In compliance with the deadlines of the SMART Act , the Centers for Medicare and Medicaid Services (CMS) released its interim final rule outlining the process for expanding Medicare’s Secondary Payer (MSP) Web portal. The interim final rule includes a timeline for developing a multifactor authentication solution to securely permit authorized users to access CMS’s MSP conditional payment amounts and claims information via the MSP Web portal. Authorized family members and representatives, as well as applicable plans, will now be granted access to the beneficiary’s Medicare Secondary Payer information, which will expedite the settlement process. The Act also requires CMS to update the portal to allow users to notify CMS that a case is nearing settlement, obtain time and date stamped final conditional payment summary forms and amounts prior to settlement, and ensure that disputes regarding claims included in the final conditional payment amount are resolved within 11 days of CMS’s receipt of the dispute through the portal.
A 60-day comment period is currently in effect, which will last until 5:00 p.m. on November 19, 2013. Comments can be made online at http://www.regulations.gov. Following the comment period, the regulations will become “effective” on November 19, 2013. However, CMS has indicated it will implement all systems and process changes no later than January 1, 2016. The delay in implementation has received criticism from insurers and other payers who believe that two years is too long to wait for the benefits of the Act to take effect.
Security Features and Timeline
CMS intends to implement a multifactor authentication no later than January 1, 2016, to provide increased security to the Web portal. After the authentication is implemented, claim-specific information such as diagnosis codes, provider names, and dates of service will be available to all authorized users via the Web portal. However, until the authentication is developed and incorporated, the beneficiary will remain the only entity with access to all the claims information while all other authorized users will only have access to the total conditional payment amount. Thus, attorneys or plans that intend to dispute claims included in the conditional payment amount will need to continue addressing those disputes in the same manner used now.
Obtaining a Final Conditional Payment Amount through the Web Portal
The first step in obtaining a final conditional payment amount is for the beneficiary or the beneficiary’s attorney to notify the appropriate Medicare contractor that a liability insurance, no-fault insurance, or workers’ compensation claim has been filed. This initial notification will still need to be provided outside of the Web portal to the appropriate Medicare contractor. After receiving such notification, Medicare will have 65 days to post its initial claims compilation on the Web portal. The SMART Act allows CMS to extend its response time by 30 days if it determines additional time is needed. The rule indicates such an extension might be necessary where a CMS contractor is required to review the systematic filtering of claims for a case and adjust those filters manually to ensure the proper claims are included. The Act also allows CMS to further extend the time period in exceptional circumstances; however, CMS is restricted to classifying no more than 1 percent of claims as exhibiting exceptional circumstances. The rule defines exceptional circumstances as events such as system failures due to extreme adverse weather, a security breach of the network, terror threats, strikes and similar labor actions, or other unlikely events.
At any time after Medicare posts its initial claims compilation, the beneficiary may notify CMS once, and only once, through the Web portal that he or she is within 120 days of settlement of the claim. Thus, based on the timelines, notification must be provided at least 185 days prior to an expected settlement.
The beneficiary may refresh the claims as often as he or she prefers after the initial 120-day settlement notification has been provided. If the beneficiary believes improper claims have been included in the claims compilation, a claim may be disputed once, and only once, and additional support of the dispute may be required. Disputes submitted through the Web portal shall be resolved within 11 days of receipt of the dispute. While only one appeal is offered through this process, the traditional appeals process for disputing claims included in the final demand letter will remain intact. However, requiring parties to move forward with settlement despite unresolved claim disputes will undoubtedly leave some ambiguity in the settlement process. After all disputes are addressed, the beneficiary 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. The rule provides that CMS will provide confirmation of the completion through the Web portal no later than 5 business days after the request is initiated. Note that this requires an additional action by an authorized user, and also adds at least an additional 5 days to the settlement timeline.
After receiving the confirmation that the claims refresh has been performed, the beneficiary may download a time and date stamped final conditional payment amount. For the final conditional payment amount to be valid, settlement must be reached within 3 days of the time and date stamp. The rule is silent as to whether parties will be able to re-download a final conditional payment amount with an updated time and date stamp should settlement not be reached within the three day time frame. If additional final conditional payment amounts are not available, parties may be forced to undergo the traditional MSP recovery process.
Following the settlement, the beneficiary will have 30 days to provide settlement information, such as the date and total amount of the settlement, as well as attorney fees and additional costs incurred by the beneficiary in obtaining the settlement, or else the final conditional payment amount will expire. While the rule acknowledges that providing this information within 30 days may at times prove challenging, it does not provide an alternative solution. Once the settlement information is received, a pro rata reduction will be applied to the final conditional payment amount and a final MSP recovery demand letter will be issued. CMS hopes to implement a method for submitting settlement information via the Web portal.
Ideally, the MSP web portal will serve as a useful tool for parties to use to assist in a settlement with a Medicare beneficiary. If the proposed CMS process works as expected, the parties will know Medicare’s final conditional payment amount before any settlement proceeds are paid. This will provide defendants and insurers with the opportunity to pay Medicare directly and avoid a potential future Medicare recovery action.
Click here for more information about the SMART Act Interim Final Rule.