June 20, 2018

Rafael Gonzalez: What the New Appeals Process for Medicare Conditional Payments Means for Payers

By Rafael Gonzalez, Esq., vice president of strategic solutions, Settlement Solutions, Helios

Rafael GonzalezThe Medicare Secondary Payer (MSP) Act has always provided the Medicare beneficiary with the right to seek an appeal if he or she disagreed with the amount of the reimbursement sought by Medicare. However, despite considering workers’ compensation plans, liability and no-fault insurers, and self-insurers as primary payers, the MSP Act did not include an appeals process for these non-group health plans (NGHPs). If a payer disagreed with Medicare’s assessment of a conditional payment owed, there was no formal process for an appeal. In 2013, the Strengthening Medicare and Reimbursing Tax Payers (SMART) Act proposed an amendment to the MSP, which would give NGHPs the right to appeal and a formal appeals process when Medicare pursued a recovery directly from them.

After more than a year of collecting and considering public comment, the Centers for Medicare and Medicaid Services (CMS) published the final rule, which becomes effective April 28, 2015. Finally, employers, carriers, and administrators in the workers’ compensation system will have a process to voice their disagreement or concerns with the items and amount of Medicare reimbursement.

To some extent, the final rule is not what the industry had hoped for. Many were hoping that CMS would develop a special administrative process that would take into consideration the uniqueness and nuances of the workers’ compensation and liability systems. However, we can be pleased with the result because the final rule is on par with other such administrative processes. Very similar to the Fee for Service appeals process and procedures, following receipt of an initial claim determination, NGHPs may now also seek redetermination, reconsideration, a hearing, and Appeals Council review before seeking judicial review before the federal courts. There are several levels to the new process, and in each, there are particular steps. The following is adapted from the CMS website.

First Level of Appeal: Redetermination by a Fiscal Intermediary (FI)
A redetermination is an examination of a claim by the FI, carrier, or Medicare Administrative Contractor (MAC) personnel who are different from the personnel who made the initial claim determination. The NGHP (appellant) has 120 days from the date of receipt of the initial claim determination to file an appeal. A minimum monetary threshold is not required to request a redetermination.

The appellant should attach any supporting documentation to their redetermination request. The MAC will generally issue the decision, Medicare Redetermination Notice (MRN), within 60 days of receipt of the redetermination request. The redetermination request should be sent to the contractor that issued the initial determination.

Second Level of Appeal: Reconsideration by a Qualified Independent Contractor
The NGHP may request a reconsideration if dissatisfied with the redetermination. A Qualified Independent Contractor (QIC) will conduct the reconsideration. The QIC reconsideration process allows for an independent review of medical issues by a panel of physicians or other health care professionals. A minimum monetary threshold is not required to request reconsideration.

A written reconsideration request must be filed within 180 days of receipt of the redetermination. To request a reconsideration, the NGHP must follow the instructions on the MRN.

The request should clearly explain why the NGHP disagrees with the redetermination. A copy of the MRN, and any other useful documentation, should be sent with the reconsideration request to the QIC identified in the MRN. Documentation that is submitted after the reconsideration request has been filed may result in an extension of the decision timeframe. Further, any evidence noted in the redetermination as missing and any other evidence relevant to the appeal must be submitted prior to the issuance of the reconsideration decision. Evidence not submitted at the reconsideration level may be excluded from consideration at subsequent levels of appeal unless good cause is shown for submitting the evidence late.

Reconsiderations are conducted on-the-record and, in most cases, the QIC will send its decision to all parties within 60 days of receipt of the request for reconsideration. The decision will contain detailed information on further appeals rights if the decision is not fully favorable. If the QIC cannot complete its decision in the applicable timeframe, it will inform the appellant of their right to escalate the case to an Administrative Law Judge (ALJ).

Third Level of Appeal: Administrative Law Judge (ALJ) Hearing
If the appellant disagrees with the QIC decision, they may request an ALJ hearing within 60 days of receipt of the reconsideration. The reconsideration decision letter should be reviewed for details regarding the procedures for requesting an ALJ hearing. Appellants must also send notice of the ALJ hearing request to all parties to the QIC reconsideration and verify this on the hearing request form or in the written request.

ALJ hearings are generally held by video-teleconference (VTC) or by telephone. If the appellant does not want a VTC or telephone hearing, an in-person hearing can be requested, but must demonstrate good cause for requesting such. The ALJ will determine whether an in-person hearing is warranted on a case-by-case basis. Appellants may also ask the ALJ to make an on-the-record decision without a hearing. Hearing preparation procedures are set by the ALJ. CMS or its contractors may become a party to, or participate in, an ALJ hearing after providing notice to the ALJ and all parties to the hearing.

The ALJ will generally issue a decision within 90 days of receipt of the hearing request. This timeframe may be extended for a variety of reasons, including, but not limited to: the case being escalated from the reconsideration level, the submission of additional evidence not included with the hearing request, the request for an in-person hearing, the appellant’s failure to send notice of the hearing request to other parties, and the initiation of discovery if CMS is a party. If the ALJ does not issue a decision within the applicable timeframe, the appellant may ask the ALJ to escalate the case to the Appeals Council level.

Fourth Level of Appeal: Medicare Appeals Council Review
If the appellant is dissatisfied with the ALJ’s decision, they may request a review by the Appeals Council. There are no requirements regarding the amount of money in controversy. The request for Appeals Council review must be submitted in writing within 60 days of receipt of the ALJ’s decision, and must specify the issues and findings that are being contested. The ALJ decision should be reviewed for details regarding the procedures to follow when filing a request for Appeals Council review.

In general, the Appeals Council will issue a decision within 90 days of receipt of a request for review. That timeframe may be extended for various reasons, including but not limited to, the case being escalated from an ALJ hearing. If the Appeals Council does not issue a decision within the applicable time frame, the appellant may ask the Appeals Council to escalate the case to the Judicial Review level.

Fifth Level of Appeal: Judicial Review in U.S. District Court (USDC)
In order for a party to the decision to be able to request judicial review before a U.S. District Court judge following the Appeals Council’s decision, there must be a certain or specific threshold sum in controversy. The appellant must file the request for review within 60 days of receipt of the Appeals Council’s decision. The Appeals Council’s decision will contain information about the procedures for requesting judicial review.

Looking Ahead
As the process begins to be utilized, we will see how it is executed in practice. Many have suggested that the process could take years, but at this point, no one knows. If an NGHP chooses not to pay Medicare the amount in question but rather files an appeal, if the process takes years, interest on that amount could accumulate. It may be best to pay the amount due to Medicare and then file an appeal. Additionally, without knowing how long the process will take, one cannot estimate the cost to appeal the conditional payment amount. For example, if it does indeed take two or three years, the legal fees could be more costly than the amount in question. Time will tell.

For the most part, the new ruling is a success for payers. The opportunity to open dialogue with CMS only offers the opportunity to improve their understanding of workers’ compensation and liability systems. Additionally, sharing experience and insight may even lead the way to the extension of similar appeals rights and processes for Medicare Set-Asides. We look forward to April 28, 2015, and the better outcomes that might now be possible.

About Rafael Gonzalez
As Vice President of Strategic Solutions, Rafael Gonzalez serves as a thought leader on all aspects of Medicare and Medicaid compliance issues, including Mandatory Insurer Reporting, Conditional Payment Resolution, Medicare Set-Aside Allocations, CMS approval, and professional administration. Over the last 25 years, Rafael has published numerous articles and books, provided education, and spoke on workers’ compensation, social security, and Medicare/Medicaid legislative process at both the state and federal levels. He is considered one of the country’s preeminent experts in the areas of Mandatory Insurer Reporting, Conditional Payments Resolution, Medicare Set Asides, and Special Needs Trusts Administration.

About Helios
HeliosHelios brings the focus of workers’ compensation and auto no-fault Pharmacy Benefit Management, Ancillary, and Settlement Solutions back to where it belongs – the injured person. This comes with a passion and intensity on delivering value beyond just the transactional savings for which we excel. To learn how our creative and innovative tools, expertise, and industry leadership can help your business shine, visit www.HeliosComp.com.

Helios is a WorkCompWire Ad Partner.
This is not a paid placement.

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