CMS Issues Final Rule Implementing Appeal Provisions of the SMART Act

March 1, 2015

On Friday, February 27, the Centers for Medicare and Medicaid Services published its final rule implementing provisions of the Strengthening Medicare and Repaying Taxpayers (SMART) Act of 2012 regarding the appeals process for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans when Medicare pursues a Medicare Secondary Payer (MSP) recovery claim directly from those entities (here).

The rule, which becomes effective April 28, 2015, provides the following:

  • The structure for appeals of recovery actions against applicable plans will be the same as is currently available to beneficiaries;
  • Initial determinations as to who to pursue for recovery (applicable plan or beneficiary) is not appealable nor is the CMS decision to pursue one or all of multiple applicable plans;
  • No provision will be included as to the rights of an applicable plan as against a beneficiary; • Appeal rights are reserved only to the entity that is named in the initial determination and no participation in an appeal by the other party is allowed;
  • Representatives may be appointed for applicable plans. Health Insurance Claim Numbers are only required if a beneficiary is appealing;
  • Beneficiaries cannot assign their appeal rights to applicable plans;
  • Notices of initial determinations to applicable plans will be provided to the beneficiary as well as notice of appeal at the redetermination level only;
  • The “mailbox rule” will not be utilized to determine timeliness of appeals;
  • Medicare Parts C and D are not included in the process which applies to Medicare Parts A and B only;
  • Recovery actions will not be limited to amounts reportable pursuant to the SMART Act;
  • Appeals of Workers’ Compensation Medicare Set-Aside Arrangements are not included in the final rule;

This is a significant step by CMS in implementing the provisions of the SMART Act and ECS will monitor CMS practices under this rule to ensure applicable plans receive their proper rights of appeal.

Further commentary on the final rule can be found here.

ExamWorks Compliance Solutions will continue to keep you apprised of updates to the Final Rule implementation process as well as all relevant Medicare Secondary Payer compliance developments.