, or
implantation of a medical device, joint
replacement or something similar, the
beneficiary or his or her attorney or
other representative must provide notice
to the CMS contractor via the Web
portal before beginning the process to
obtain a final conditional payment
summary form and amount through the
Web portal. Many of these types of
recovery cases require additional
manual filtering and review to ensure
that the claims included in the payment
summary form are related to the
pending settlement.
An applicable plan may obtain a final
conditional payment amount related to
a pending liability insurance (including
self-insurance), no-fault insurance, or
workers’ compensation ‘‘settlement’’, in
the form and manner described in 42
CFR 411.39(c), if the applicable plan has
properly registered to use the Web
portal and has obtained from the
beneficiary and submitted to the
appropriate Medicare contractor proper
proof of representation. The applicable
plan may obtain read only access if the
applicable plan obtains from the
beneficiary proper consent to release
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services that are related to the
beneficiary’s settlement and that are
furnished prior to the time and date
stamped on the final conditional
payment summary form. Systems and
process changes to provide final
BILLING CODE 4120–01–C
which the rule is proposed, and the
terms and substances of the proposed
rule or a description of the subjects and
issues involved. Under Section 553(b) of
the Administrative Procedure Act, this
procedure can be waived for good cause,
if an agency finds that notice and public
comment thereon are impracticable,
unnecessary, or contrary to the public
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III. Waiver of Proposed Rulemaking
We ordinarily publish a notice of
proposed rulemaking in the Federal
Register and invite public comment on
the proposed rule. The notice of
proposed rulemaking includes a
reference to the legal authority under
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conditional payment summary forms
and amounts via the Web portal will be
implemented no later than January 1,
2016.
BILLING CODE 4120–01–P
interest and incorporates a statement of
the finding and its reasons in the rule
issued. We find that notice-andcomment rulemaking is unnecessary for
this rule and that waiving it is in the
public interest.
The SMART Act amended the MSP
provisions of the Act to establish a new
clause in section 1862(b)(2)(B)(vii) of
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ER20SE13.006
and submits it to the appropriate
Medicare contractor.
The final conditional payment
amounts obtained via the Web portal
represent Medicare covered and
otherwise reimbursable items and
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the Act. This amendment requires us to
develop a Web portal through which
beneficiaries, their attorneys or other
representatives, and authorized
applicable plans can obtain Medicare’s
final conditional payment information
before the date of settlement, judgment,
award, or other payment.
These new MSP provisions of the Act
focus on actions that must be taken by
the Secretary to provide the specified
Web portal service to the public. This
regulation simply provides timeframes
that the Secretary must comply with in
order to ensure the required
enhancements to the already existing
MSP Web portal are completed, and that
the functionality of the Web portal
provides the information required by
the Act. Accordingly, we find that
notice-and-comment rulemaking is
unnecessary because this regulation
provides an additional procedural
option for stakeholders, but does not
change any substantive provision of the
MSP program or otherwise impact our
administration of the MSP program. In
addition, we find that waiving noticeand-comment rulemaking would be in
the public interest because requiring a
notice of proposed rulemaking and
public comment thereon would delay
public access to this Web portal. We
note that the SMART Act requires that
we promulgate regulations to carry out
the development and implementation of
this Web portal not more than 9 months
after enactment of this new legislation
(which occurred January 10, 2013). For
all of these reasons, we find good cause
to waive the notice of proposed
rulemaking and to issue this final rule
on an interim basis. We are providing a
60-day public comment period.
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IV. Collection of Information
Requirements
This document does not impose
information collection and
recordkeeping requirements.
Consequently, it need not be reviewed
by the Office of Management and
Budget under the authority of the
Paperwork Reduction Act of 1995.
V. Regulatory Impact Statement
We have examined the impact of this
rule as required by Executive Order
12866 on Regulatory Planning and
Review (September 30, 1993), Executive
Order 13563 on Improving Regulation
and Regulatory Review (February 2,
2011), the Regulatory Flexibility Act
(RFA) (September 19, 1980, Pub. L. 96–
354), section 1102(b) of the Social
Security Act, section 202 of the
Unfunded Mandates Reform Act of 1995
(March 22, 1995; Pub. L. 104–4),
Executive Order 13132 on Federalism
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(August 4, 1999) and the Congressional
Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). A regulatory impact analysis
(RIA) must be prepared for major rules
with economically significant effects
($100 million or more in any 1 year). We
have determined that the effect of this
proposed rule on the economy and the
Medicare program is not economically
significant, since it imposes certain
requirements on the Agency to merely
improve its current mechanism for
providing conditional payment
information to beneficiaries, their
attorneys or other representatives, and
authorized applicable plans.
The RFA requires agencies to analyze
options for regulatory relief of small
entities. For purposes of the RFA, small
entities include small businesses,
nonprofit organizations, and small
governmental jurisdictions. Most
hospitals and most other providers and
suppliers are small entities, either by
nonprofit status or by having revenues
of less than $7.0 million to less than
$35.5 million in any 1 year. Individuals
and states are not included in the
definition of a small entity. We have
determined that this proposed rule
would not have a significant economic
impact on a substantial number of small
entities because there is and will be no
change in the administration of the MSP
provisions. Therefore, we are not
preparing an analysis for the RFA.
In addition, section 1102(b) of the Act
requires us to prepare an RIA if a rule
may have a significant impact on the
operations of a substantial number of
small rural hospitals. This analysis must
conform to the provisions of section 604
for proposed rules of the RFA. For
purposes of section 1102(b) of the Act,
we define a small rural hospital as a
hospital that is located outside of a
Metropolitan Statistical Area for
Medicare payment regulations and has
fewer than 100 beds. We have
determined that this interim final rule
with comment period would not have a
significant effect on the operations of a
substantial number of small rural
hospitals because there is and would be
no change in the administration of the
MSP provisions. Therefore, we are not
preparing an analysis for section 1102(b)
of the Act.
Section 202 of the Unfunded
Mandates Reform Act of 1995 also
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requires that agencies assess anticipated
costs and benefits before issuing any
rule whose mandates require spending
in any 1 year of $100 million in 1995
dollars, updated annually for inflation.
In 2013, that threshold is approximately
$141 million. This proposed rule has no
consequential effect on state, local, or
tribal governments or on the private
sector because there is and will be no
change in the administration of the MSP
provisions.
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on state and local
governments, preempts state law, or
otherwise has Federalism implications.
Since this regulation does not impose
any costs on state or local governments,
the requirements of Executive Order
13132 are not applicable.
In accordance with the provisions of
Executive Order 12866, this regulation
was not reviewed by the Office of
Management and Budget.
List of Subjects in 42 CFR Part 411
Kidney diseases, Medicare, Physician
referral, Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, the Centers for Medicare &
Medicaid Services amends 42 CFR
chapter IV as set forth below:
PART 411—EXCLUSIONS FROM
MEDICARE AND LIMITATIONS ON
MEDICARE PAYMENT
1. The authority citation for part 411
continues to read as follows:
■
Authority: Secs. 1102, 1860D–1 through
1860D–42, 1871, and 1877 of the Social
Security Act (42 U.S.C. 1302, 1395w–101
through 1395w–152, 1395hh, and 1395nn).
2. Subpart B is amended by adding
§ 411.39 to read as follows:
■
§ 411.39 Automobile and liability
insurance (including self-insurance), nofault insurance, and workers’
compensation: Final conditional payment
amounts via Web portal.
(a) Definitions. For the purpose of this
section the following definitions are
applicable:
Applicable plan means the following
laws, plans, or other arrangements,
including the fiduciary or administrator
for such law, plan or arrangement:
(1) Liability insurance (including selfinsurance).
(2) No fault insurance.
(3) Workers’ compensation laws or
plans.
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Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations
Medicare Secondary Payer
conditional payment information means
all of the following:
(1) Dates of service.
(2) Provider names.
(3) Diagnosis codes.
(4) Conditional payment amounts.
(5) Claims detail information.
(b) Accessing conditional payment
information through the Medicare
Secondary Payer Web portal.
(1) Beneficiary access. A beneficiary
may access his or her Medicare
Secondary Payer conditional payment
information via the Medicare Secondary
Payer Recovery Portal (Web portal),
provided the following conditions are
met:
(i) The beneficiary creates an account
to access his or her Medicare
information through the CMS Web site.
(ii) The beneficiary provides initial
notice of a pending liability insurance
(including self-insurance), no-fault
insurance, or workers’ compensation
settlement, judgment, award, or other
payment to the appropriate Medicare
contractor at least 185 days before the
anticipated date of settlement,
judgment, award, or other payment.
(2) Beneficiary’s attorney or other
representative, or applicable plan’s
access on or before December 31, 2015.
On or before December 31, 2015, a
beneficiary’s attorney or other
representative or an applicable plan,
may do the following:
(i) View the following via the
Medicare Secondary Payer Recovery
Portal (Web portal):
(A) Total MSP conditional payment
amounts.
(B) Masked claim-specific
information, including dates of services,
provider names, and diagnosis codes,
provided the following conditions are
met:
(1) The authorized attorney or other
representative or authorized applicable
plan has properly registered to access
the Web portal.
(2) The attorney or other
representative or applicable plan
obtains proper authorization from the
beneficiary and submits it to the
appropriate Medicare contractor in the
form of either proof of representation or
consent to release in order to access the
beneficiary’s case specific information.
(ii) Perform the following actions via
the MSP Web portal, using the
information provided in the conditional
payment letter:
(A) Dispute claims.
(B) Upload settlement information.
(3) Beneficiary’s attorney or other
representative, or applicable plan’s
access on or after January 1, 2016. On
or after January 1, 2016, a beneficiary’s
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17:06 Sep 19, 2013
Jkt 229001
attorney or other representative or an
applicable plan, may do the following:
(i) Access conditional payment
information via the MSP Recovery
Portal (Web portal) using the multifactor
authentication processes provided that
the following conditions are met:
(A) The requirement described in
paragraph (b)(2) of this section.
(B) The beneficiary, his or her
authorized attorney or other
representative, or an authorized
applicable plan, provides initial notice
as described in paragraph (b)(2)(ii) of
this section.
(ii)(A) May dispute claims and upload
settlement information via the Web
portal using multifactor authentication;
and
(B) Will no longer need a conditional
payment letter to obtain claim-specific
information.
(c) Obtaining a final conditional
payment amount. (1) A beneficiary, or
his or her attorney or other
representative, or an applicable plan,
may obtain a final conditional payment
amount related to a pending liability
insurance (including self-insurance), nofault insurance, or workers’
compensation settlement, judgment,
award, or other payment using the
following process:
(i) The beneficiary, his or her attorney
or other representative, or an applicable
plan, provides initial notice of a
pending liability insurance (including
self-insurance), no-fault insurance, and
workers’ compensation settlement,
judgment, award, or other payment to
the appropriate Medicare contractor at
least 185 days before the anticipated
date of settlement, judgment, award, or
other payment.
(ii) The Medicare contractor compiles
and posts claims for which Medicare
has paid conditionally that are related to
the pending settlement, judgment,
award, or other payment within 65 days
of receiving the initial notice of the
pending settlement, judgment, award, or
other payment.
(A) CMS may extend its response
timeframe by an additional 30 days
when it determines that additional time
is required to address claims that
Medicare has paid conditionally that are
related to the settlement, judgment,
award, or other payment in situations
including, but not limited to, the
following:
(1) A recovery case that requires
manual filtering to ensure that
associated claims are related to the
pending settlement, judgment, award, or
other payment.
(2) Internal CMS systems failures not
otherwise considered caused by
exceptional circumstances.
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Sfmt 4700
57805
(B) In exceptional circumstances,
CMS may further extend its response
timeframe by the number of days
required to address the issue that
resulted from such exceptional
circumstances. Exceptional
circumstances include, but are not
limited to the following:
(1) Systems failure(s) due to
consequences of extreme adverse
weather (loss of power, flooding, etc.).
(2) Security breaches of facilities or
network(s).
(3) Terror threats; strikes and similar
labor actions.
(4) Civil unrest, uprising or riot.
(5) Destruction of business property
(as by fire, etc.).
(6) Sabotage.
(7) Workplace attack on personnel.
(8) Similar circumstances beyond the
ordinary control of government, private
sector officers or management.
(iii) Beginning any time after CMS
posts its initial claims compilation, and
up to 120 days before the anticipated
date of a settlement, judgment, award,
or other payment, the beneficiary, or his
or her attorney, or other representative
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.
(A) On or before December 31, 2015,
the beneficiary, or his or her attorney, or
other representative must request an
update of claim and payment
information (hereafter referred to as a
claims refresh) via the Web portal and
await confirmation that the claims
refresh has been completed. CMS
provides confirmation of the claims
refresh completion through the Web
portal no later than 5 business days after
the electronic request is initiated.
(B) On or after January 1, 2016, CMS
provides an uninitiated claims refresh
via updated functionality to the Web
portal.
(iv) The beneficiary, or his or her
attorney, or other representative may
address discrepancies by disputing a
claim, once and only once, if he or she
believes that the claim included in the
most up-to-date conditional payment
summary form is unrelated to the
pending liability insurance (including
self-insurance), no-fault insurance, or
workers’ compensation settlement,
judgment, award, or other payment.
(A) The dispute process is not an
appeals process, nor does it establish a
right of appeal regarding that dispute.
There will be no administrative or
judicial review related to this dispute
process.
(B) The beneficiary, or his or her
attorney or other representative may be
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required to submit supporting
documentation in the form and manner
specified by the Secretary to support his
or her dispute.
(v) Disputes submitted through the
Web portal are resolved within 11
business days of receipt of the dispute
and any required supporting
documentation.
(vi) When any disputes have been
fully resolved and the beneficiary, or his
or her attorney, or other representative
has executed and obtained confirmation
of the completion of a final claims
refresh, then:
(A) The beneficiary, or his or her
attorney or other representative, may
download or otherwise request a time
and date stamped conditional payment
summary form 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 form will
constitute Medicare’s final conditional
payment amount.
(B) If the beneficiary, or his or her
attorney or other representative, is
within 3 days of the date of settlement,
judgment, award, or other payment and
any claim disputes have not been fully
resolved, he or she may not download
or otherwise request a final conditional
payment summary form.
(vii)(A) Within 30 days 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 specified by the
Secretary, including, but not limited to
the following:
(1) The date of settlement, judgment,
award, or other payment, including the
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total settlement amount, the attorney fee
amount or percentage.
(2) Additional costs borne by the
beneficiary to obtain his or her
settlement, judgment, award, or other
payment.
(B) If settlement information is not
provided within 90 days of securing the
settlement, the final conditional
payment amount obtained through the
Web portal is void.
(viii) Once settlement, judgment,
award, or other payment information is
received, CMS applies a pro rata
reduction to the final conditional
payment amount in accordance with
§ 411.37 and issues a final MSP recovery
demand letter.
(2) If the underlying liability
insurance (including self-insurance), nofault insurance, or workers’
compensation claim derives from one of
the following, the beneficiary, or his or
her attorney or other representative,
must provide notice to CMS’ contractor
via the Web portal in order to obtain a
final conditional payment summary
form and amount through the Web
portal:
(i) Alleged exposure to a toxic
substance,
(ii) Environmental hazard,
(iii) Ingestion of pharmaceutical drug
or other product or substance,
(iv) Implantation of a medical device,
joint replacement, or something similar.
(3) An applicable plan may 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 in the form and manner
described in § 411.38(b) if the applicable
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plan has properly registered to use the
Web portal and has obtained from the
beneficiary, and submitted to the
appropriate CMS contractor, proper
proof of representation. The applicable
plan may obtain read only access if the
applicable plan obtains proper consent
to release from the beneficiary, and
submits it to the appropriate CMS
contractor.
(4) On or after January 1, 2016, the
MSP Web portal will include
functionality to provide final MSP
conditional payment summary forms
and amounts.
(d) Obligations with respect to future
medical items and services. Final
conditional payment amounts obtained
via the Web portal represent Medicare
covered and otherwise reimbursable
items and services that are related to the
beneficiary’s settlement, judgment,
award, or other payment furnished
before the time and date stamped on the
final conditional payment summary
form.
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: July 18, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: September 11, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human
Services.
[FR Doc. 2013–22934 Filed 9–19–13; 8:45 am]
BILLING CODE 4120–01–P
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Agencies
[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Rules and Regulations]
[Pages 57800-57806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22934]
[[Page 57800]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 411
[CMS-6054-IFC]
RIN 0938-AR90
Medicare Program; Obtaining Final Medicare Secondary Payer
Conditional Payment Amounts via Web Portal
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Interim final rule with comment period.
-----------------------------------------------------------------------
SUMMARY: This interim final rule with comment period 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 interim 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. It also
requires that we add functionality to the existing MSP Web portal that
permits users to: notify us that the specified case is approaching
settlement; obtain time and date stamped final conditional payment
summary forms 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.
DATES: Effective date: These regulations are effective on November 19,
2013.
Comment date: To be assured consideration, comments must be
received at one of the addresses provided below, no later than 5 p.m.
on November 19, 2013.
ADDRESSES: In commenting, please refer to file code CMS-6054-IFC.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed).
1. Electronically. You may submit electronic comments on specific
issues in this regulation to https://www.regulations.gov. Follow the
instructions for ``Comment or Submission'' and enter the filecode to
find the document accepting comments.
2. By regular mail. You may mail written comments (one original and
two copies) to the following address ONLY: Centers for Medicare &
Medicaid Services, Department of Health and Human Services, Attention:
CMS-6054-IFC, P.O. Box 8013 Baltimore, MD 21244-8013.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments (one
original and two copies) to the following address ONLY: Centers for
Medicare & Medicaid Services, Department of Health and Human Services,
Attention: CMS-6054-IFC, Mail Stop C4-26-05, 7500 Security Boulevard,
Baltimore, MD 21244-1850.
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments (one original and two copies) before the
close of the comment period to either of the following addresses:
a. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue
SW., Washington, DC 20201;
(Because access to the interior of the HHH Building is not readily
available to persons without Federal Government identification,
commenters are encouraged to leave their comments in the CMS drop slots
located in the main lobby of the building. A stamp-in clock is
available for persons wishing to retain a proof of filing by stamping
in and retaining an extra copy of the comments being filed.)
b. 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
FOR FURTHER INFORMATION CONTACT: Suzanne Mattes, (410) 786-2536.
SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments
received before the close of the comment period are available for
viewing by the public, including any personally identifiable or
confidential business information that is included in a comment. We
post all comments received before the close of the comment period on
the following Web site as soon as possible after they have been
received: https://regulations.gov. Follow the search instructions on
that Web site to view public comments.
Comments received timely will be also available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Background
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 amends section 1862(b)(2)(B) of the Social
Security Act (the ``Act'') and requires the establishment of an
internet Web site (hereinafter 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. We are issuing this interim final rule to implement our
timeframe for the expansion of the existing MSP Web portal in order to
comply with the SMART Act.
The existing MSP Web portal currently permits authorized users
(including beneficiaries, attorneys, or other representatives) and
applicable plans to register through the Web portal in order to access
MSP conditional payment amounts electronically and update certain case-
specific information online.
Beneficiaries are able to log into the existing Web portal by
logging into their MyMedicare.gov accounts. The Web portal provides
detailed data on claims that Medicare paid conditionally that are
related to the beneficiary's liability insurance (including self-
insurance), no-fault insurance, or workers' compensation settlement,
judgment, award, or other payment (hereinafter, for ease of reference,
referred to as ``settlement(s)''). This detailed claims data for each
claim includes dates of service, provider information, total charges,
conditional payment amounts, and diagnosis codes.
A beneficiary's attorney or other representative may also register
through the Web portal to access conditional payment information.
However, in
[[Page 57801]]
accordance with federal privacy and security requirements, including
the Federal Information Security Management Act (FISMA), we do not
permit attorneys and other representatives to view certain aspects of
the beneficiary's claims data via the internet. This means that an
attorney or other representative currently must pre-register to use the
Web portal and must submit proper proof of representation before he or
she is able to access a beneficiary's case, but the Web portal limits
what the attorney or other representative is able to view.
Once the attorney or other representative is designated as an
authorized user, he or she may log into the Web portal to view the
conditional payment amount and perform certain actions, which include
addressing discrepancies by disputing claims and uploading settlement
information. However, in order to dispute claims, the attorney or other
representative must have a conditional payment letter (CPL) in hand. A
CPL contains data points like diagnosis codes, provider names, and
dates of service. The Web portal restricts or ``masks'' certain
information--including diagnosis codes, provider names, and dates of
service--for individuals other than the beneficiary. Using the CPL, the
attorney or other representative can decipher the masked claim-specific
information, identify the claim lines that the attorney or
representative believe are unrelated to the settlement, and issue the
dispute to Medicare's contractor through the Web portal. The masked
information will not be displayed through the Web portal to a
beneficiary's attorney or other representative until we implement a
multifactor authentication solution.
These same security limitations mean that the applicable plan must
also pre-register and must submit proper consent to release in order to
access a beneficiary's case through the Web portal. The applicable plan
is unable to take action on a beneficiary's case unless it has obtained
proof of representation that authorizes it to act on behalf of the
beneficiary.
As described later in this interim final rule with comment period,
we intend to implement a security feature known as multifactor
authentication to the Web portal. Multifactor authentication uses a
combination of two or more different methods to authenticate a user
identity. More information regarding multifactor authentication may be
found in the CMS Enterprise Information Security Group Risk Management
Handbook, Volume III, Standard 3.1, CMS Authentication Standards,
Version 1.2 (Document Number: CMS-CISO-2012-vIII-STD3.1) This version
of CMS' Risk Management Handbook can be found at https://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-Information-Technology/InformationSecurity/Downloads/RMH_VIII_3-1_Authentication.pdf. When
we implement multifactor authentication, an authorized attorney or
other representative, or an authorized applicable plan, will be able to
view claim-specific data--including diagnosis codes, provider names,
and dates of service--via the Web portal. Until then, an authorized
attorney or other representative and an authorized applicable plan may
only view the total conditional payment amount associated with a
beneficiary's case.
In keeping with the requirements of the SMART Act, this interim
final rule with comment period begins the process of developing a
solution that will securely permit authorized users other than the
beneficiary to access the beneficiary's personal health information via
the internet. We are adding functionality to the existing Web portal
that permits users to notify us when the specified case is approaching
settlement, download or otherwise obtain time and date stamped final
conditional payment summary forms 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.
II. Provisions of the Interim Final Regulations
A. Accessing Conditional Payment Information Through the Medicare
Secondary Payer Web Portal
We will continue to provide beneficiaries with access to details on
claims related to their pending settlements through the Web portal.
This will include dates of service, provider names, diagnosis codes,
and conditional payment amounts. Beneficiaries and their attorneys or
other representatives will continue to be able to dispute the
relatedness of claims and submit a notice of settlement and other types
of documentation through the Web portal. We will add functionality that
will permit beneficiaries to download or otherwise electronically
obtain time and date stamped payment summary forms, and exchange other
information securely with Medicare's contractor via the Web portal.
A beneficiary's attorney or other representative and the applicable
plan will continue to be able to register through the Web portal and
access conditional payment information related to a beneficiary's
pending settlement. However, their access will remain limited until we
develop and implement a multifactor authentication process, as defined
in and required by the most recent version of the CMS Enterprise
Information Security Group Risk Management Handbook, Volume III,
Standard 3.1, CMS Authentication Standards, developed in accordance
with FISMA and regulations promulgated by the National Institute of
Standards and Technology (NIST). The most recent version of CMS' Risk
Management Handbook can be found at https://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-Information-Technology/InformationSecurity/Downloads/RMH_VIII_3-1_Authentication.pdf.
We will develop a multifactor authentication solution for use in
the Web portal within 90 days of the effective date of this interim
final rule with comment period. We expect to implement the solution no
later than January 1, 2016. Once this solution has been implemented, a
beneficiary's authorized attorney or other representatives or an
authorized applicable plan that has appropriately registered to access
the Web portal will have access to the beneficiary's MSP conditional
payment information for a specified MSP recovery case. This information
will include dates of services, provider names, diagnosis codes, and
conditional payment amounts.
B. Obtaining a Final Conditional Payment Amount
The beneficiary, his or her attorney or other representative, or an
applicable plan is required to provide initial notice of pending
liability insurance (including self-insurance), no-fault insurance, and
workers' compensation settlements, judgments, awards, or other payment
to the appropriate Medicare contractor at least 185 days before the
anticipated date of settlement. This 185-day timeframe encompasses the
120-day ``protected'' period in section 1862(b)(2)(B)(vii)(I) of the
Act and the 65-day Secretarial response period in section
1862(b)(2)(B)(vii)(V) of the Act. The Medicare contractor will compile
and post claims that are related to the pending settlement for which
Medicare has paid conditionally. This information will be posted to the
Web portal within 65 days of receipt of the initial notice of the
pending settlement.
Section 1862(b)(2)(B)(vii)(V) of the Act permits us to extend our
response timeframe by an additional 30 days if we determine that
additional time is
[[Page 57802]]
required to address related claims that Medicare has paid
conditionally. We anticipate that such situations would include, but
are not limited to, the following:
A recovery case that requires CMS' contractor to review
the systematic filtering of associated claims for a case and
subsequently adjust those filters manually to ensure that claims are
related to the pending settlement, and
CMS systems failures that do not otherwise fall within the
definition of exceptional circumstances.
Section 1862(b)(2)(B)(vii)(V) of the Act also permits us to further
extend our claims compilation response timeframe by the number of days
required to address the issue(s) that resulted from ``exceptional
circumstances'' pertaining to a failure in the claims and payment
posting system. Per the statute, such situations must be defined in
regulations in a manner such that ``not more than 1 percent of the
repayment obligations . . . would qualify as exceptional
circumstances.'' Therefore, we are adding new regulations at 42 CFR
411.39 that define ``exceptional circumstances'' to include, but not be
limited to: System failure(s) due to consequences of extreme adverse
weather (loss of power, flooding, etc.); security breaches of
facilities or network(s); terror threats; strikes and similar labor
actions; civil unrest, uprising or riot; destruction of business
property (as by fire, etc.); sabotage; workplace attack on personnel;
and similar circumstances beyond the ordinary control of government or
private sector officers or management.
The beneficiary, or 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 Medicare) and up to
120 days before the anticipated date of settlement.
It is important to note that the beneficiary, or his or her
attorney or other representative, may request a claims refresh via the
Web portal any time after Medicare posts its initial claims
compilation. However, the beneficiary, or 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. We 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.
If the beneficiary, or his or her authorized attorney or other
representative, believes that claims included in the most up-to-date
conditional payment summary form are unrelated to the pending liability
insurance (including self-insurance), no-fault insurance, or workers'
compensation ``settlement'', he or she may address discrepancies
through a dispute process available through the Web portal. The
beneficiary, or his or her authorized attorney or other representative,
may dispute a claim once and only once. The beneficiary or his or her
authorized attorney or other representative may be required to submit
additional supporting documentation in a form and manner specified by
the Secretary to support the assertion that the disputed claim is
unrelated to the settlement.
Disputes submitted through the Web portal will be resolved within
11 business days of receipt of the dispute and any required supporting
documentation as per 1862(b)(2)(B)(vii)(IV) of the Act.
After disputes have been fully resolved, and the beneficiary, or
his or her attorney or other representative, has executed a final
claims refresh and obtained confirmation that the refresh has been
performed, he or she may download or otherwise request a time and date
stamped final conditional payment summary form 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. If the beneficiary or his or her attorney is
approaching settlement and any disputes have not been fully resolved,
he or she may not download or otherwise request a final conditional
payment summary form until the dispute has been resolved.
It is important to note that, as per section 1862(b)(2)(B)(vii)(IV)
of the Act, this dispute process is not an appeals process, nor does it
establish a right of appeal regarding that dispute. There will be no
administrative or judicial review related to this dispute process.
However, the beneficiary will maintain 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.
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 specified by the Secretary. We expect
that the amount and type of ``settlement'' information required will be
the same information that CMS typically collects to calculate its final
demand amount. This information will include, but is not limited to:
The date of ``settlement'', the total ``settlement'' amount, the
attorney fee amount or percentage, and additional costs borne by the
beneficiary to obtain his or her ``settlement''. We will require that
this information is provided within 30 days of the date of settlement.
Otherwise, the final conditional payment amount obtained through the
Web portal will expire. Once settlement information is received, we
will apply a pro rata reduction to the final conditional payment amount
in accordance with 42 CFR 411.37 and issue a final MSP recovery demand
letter. We understand that providing settlement information within 30
days of the date of settlement may be challenging at times, but we
would like to encourage beneficiaries and their attorneys or other
representatives to assist us in providing swift resolutions to these
matters and promotE timely recoveries for Medicare. We expect to
incorporate a method into the Web portal that will allow settlement
information to be entered directly through the Web portal and/or
uploaded directly through the Web portal.
If the underlying liability insurance (including self-insurance),
no-fault insurance, or workers' compensation claim derives from alleged
exposure to a toxic substance or environmental hazard, ingestion of
pharmaceutical drug or other product or substance, or implantation of a
medical device, joint replacement or something similar, the beneficiary
or his or her attorney or other representative must provide notice to
the CMS contractor via the Web portal before beginning the process to
obtain a final conditional payment summary form and amount through the
Web portal. Many of these types of recovery cases require additional
manual filtering and review to ensure that the claims included in the
payment summary form are related to the pending settlement.
An applicable plan may obtain a final conditional payment amount
related to a pending liability insurance (including self-insurance),
no-fault insurance, or workers' compensation ``settlement'', in the
form and manner described in 42 CFR 411.39(c), if the applicable plan
has properly registered to use the Web portal and has obtained from the
beneficiary and submitted to the appropriate Medicare contractor proper
proof of representation. The applicable plan may obtain read only
access if the applicable plan obtains from the beneficiary proper
consent to release
[[Page 57803]]
and submits it to the appropriate Medicare contractor.
The final conditional payment amounts obtained via the Web portal
represent Medicare covered and otherwise reimbursable items and
services that are related to the beneficiary's settlement and that are
furnished prior to the time and date stamped on the final conditional
payment summary form. Systems and process changes to provide final
conditional payment summary forms and amounts via the Web portal will
be implemented no later than January 1, 2016.
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III. Waiver of Proposed Rulemaking
We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite public comment on the proposed rule. The
notice of proposed rulemaking includes a reference to the legal
authority under which the rule is proposed, and the terms and
substances of the proposed rule or a description of the subjects and
issues involved. Under Section 553(b) of the Administrative Procedure
Act, this procedure can be waived for good cause, if an agency finds
that notice and public comment thereon are impracticable, unnecessary,
or contrary to the public interest and incorporates a statement of the
finding and its reasons in the rule issued. We find that notice-and-
comment rulemaking is unnecessary for this rule and that waiving it is
in the public interest.
The SMART Act amended the MSP provisions of the Act to establish a
new clause in section 1862(b)(2)(B)(vii) of
[[Page 57804]]
the Act. This amendment requires us to develop a Web portal through
which beneficiaries, their attorneys or other representatives, and
authorized applicable plans can obtain Medicare's final conditional
payment information before the date of settlement, judgment, award, or
other payment.
These new MSP provisions of the Act focus on actions that must be
taken by the Secretary to provide the specified Web portal service to
the public. This regulation simply provides timeframes that the
Secretary must comply with in order to ensure the required enhancements
to the already existing MSP Web portal are completed, and that the
functionality of the Web portal provides the information required by
the Act. Accordingly, we find that notice-and-comment rulemaking is
unnecessary because this regulation provides an additional procedural
option for stakeholders, but does not change any substantive provision
of the MSP program or otherwise impact our administration of the MSP
program. In addition, we find that waiving notice-and-comment
rulemaking would be in the public interest because requiring a notice
of proposed rulemaking and public comment thereon would delay public
access to this Web portal. We note that the SMART Act requires that we
promulgate regulations to carry out the development and implementation
of this Web portal not more than 9 months after enactment of this new
legislation (which occurred January 10, 2013). For all of these
reasons, we find good cause to waive the notice of proposed rulemaking
and to issue this final rule on an interim basis. We are providing a
60-day public comment period.
IV. Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1995.
V. Regulatory Impact Statement
We have examined the impact of this rule as required by Executive
Order 12866 on Regulatory Planning and Review (September 30, 1993),
Executive Order 13563 on Improving Regulation and Regulatory Review
(February 2, 2011), the Regulatory Flexibility Act (RFA) (September 19,
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22,
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4,
1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major rules with
economically significant effects ($100 million or more in any 1 year).
We have determined that the effect of this proposed rule on the economy
and the Medicare program is not economically significant, since it
imposes certain requirements on the Agency to merely improve its
current mechanism for providing conditional payment information to
beneficiaries, their attorneys or other representatives, and authorized
applicable plans.
The RFA requires agencies to analyze options for regulatory relief
of small entities. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and small governmental
jurisdictions. Most hospitals and most other providers and suppliers
are small entities, either by nonprofit status or by having revenues of
less than $7.0 million to less than $35.5 million in any 1 year.
Individuals and states are not included in the definition of a small
entity. We have determined that this proposed rule would not have a
significant economic impact on a substantial number of small entities
because there is and will be no change in the administration of the MSP
provisions. Therefore, we are not preparing an analysis for the RFA.
In addition, section 1102(b) of the Act requires us to prepare an
RIA if a rule may have a significant impact on the operations of a
substantial number of small rural hospitals. This analysis must conform
to the provisions of section 604 for proposed rules of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a Metropolitan
Statistical Area for Medicare payment regulations and has fewer than
100 beds. We have determined that this interim final rule with comment
period would not have a significant effect on the operations of a
substantial number of small rural hospitals because there is and would
be no change in the administration of the MSP provisions. Therefore, we
are not preparing an analysis for section 1102(b) of the Act.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2013, that
threshold is approximately $141 million. This proposed rule has no
consequential effect on state, local, or tribal governments or on the
private sector because there is and will be no change in the
administration of the MSP provisions.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on state
and local governments, preempts state law, or otherwise has Federalism
implications. Since this regulation does not impose any costs on state
or local governments, the requirements of Executive Order 13132 are not
applicable.
In accordance with the provisions of Executive Order 12866, this
regulation was not reviewed by the Office of Management and Budget.
List of Subjects in 42 CFR Part 411
Kidney diseases, Medicare, Physician referral, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services amends 42 CFR chapter IV as set forth below:
PART 411--EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE
PAYMENT
0
1. The authority citation for part 411 continues to read as follows:
Authority: Secs. 1102, 1860D-1 through 1860D-42, 1871, and 1877
of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-
152, 1395hh, and 1395nn).
0
2. Subpart B is amended by adding Sec. 411.39 to read as follows:
Sec. 411.39 Automobile and liability insurance (including self-
insurance), no-fault insurance, and workers' compensation: Final
conditional payment amounts via Web portal.
(a) Definitions. For the purpose of this section the following
definitions are applicable:
Applicable plan means the following laws, plans, or other
arrangements, including the fiduciary or administrator for such law,
plan or arrangement:
(1) Liability insurance (including self-insurance).
(2) No fault insurance.
(3) Workers' compensation laws or plans.
[[Page 57805]]
Medicare Secondary Payer conditional payment information means all
of the following:
(1) Dates of service.
(2) Provider names.
(3) Diagnosis codes.
(4) Conditional payment amounts.
(5) Claims detail information.
(b) Accessing conditional payment information through the Medicare
Secondary Payer Web portal.
(1) Beneficiary access. A beneficiary may access his or her
Medicare Secondary Payer conditional payment information via the
Medicare Secondary Payer Recovery Portal (Web portal), provided the
following conditions are met:
(i) The beneficiary creates an account to access his or her
Medicare information through the CMS Web site.
(ii) The beneficiary provides initial notice of a pending liability
insurance (including self-insurance), no-fault insurance, or workers'
compensation settlement, judgment, award, or other payment to the
appropriate Medicare contractor at least 185 days before the
anticipated date of settlement, judgment, award, or other payment.
(2) Beneficiary's attorney or other representative, or applicable
plan's access on or before December 31, 2015. On or before December 31,
2015, a beneficiary's attorney or other representative or an applicable
plan, may do the following:
(i) View the following via the Medicare Secondary Payer Recovery
Portal (Web portal):
(A) Total MSP conditional payment amounts.
(B) Masked claim-specific information, including dates of services,
provider names, and diagnosis codes, provided the following conditions
are met:
(1) The authorized attorney or other representative or authorized
applicable plan has properly registered to access the Web portal.
(2) The attorney or other representative or applicable plan obtains
proper authorization from the beneficiary and submits it to the
appropriate Medicare contractor in the form of either proof of
representation or consent to release in order to access the
beneficiary's case specific information.
(ii) Perform the following actions via the MSP Web portal, using
the information provided in the conditional payment letter:
(A) Dispute claims.
(B) Upload settlement information.
(3) Beneficiary's attorney or other representative, or applicable
plan's access on or after January 1, 2016. On or after January 1, 2016,
a beneficiary's attorney or other representative or an applicable plan,
may do the following:
(i) Access conditional payment information via the MSP Recovery
Portal (Web portal) using the multifactor authentication processes
provided that the following conditions are met:
(A) The requirement described in paragraph (b)(2) of this section.
(B) The beneficiary, his or her authorized attorney or other
representative, or an authorized applicable plan, provides initial
notice as described in paragraph (b)(2)(ii) of this section.
(ii)(A) May dispute claims and upload settlement information via
the Web portal using multifactor authentication; and
(B) Will no longer need a conditional payment letter to obtain
claim-specific information.
(c) Obtaining a final conditional payment amount. (1) A
beneficiary, or his or her attorney or other representative, or an
applicable plan, may 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 using the following process:
(i) The beneficiary, his or her attorney or other representative,
or an applicable plan, provides initial notice of a pending liability
insurance (including self-insurance), no-fault insurance, and workers'
compensation settlement, judgment, award, or other payment to the
appropriate Medicare contractor at least 185 days before the
anticipated date of settlement, judgment, award, or other payment.
(ii) The Medicare contractor compiles and posts claims for which
Medicare has paid conditionally that are related to the pending
settlement, judgment, award, or other payment within 65 days of
receiving the initial notice of the pending settlement, judgment,
award, or other payment.
(A) CMS may extend its response timeframe by an additional 30 days
when it determines that additional time is required to address claims
that Medicare has paid conditionally that are related to the
settlement, judgment, award, or other payment in situations including,
but not limited to, the following:
(1) A recovery case that requires manual filtering to ensure that
associated claims are related to the pending settlement, judgment,
award, or other payment.
(2) Internal CMS systems failures not otherwise considered caused
by exceptional circumstances.
(B) In exceptional circumstances, CMS may further extend its
response timeframe by the number of days required to address the issue
that resulted from such exceptional circumstances. Exceptional
circumstances include, but are not limited to the following:
(1) Systems failure(s) due to consequences of extreme adverse
weather (loss of power, flooding, etc.).
(2) Security breaches of facilities or network(s).
(3) Terror threats; strikes and similar labor actions.
(4) Civil unrest, uprising or riot.
(5) Destruction of business property (as by fire, etc.).
(6) Sabotage.
(7) Workplace attack on personnel.
(8) Similar circumstances beyond the ordinary control of
government, private sector officers or management.
(iii) Beginning any time after CMS posts its initial claims
compilation, and up to 120 days before the anticipated date of a
settlement, judgment, award, or other payment, the beneficiary, or his
or her attorney, or other representative 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.
(A) On or before December 31, 2015, the beneficiary, or his or her
attorney, or other representative must request an update of claim and
payment information (hereafter referred to as a claims refresh) via the
Web portal and await confirmation that the claims refresh has been
completed. CMS provides confirmation of the claims refresh completion
through the Web portal no later than 5 business days after the
electronic request is initiated.
(B) On or after January 1, 2016, CMS provides an uninitiated claims
refresh via updated functionality to the Web portal.
(iv) The beneficiary, or his or her attorney, or other
representative may address discrepancies by disputing a claim, once and
only once, if he or she believes that the claim included in the most
up-to-date conditional payment summary form is unrelated to the pending
liability insurance (including self-insurance), no-fault insurance, or
workers' compensation settlement, judgment, award, or other payment.
(A) The dispute process is not an appeals process, nor does it
establish a right of appeal regarding that dispute. There will be no
administrative or judicial review related to this dispute process.
(B) The beneficiary, or his or her attorney or other representative
may be
[[Page 57806]]
required to submit supporting documentation in the form and manner
specified by the Secretary to support his or her dispute.
(v) Disputes submitted through the Web portal are resolved within
11 business days of receipt of the dispute and any required supporting
documentation.
(vi) When any disputes have been fully resolved and the
beneficiary, or his or her attorney, or other representative has
executed and obtained confirmation of the completion of a final claims
refresh, then:
(A) The beneficiary, or his or her attorney or other
representative, may download or otherwise request a time and date
stamped conditional payment summary form 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 form
will constitute Medicare's final conditional payment amount.
(B) If the beneficiary, or his or her attorney or other
representative, is within 3 days of the date of settlement, judgment,
award, or other payment and any claim disputes have not been fully
resolved, he or she may not download or otherwise request a final
conditional payment summary form.
(vii)(A) Within 30 days 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
specified by the Secretary, including, but not limited to the
following:
(1) The date of settlement, judgment, award, or other payment,
including the total settlement amount, the attorney fee amount or
percentage.
(2) Additional costs borne by the beneficiary to obtain his or her
settlement, judgment, award, or other payment.
(B) If settlement information is not provided within 90 days of
securing the settlement, the final conditional payment amount obtained
through the Web portal is void.
(viii) Once settlement, judgment, award, or other payment
information is received, CMS applies a pro rata reduction to the final
conditional payment amount in accordance with Sec. 411.37 and issues a
final MSP recovery demand letter.
(2) If the underlying liability insurance (including self-
insurance), no-fault insurance, or workers' compensation claim derives
from one of the following, the beneficiary, or his or her attorney or
other representative, must provide notice to CMS' contractor via the
Web portal in order to obtain a final conditional payment summary form
and amount through the Web portal:
(i) Alleged exposure to a toxic substance,
(ii) Environmental hazard,
(iii) Ingestion of pharmaceutical drug or other product or
substance,
(iv) Implantation of a medical device, joint replacement, or
something similar.
(3) An applicable plan may 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 in the form and manner described in
Sec. 411.38(b) if the applicable plan has properly registered to use
the Web portal and has obtained from the beneficiary, and submitted to
the appropriate CMS contractor, proper proof of representation. The
applicable plan may obtain read only access if the applicable plan
obtains proper consent to release from the beneficiary, and submits it
to the appropriate CMS contractor.
(4) On or after January 1, 2016, the MSP Web portal will include
functionality to provide final MSP conditional payment summary forms
and amounts.
(d) Obligations with respect to future medical items and services.
Final conditional payment amounts obtained via the Web portal represent
Medicare covered and otherwise reimbursable items and services that are
related to the beneficiary's settlement, judgment, award, or other
payment furnished before the time and date stamped on the final
conditional payment summary form.
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: July 18, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
Approved: September 11, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2013-22934 Filed 9-19-13; 8:45 am]
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