This is only one small step toward making the Portal a fully useful resource for participants in litigated cases. It represents, in our estimation, no more than partial compliance with the requirements imposed by Congress in its January 2013 SMART Act.
The provisions, in a nutshell, are:
- CMS will continue to provide information on payments made by Medicare to beneficiaries using the portal
- The beneficiary will be able to dispute particular items based on "relatedness" (whether a medical service was related to the injury for which compensation is sought or paid)
- CMS will add a function to permit downloading of a date and time-stamped summary of the payment summary forms by the beneficiary (and not by any other user)
- Others, such as the beneficary's attorney and the "applicable plan" (the primary payer) will continue to be able to register and obtain some information
- Their access [and the information provided] will be limited until CMS develops and implements a security procedure (a multifactor authentication procedure)
- CMS will develop this procedure within 90 days
- CMS will implement it by January 1, 2016
Note that, as we predicted, the Portal's challenge procedures will address only the question of whether a particular medical service is related to the subject injury. For now, and for at least the next 27 months, even that challenge can only be made by the beneficiary. This falls short of the requirement imposed under the SMART Act. That Act required that CMS, within nine months of its effective date, develop regulations for the filing of such disputes by primary payers as well. It appears that compliance with this requirement is not expected for a long time.
Although this is a Final Rule, CMS will receive comments for a period of 60 days, in light of the fact that it skipped the issuance of a Proposed Rule. This suggests that CMS is finding it difficult to accomplish even this partially compliant functionality.
Paragraph (d) of the new rule states:
(d) Obligations with respect to future medical items and services.Since we are expecting a proposed rule on future medical expenses in short order, the absence of any specific directive here is unsurprising.
Final conditional payment amounts obtained via the Web portal represent Medicare covered and otherwise reimbursable items and services that are related to the beneficiary's settlement, judgment, award, or other payment furnished before the time and date stamped on the final conditional payment summary form.
Obtaining final reimbursement information
The steps that are specified in the new rule are
- Any party may notify the MSPRC of a planned settlement at least 185 days in advance.
- The MSPRC will compile and post on the portal the reimbursement figure and the listing of related payments (the "payment summary") within 65 days.
- After it does so, any party may notify the MSPRC that a settlement is expected within 120 days.
- The beneficiary or his attorney may challenge one or more items on the listing as unrelated to the subject accident. This may be done "once and only once," at least 120 days before the date of settlement. (Note that, reading the rule strictly, the time frames are mutually contradictory.)
- The regulation says, "The dispute process is not an appeals process, nor does it establish a right of appeal regarding that dispute. There will be no administrative or judicial review related to this dispute process."
- The MSPRC may ask for documentation, in a manner yet to be determined.
- The MSPRC will resolve the challenge within eleven days.
- The beneficiary or his attorney must ask that the reimbursement amount be updated. This may be done "once and only once," and it should be done only after the payment summary has been reviewed to ensure that it does not include any unrelated items.
- CMS will do the update within five days.
In some cases, though not in all, the plaintiff and his attorney can be expected to cooperate with these efforts, since it is also in their interest to make sure that the settlement funds are not used to reimburse unrelated items.