On May 17, 2016, the Centers for Medicare and Medicaid Services (CMS) published a final rule entitled “Medicare Program: Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal”. While the rule will be effective June 16, the process defined by the rule was initiated by CMS in December 2015. See prior ECS article “CMS Initiates Process Allowing for Obtaining Final Conditional Payment Amount Pre-Settlement”. The final rule provides the official guidance on the how and when this Pre-Settlement Final Conditional Payment process may be utilized by the settling parties.
It is important to keep in mind that the Pre-Settlement Final Conditional Payment Process is only available when the Medicare beneficiary is the identified debtor, which would occur when there is a pending liability or workers’ compensation settlement. The identified debtor may choose either the pre-settlement option or use the traditional process of requesting a final conditional payment amount post-settlement.
A summary and explanation of the rule and its implications follows.
The final rule achieves the following:
o Notify CMS that a specified case is nearing settlement;
o Obtain time and date stamped final conditional payment summary statements and amounts before reaching settlement; and
o Ensure that relatedness disputes and any other discrepancies are addressed by CMS within 11 business days of its receipt of the dispute documentation.
A copy of the complete text of the CMS rule may be found here including a diagram of the new process on page 13.
CMS added functionality to allow beneficiaries to download or otherwise electronically obtain time and date stamped payment summary statements, and exchange other information securely via the Web portal.
While a beneficiary’s attorney or other representative and the applicable plan will continue to be able to register to use the Web portal and to access conditional payment amounts, to access more detailed information related to the pending settlement, users must register using a multifactor authentication process.
Once a user has registered using the multifactor authentication tool, he or she will have access to the following information:
If a user chooses not to use the multifactor authentication tool, he or she will still have access to conditional payment amounts and will continue to be able to perform certain functions, but detailed information will not be visible to that user.
Beneficiaries are not required to set up separate accounts; beneficiaries who access the existing Web portal should login through their MyMedicare.gov accounts for continued access. Authorized users will be able to view information on the Web portal regardless of whether the beneficiary has accessed the portal or logged in through MyMedicare.gov.
Obtaining a Final Conditional Payment Amount Pre-Settlement
Providing notice to CMS
Once a beneficiary, his or her attorney, or other representative, or an applicable plan provides notice through the appropriate contractor to CMS of a pending judgment, award, or other payment, CMS will compile and post related conditional payment information. Once a recovery case is established and posted on the Web portal, the authenticated users may access it. An authorized user may notify CMS “once – and only once –” that a settlement is expected to occur in 120 days or less.
CMS knows that it can often be difficult to project exactly when a settlement will occur. However, the SMART Act imposed workload timeframes on CMS related to the processing of cases that expect to settle within 120 days. Where CMS fails to comply with such timeframes, the SMART Act requires it to relinquish certain rights related to recovery. As a result, CMS developed the “once – and only once –” requirement to encourage conscious decision-making by identified debtors and to promote CMS’ ability to provide timely and responsive service.
CMS response timeframe to initial notice of claim
Upon receipt of notice of the pending settlement, CMS will post conditional payment information to the Web portal within 65 days or less. CMS may extend this timeframe by an additional 30 days under certain circumstances.
Disputing unrelated conditional payment claims and requesting final conditional payment amount
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 statement are unrelated to the pending settlement with an applicable plan, then he or she may address the discrepancies through the dispute process available through the Web portal. He or she may dispute the relatedness of an individual conditional payment once and may be required to submit additional supporting documentation to support the assertion that the disputed conditional payment is unrelated to the settlement. CMS recognizes that and individual or entity may submit disputes more than once, but they must not do so for the same conditional payment or line item. If CMS rejects the dispute for a particular conditional payment, that conditional payment will remain part of the total conditional payment amount and may not be disputed again through this process.
This dispute process via the Web portal is NOT an appeals process, nor does it establish a right of appeal regarding a dispute, and there is no administrative or judicial review related to this dispute process. However, the beneficiary maintains his or her appeal rights regarding the recovery decision once CMS issues its final demand.
Disputes submitted through the Web portal will be resolved within 11 business days of receipt of the dispute (including any required supporting documentation), once CMS has been notified that a pending settlement will occur within 120 days or less. Once all disputes are fully resolved, the beneficiary, or his or her authorized attorney or other representative,may download or otherwise request a time and date stamped final conditional payment summary statement from the Web portal. That statement will constitute the final conditional payment amount if settlement is reached within three (3) days of the date on the conditional payment summary statement. If the disputes have not been fully resolved, the beneficiary, or his or her authorized attorney or other representative, MAY NOT download or otherwise request a final conditional payment summary statement until the dispute has been resolved.
Obtaining the recovery demand letter
The beneficiary or his or her attorney or other representative may obtain the recovery demand letter by submitting the settlement information through the Web portal within 30 days following the settlement. This settlement information includes 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.
If the settlement information is not provided within that 30 day timeframe, then the final conditional payment amount obtained through the Web portal will expire and any additional conditional payments with dates of service through and including the date of settlement will be included in the recovery demand letter.
Once settlement information is received by CMS, it will apply a pro rata reduction to the final conditional payment amount pursuant to 42 CFR 411.37 and issue a MSP recovery demand letter. CMS plans to have functionality to allow settlement information to be entered directly or uploaded directly through the Web portal.
Applicable Plan Access
An applicable plan may only obtain a final conditional payment amount related to a pending settlement in the form and manner described in 42 CFR 411.39(c), if the plan has properly registered to use the Web portal, and has obtained the proper Proof of Representation form from the beneficiary and submitted it to the appropriate Medicare contractor. If the plan merely obtains an executed consent to release form from the beneficiary and submits it to the appropriate Medicare contractor, then it may obtain “read only” access to the Web portal.
If you are interested in using the Pre-Settlement Final Conditional Payment Process or have questions stemming from this article, please contact Examworks Compliance Solutions.