The Centers for Medicare and Medicaid Services (CMS) on December 27, 2013 published proposed rules with respect to the Right of Appeal for Medicare Secondary Payer Determination Relating to Liability Insurance (including Self-Insurance), No Fault Insurance, and Workers’ Compensation Laws and Plans. The proposed rules may be found at http://www.gpo.gov/fdsys/pkg/FR-2013-12-27/pdf/2013-30661.pdf#! and provide for comments to be submitted by February 25, 2014.
On February 21st, UWC filed comments in response to the proposed rules. The comments included:
- The proposed rules are contrary to the letter of the statute and congressional intent that clearly established a right of appeal that is not limited as proposed by CMS.Contrary to the intent and letter of the statute, the proposed rules would exclude determinations by CMS to seek recovery from a WC plan from the determinations that may be appealed. This is flatly contrary to statutory language which specifically provides for appeal of determinations under Section 1862(b). The proposed rule would result in an entity being permitted to appeal the amounts for items and services for which conditional payment recovery is being sought, but not the determination as to whether the entity was subject to demand for recovery in the first place. The very caption of the appeals section indicates a “right of appeal for secondary payer determinations”.The proposed rule would limit the right of appeal to those instances in which Medicare is “pursuing recovery directly from an applicable plan”. There is no such limitation provided by statute. The right to appeal is provided whether recovery is sought directly or indirectly. The right of appeal should not be limited so as to deny the right of an entity to pursue appeal when there are multiple parties that may be liable for some or all of the reimbursement being sought or when the liability for recovery from the workers’ compensation plan may be primary in relation to Medicare, but secondary to other parties. The intent of the statute and plain language of the statute indicate that the right of appeal is not limited based on the method by which the Secretary chooses to pursue recovery.
- The proposed rules should more clearly specify that appeals are subject to judicial review
Section 405.904 and Section 405.906 address the general process of determinations and appeals. There should be a clear statement of a right to judicial review for applicable plans included in Section 405.904.
- The Notice of Initial Determination sent to an applicable plan must include specific statutory authority for determinations and notification of appeal rightsFinally, the proposed rule provides a catch all authority for “any other requirements specified by CMS”. Such broad authority is not appropriate. It could be read so broadly as to be inconsistent with the statute upon which the authority is provided. This broad authority should be deleted. If there is a need for subsequent items to be included in the notice such items should be the subject of subsequent rulemaking procedures.
The CMS proposed rules with respect to “establishing a right of appeal and appeals process” should clearly provide for appeal of determinations of whether an entity is subject to MSP conditional payment recovery in the first place. Appeals should not be limited based on the method of CMS recovery, or limited as other appeals of “non-beneficiaries” under existing statutory and regulatory authority.
Administrative appeal procedures and judicial appeal rights should be clearly specified and the Notice of Determination should provide a finding of fact and the legal basis upon which the determination is rendered so that an entity may understand the reasons for the determination and the legal basis for it. The notice should enable affected entities to effectively preserve further appeal.