Form over Substance: CMS issues Final Rule for Conditional Payment Appeals by Plans

Posted by Dean Blackaby | Mar 03, 2015 | 0 Comments


Starting April 28, 2015, parties can finally avail themselves of one of the provisions of the SMART Act. The rule outlines the conditional payment appeals process for “applicable plans” seeking to challenge conditional payments. It represents a minor step forward granting standing to plans who, to date, enjoyed no such opportunity.

The appeals process will mirror the current four-level administrative process available to Medicare beneficiaries: (1) reconsideration of a claim by the CMS contractor; (2) evaluation of the claim by a Qualified Independent Contractor (QIC); (3) adjudication of the dispute by an Administrative Law Judge (ALJ); (4) and a review of the ALJ decision by the Medicare Appeals Council.

If it looks like it will take a long time – it will. CMS stopped short of creating an expedited process opting for the multi-year odyssey that will be sure to frustrate parties trying to resolve claims. CMS also maintained a narrow subject-matter approach limiting the process to the conditional payment amount as opposed to including disputes as to who or which entity CMS would pursue for overpayments. Also, the appeals process is available for those cases where a Final Demand letter has been issued – a factor adding more delay.

Falling short in another area, CMS has limited the rule and the SMART Act provision for conditional payments made by Medicare Part A and Part B. What does that mean? Presumably, it means the Medicare Advantage plans can continue acting like vikings in pursuit of settlement dollars. 

As expected, there was no mention of an appeal process to the review of future medicals in WCMSAs. CMS opined that such a review was outside the scope of the provisions.

Ultimately, the rulemaking process resulted in another wasted opportunity for efficiency. CMS simply took the same grindingly slow appeals process to which beneficiaries have been subjected and given it to (inflicted it upon?) applicable plans.  Helpful in form, but not in substance.

Read the rule HERE.

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.


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