CMS Implements Right of Appeal

Implementation of the SMART Act’s Section 201 right of appeal
By Rasa Fumagalli J.D., MSCC

The Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act) was signed into law in January of 2013. The implementation of key provisions of the Act has unfortunately been slow. Over two years later, we are still awaiting CMS’ development of a solution to allow a Medicare beneficiary, his attorney or representative web portal access to detailed conditional payment information. Although CMS has proposed a deadline of January 1, 2016, an extension of the deadline would surprise no one.

CMS did however issue a final rule on February 27, 2015 that establishes a right of appeal and formal Medicare Secondary Payer (MSP) appeals process for applicable plans pursuant to Section 201 of the SMART Act. Prior to the passage of the SMART Act, only a beneficiary was provided with a formal administrative appeal right in a conditional payment dispute.

CMS’ final rule provides applicable plans with the same multilevel appeal process afforded a beneficiary where recovery is pursued directly from the plan. Applicable plans include liability insurance (including self‐insurance), no–fault insurance, and workers’ compensation laws or plans. The appeal process will allow plans to request a redetermination by the contractor issuing the recovery demand followed by a reconsideration request by a Qualified Independent Contractor. Once these requests are exhausted, an appeal may be made to an administrative law judge followed by a review request to the Departmental Appeals Board’s Medicare Appeals Council with an eventual judicial review. The beneficiary will not be a party to the applicable plan’s appeals although notice of the appeal will be given.

CMS’ establishment of a formal conditional payment appeal process for applicable plans has been long overdue. Although this appeal process does not address review of CMS’ WCMSA determinations, the MSP compliance industry remains cautiously optimistic that a similar appeal process will be provided in the future. We will continue to keep you advised of further developments as they arise.

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