Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Proposed Rules 35917 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 29, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–14591 Filed 6–14–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0969; FRL–9686–8] 

Approval and Promulgation of 

Implementation Plans; Revisions to the 

Georgia State Implementation Plan 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a State Implementation Plan (SIP) 

revision submitted by the State of 

Georgia, through the Department of 

Natural Resources, Environmental 

Protection Division on November 16, 

2010. This revision consists of 

transportation conformity criteria and 

procedures related to interagency 

consultation and enforceability of 

certain transportation-related control 

measures and mitigation measures. The 

intended effect is to update the 

transportation conformity criteria and 

procedures in the Georgia SIP. This 

action is being taken pursuant to section 

110 of the Clean Air Act. 

In the Final Rules Section of this 

Federal Register, EPA is approving the 

State’s SIP revision as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this rule, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period 

on this document. Any parties 

interested in commenting on this 

document should do so at this time. 

DATES: Written comments must be 

received on or before July 16, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2010–0969, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: 

somerville.amanetta@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2010– 

0969,’’ Air Quality Modeling and 

Transportation Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Amanetta 

Somerville, Air Quality Modeling and 

Transportation Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Amanetta Somerville of the Air Quality 

Modeling and Transportation Section at 

the Air Planning Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Ms. 

Somerville’s telephone number is 404– 

562–9025. She can also be reached via 

electronic mail at 

somerville.amanetta@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

additional information see the direct 

final rule which is published in the 

Rules Section of this Federal Register. 

Dated: June 1, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–14594 Filed 6–14–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 405 and 411 

[CMS–6047–ANPRM] 

RIN 0938–AR43 

Medicare Program; Medicare 

Secondary Payer and ‘‘Future 

Medicals’’ 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
35918 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Proposed Rules 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: This advance notice of 

proposed rulemaking solicits comment 

on standardized options that we are 

considering making available to 

beneficiaries and their representatives to 

clarify how they can meet their 

obligations to protect Medicare’s 

interest with respect to Medicare 

Secondary Payer (MSP) claims 

involving automobile and liability 

insurance (including self-insurance), nofault insurance, and workers’ 

compensation when future medical care 

is claimed or the settlement, judgment, 

award, or other payment releases (or has 

the effect of releasing) claims for future 

medical care. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on August 14, 2012. 

ADDRESSES: In commenting, please refer 

to file code CMS–6047–ANPRM. 

Because of staff and resource 

limitations, we cannot accept comments 

by facsimile (FAX) transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed). 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions under the ‘‘More Search 

Options’’ tab. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–6047–ANPRM P.O. Box 8013, 

Baltimore, MD 21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address only: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–6047– 

ANPRM, Mail Stop C4–26–05, 7500 

Security Boulevard, Baltimore, MD 

21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: a. For delivery in 

Washington, DC—Centers for Medicare 

& Medicaid Services, Department of 

Health and Human Services, Room 445– 

G, Hubert H. Humphrey Building, 200 

Independence Avenue SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

1066 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

Submission of comments on 

paperwork requirements. You may 

submit comments on this document’s 

paperwork requirements by following 

the instructions at the end of the 

‘‘Collection of Information 

Requirements’’ section in this 

document. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Kalwa, (410) 786–2536. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http://regulations.gov. 

Follow the search instructions on that 

Web site to view public comments. 

Comments received timely will be 

also available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 

8:30 a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

please phone 1–800–743–3951. 

I. Overview and Background 

We are issuing this advance notice of 

proposed rulemaking (ANPRM) to 

solicit public comments on 

standardized options that beneficiaries 

and their attorneys or other 

representatives will be able to use to 

resolve MSP obligations related to 

settlements, judgments, awards, or other 

payments (hereinafter, for ease of 

reference in this document and unless 

otherwise indicated, ‘‘settlement(s)’’) 

involving future medical care while 

protecting Medicare’s interest. 

When the Medicare program was 

enacted in 1965, Medicare was the 

primary payer for all services, with the 

exception of those covered and payable 

by workers’ compensation. In 1980, the 

Congress enacted the first of a series of 

provisions that made Medicare the 

secondary payer to certain additional 

primary plans. These provisions are 

known as the Medicare Secondary Payer 

(MSP) provisions and are found in 

section 1862(b) of the Social Security 

Act (the Act). 

When specific conditions are met, 

these provisions in part prohibit 

Medicare from making payment if 

payment has been made or can 

reasonably be expected to be made by a 

workers’ compensation law or plan, 

automobile and liability insurance 

(including self-insurance), or no-fault 

insurance. If payment has not been 

made or cannot reasonably be expected 

to be made promptly, Medicare is 

permitted to make conditional payments 

(that is, Medicare pays for medical 

claims with the expectation that it will 

be repaid if the beneficiary obtains a 

‘‘settlement’’). This is because, if 

Medicare makes conditional payments, 

the MSP statute imposes an obligation 

on the Secretary to recover those 

conditional payments, once it is 

established that another individual or 

entity is responsible for primary 

payment. 

Primary payment responsibility on 

the part of workers’ compensation, 

liability insurance (including selfinsurance), and no-fault insurance is 

generally demonstrated by settlements, 

judgments, awards, or other payments. 

When a ‘‘settlement’’ occurs, the 

‘‘settlement’’ is subject to the MSP 

statute because a ‘‘payment has been 

made’’ with respect to medical care 

related to that ‘‘settlement.’’ By law, 

Medicare is subrogated to any right of 

an individual or any other entity to 

payment for items or services under a 

primary plan, to the extent of 

Medicare’s payments for such medical 

items and services. Moreover, section 

1862(b)(2)(B)(iii) of the Act provides a 

direct right of action to recover 

Medicare’s conditional payments. This 

direct right of action, which is separate 

and independent from Medicare’s 

statutory subrogation rights, may be 

brought to recover conditional payments 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Proposed Rules 35919 

against any or all entities that are or 

were responsible for making payment 

for the items and services under a 

primary plan. The government may also 

recover under the direct right of action 

from any entity that has received 

payment from a primary plan or the 

proceeds of a primary plan’s payment to 

any entity. 

Under its rights of subrogation and 

direct right of action, Medicare recovers 

for conditional payments related to the 

‘‘settlement,’’ regardless of when the 

items and services are provided. 

Further, Medicare is prohibited from 

making payment when payment has 

been made (that is, if the beneficiary 

obtains a ‘‘settlement’’). Medicare 

remains the secondary payer until the 

‘‘settlement’’ proceeds are appropriately 

exhausted. It is important to note that 

the designation future medical care 

(‘‘future medicals’’) is a term 

specifically used to reference medical 

items and services provided after the 

date of ‘‘settlement.’’ 

II. Provisions of the Advanced Notice of 

Proposed Rulemaking 

The primary purpose of this ANPRM 

is to respond to affected parties’ 

requests for guidance on ‘‘future 

medicals’’ MSP obligations, specifically, 

how individuals/beneficiaries can 

satisfy those obligations effectively and 

efficiently. Section 111 of the Medicare, 

Medicaid, and SCHIP Extension Act of 

2007 (MMSEA), established mandatory 

MSP reporting obligations. Liability 

insurance (including self-insurance), nofault insurance, and workers’ 

compensation laws or plans are required 

to submit information, as specified by 

the Secretary, to Medicare related to 

claims resolved through ‘‘settlements,’’ 

regardless of whether or not there is a 

determination or admission of liability 

(see 42 U.S.C. 1395y(b)(8)). While the 

topic of this ANPRM does not relate to 

the section 111 of the MMSEA reporting 

obligations directly, Medicare’s ongoing 

section 111 of the MMSEA 

implementation efforts, as well as 

industry efforts to ensure compliance 

with section 111 of the MMSEA, have 

sensitized affected parties to other MSP 

obligations, specifically reimbursement 

obligations that have been long ignored 

or overlooked. As a result, affected 

parties are requesting clarity regarding 

‘‘future medicals’’ MSP obligations and 

how to resolve them. 

Currently, individuals involved in 

certain workers’ compensation 

situations are able to use Medicare’s 

formal, yet voluntary, Medicare SetAside Arrangement (MSA) review 

process in order to determine if a 

proposed set-aside amount is sufficient 

to meet their MSP obligations related to 

‘‘future medicals.’’ To date, Medicare 

has not established a similar process for 

individuals/beneficiaries to use to meet 

their MSP obligations with respect to 

‘‘future medicals’’ in liability insurance 

(including self-insurance) situations. We 

are soliciting comment on whether and 

how Medicare should implement such a 

similar process in liability insurance 

situations, as well as comment on the 

proposed definitions and additional 

options outlined later in this section. 

We are further soliciting suggestions on 

options we have not included later in 

this section. We are most interested in 

the feasibility and usability of the 

outlined options and whether 

implementation of these options would 

provide affected parties with sufficient 

guidance. We want to ensure that the 

process related to ‘‘future medicals’’ is 

understandable, efficient, and reflects 

industry practice, while protecting 

beneficiaries and the Medicare Trust 

Funds. 

A. CMS Proposed General Rule 

If an individual or Medicare 

beneficiary obtains a ‘‘settlement’’ and 

has received, reasonably anticipates 

receiving, or should have reasonably 

anticipated receiving Medicare covered 

and otherwise reimbursable items and 

services after the date of ‘‘settlement,’’ 

he or she is required to satisfy 

Medicare’s interest with respect to 

‘‘future medicals’’ related to his or her 

‘‘settlement’’ using any one of the 

following options outlined later in this 

ANPRM. 

B. Proposed Definitions 

Several proposed definitions have 

been developed for use in conjunction 

with the options Medicare is 

considering. All definitions have been 

considered and/or developed for the 

purposes of this document. We request 

comment on the definitions of ‘‘chronic 

illness/condition,’’ ‘‘physical trauma,’’ 

and ‘‘major trauma,’’ specifically, 

whether they are accurate and usable in 

terms of the presumption that future 

medical care will be required. 

We also solicit specific comment on 

the utility of the definition of ‘‘major 

trauma.’’ The Injury Severity Score (ISS) 

is one of several methods used to 

measure the severity of injuries when 

individuals have sustained more than 

one traumatic injury. It is generally used 

in predictive modeling and risk 

assessments to predict and evaluate 

emergent care required by an injured 

individual. We are interested in whether 

this type of approach is useful in 

guiding a determination as to whether 

future medical care will be required and 

if other approaches are available. 

• Chronic Illness/Condition: means 

that the illness/condition persists over a 

long period of time. The term is 

generally applied when the course of a 

disease or condition lasts for more than 

3 months. If the individual/beneficiary 

alleges an injury that is a chronic 

illness/condition, it is presumed that 

future medical care will be required. 

Examples of chronic diseases include, 

but are not limited to: Chronic airflow 

limitation, including asthma and 

chronic bronchitis; cancer, diabetes; 

quadriplegia; and nephrogenic systemic 

fibrosis. 

• Date of Care Completion: means the 

date the individual/beneficiary 

completed treatment related to his or 

her ‘‘settlement.’’ The individual/ 

beneficiary’s treating physician must be 

able to attest that the individual/ 

beneficiary has completed treatment 

and that no further medical care related 

to the ‘‘settlement’’ will be required. 

• Future Medical Care (‘‘future 

medicals’’): means Medicare covered 

and otherwise reimbursable items and 

services that the individual/beneficiary 

received after the Date of ‘‘Settlement.’’ 

This definition specifically applies to 

items and services related to the 

individual/beneficiary’s settlement, 

judgment, award, or other payment. 

• Physical Trauma: refers to an injury 

(as a wound) to living tissue caused by 

an extrinsic agent. This also includes 

blunt trauma, which refers to injury 

caused by a blunt object or collision 

with a blunt surface (as in a vehicle 

accident or fall from a building) 

• Major Trauma: major trauma means 

serious injury to two or more Injury 

Severity Score (ISS) body regions or an 

ISS greater than 15. The ISS body 

regions include the following: 

• Head or neck. 

• Face. 

• Chest. 

• Abdomen. 

• Extremities. 

• External. 

C. Proposed Options 

Medicare is considering the options 

listed in this section of the document for 

developing efficient and effective means 

for addressing ‘‘future medicals.’’ 

Options 1 through 4 would be available 

to Medicare beneficiaries as well as to 

individuals who are not yet 

beneficiaries. Options 5 through 7 

would be available to beneficiaries only. 

We request comment on the feasibility 

and usability of all of the options. We 

also request proposals for additional 

options for consideration. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
35920 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Proposed Rules 

Option 1. The individual/beneficiary 

pays for all related future medical care 

until his/her settlement is exhausted 

and documents it accordingly. 

The beneficiary may choose to govern 

his/her use of his/her settlement 

proceeds himself/herself. Under this 

option, he/she would be required to pay 

for all related care out of his/her 

settlement proceeds, until those 

proceeds are appropriately exhausted. 

As a routine matter, Medicare would not 

review documentation in conjunction 

with this option, but may occasionally 

request documentation from 

beneficiaries selected at random as part 

of Medicare’s program integrity efforts. 

Option 2. Medicare would not pursue 

‘‘future medicals’’ if the individual/ 

beneficiary’s case fits all of the 

conditions under either of the following 

headings: 

a. The amount of liability insurance 

(including self-insurance) ‘‘settlement’’ 

is a defined amount or less and the 

following criteria are met: 

• The accident, incident, illness, or 

injury occurred one year or more before 

the date of ‘‘settlement;’’ 

• The underlying claim did not 

involve a chronic illness/condition or 

major trauma; 

• The beneficiary does not receive 

additional ‘‘settlements;’’ and 

• There is no corresponding workers’ 

compensation or no-fault insurance 

claim. 

b. The amount of liability insurance 

(including self-insurance) ‘‘settlement’’ 

is a defined amount or less and all of 

the following criteria are met: 

• The individual is not a beneficiary 

as of the date of ‘‘settlement;’’ 

• The individual does not expect to 

become a beneficiary within 30 months 

of the date of ‘‘settlement;’’ 

• The underlying claim did not 

involve a chronic illness/condition or 

major trauma; 

• The beneficiary does not receive 

additional ‘‘settlements;’’ and 

• There is no corresponding workers’ 

compensation or no-fault insurance 

claim. 

We request comment on the 

appropriate defined amounts to use in 

Options 2a and 2b, as well as comment 

on the efficacy of this approach. 

Option 3. The individual/beneficiary 

acquires/provides an attestation 

regarding the Date of Care Completion 

from his/her treating physician. 

a. Before Settlement—When the 

individual/beneficiary obtains a 

physician attestation regarding the Date 

of Care Completion from his or her 

treating physician, and the Date of Care 

Completion is before the ‘‘settlement,’’ 

Medicare’s recovery claim would be 

limited to conditional payments it made 

for Medicare covered and otherwise 

reimbursable items and services 

provided from the Date of Incident 

through and including the Date of Care 

Completion. As a result, Medicare’s 

interest with respect to ‘‘future 

medicals’’ would be satisfied. The 

physician must attest to the Date of Care 

Completion and attest that the 

individual/beneficiary would not 

require additional care related to his/her 

‘‘settlement.’’ 

b. After Settlement—When the 

individual/beneficiary obtains a 

physician attestation from his or her 

treating physician after settlement 

regarding the Date of Care Completion, 

Medicare would pursue recovery for 

related conditional payments it made 

from the date of incident through and 

including the date of ‘‘settlement.’’ 

Further, Medicare’s interest with respect 

to future medical care would be limited 

to Medicare covered and otherwise 

reimbursable items and/or services 

provided from the date of ‘‘settlement’’ 

through and including the Date of Care 

Completion. The physician must attest 

to the Date of Care Completion and 

attest that the individual/beneficiary 

would not require additional care 

related to his/her ‘‘settlement.’’ We 

request comment on the efficacy and 

feasibility of this option. 

Option 4. The Individual/Beneficiary 

Submits Proposed Medicare Set-Aside 

Arrangement (MSA) Amounts for CMS’ 

Review and Obtains Approval. 

Currently, we have a formal process to 

review proposed MSA amounts in 

certain workers’ compensation 

situations. Recently we have received a 

high volume of requests for official 

review of proposed liability insurance 

(including self-insurance) MSA 

amounts. This has prompted us to 

consider whether we should implement 

a formal review process for proposed 

liability insurance (including selfinsurance) MSA amounts. For more 

information related to workers’ 

compensation MSA process, please visit 

http://www.cms.hhs.gov/Medicare/ 

Coordination-of-Benefits/ 

WorkersCompAgencyServices/ 

wcsetaside.html. We specifically solicit 

comment on how a liability MSA 

amount review process could be 

structured, including whether it should 

be the same as or similar to the process 

used in the workers’ compensation 

arena, whether review thresholds 

should be imposed, etc. 

Option 5. The beneficiary participates 

in one of Medicare’s recovery options. 

Recently, we implemented three 

options with respect to resolving 

Medicare’s recovery claim in more 

streamlined and efficient manners. 

Before we issue a demand letter, the 

beneficiary or his/her representative 

may participate in one of three recovery 

options, which allows the beneficiary to 

obtain Medicare’s final conditional 

payment amount before settlement. The 

three recovery options are as follows: 

• $300 Threshold—If a beneficiary 

alleges a physical trauma-based injury, 

obtains a liability insurance (including 

self-insurance) ‘‘settlement’’ of $300 or 

less, and does not receive or expect to 

receive additional ‘‘settlements’’ related 

to the incident, Medicare will not 

pursue recovery against that particular 

‘‘settlement.’’ 

• Fixed Payment Option—When a 

beneficiary alleges a physical traumabased injury, obtains a liability 

insurance (including self-insurance) 

‘‘settlement’’ of $5,000 or less, and does 

not receive or expect to receive 

additional ‘‘settlements’’ related to the 

incident, the beneficiary may elect to 

resolve Medicare’s recovery claim by 

paying 25 percent of the gross 

‘‘settlement’’ amount. 

• Self-Calculated Conditional 

Payment Option—When a beneficiary 

alleges a physical trauma-based injury 

that occurred at least 6 months prior to 

electing the option, anticipates 

obtaining a liability insurance 

(including self-insurance) ‘‘settlement’’ 

of $25,000 or less, demonstrates that 

care has been completed, and has not 

received nor expects to receive 

additional ‘‘settlements’’ related to the 

incident, the beneficiary may selfcalculate Medicare’s recovery claim. 

Medicare would review the 

beneficiary’s self-calculated amount and 

provide confirmation of Medicare’s final 

conditional payment amount. 

Each of the options is employed in 

such a way that Medicare’s interest with 

respect to future medicals is, in effect, 

satisfied for the specified ‘‘settlement.’’ 

Therefore, when a beneficiary 

participates in any one of these recovery 

options, the beneficiary has also met 

his/her obligation with respect to future 

medicals. We solicit comment on 

proposed expansions of these options 

and the justification for that proposed 

expansion, as well as any suggestions 

about how to improve the three options 

we recently implemented. 

Option 6. The Beneficiary Makes an 

Upfront Payment. 

We are currently considering two 

variations of an ‘‘upfront payment 

option.’’ 

a. If Ongoing Responsibility For 

Medicals was imposed, demonstrated or 

accepted and medicals are calculated 

through the life of the beneficiary or the 

life of the injury. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Proposed Rules 35921 

If ongoing responsibility for medicals 

was imposed, demonstrated or accepted 

from the date of ‘‘settlement’’ through 

the life of the beneficiary or life of the 

injury, we may review and approve a 

proposed amount to be paid as an 

upfront lump sum payment for the full 

amount of the calculated cost for all 

related future medical care. This option 

would generally apply in workers’ 

compensation, no-fault insurance 

situations or when life-time medicals 

are imposed by law. In effect, this 

option may be used in place of 

administering a MSA if we have 

reviewed and approved a proposed 

MSA amount. We solicit comment on 

how to develop this process, the efficacy 

of it, and whether it would be utilized. 

b. If Ongoing Responsibility for 

Medicals was Not Imposed, 

Demonstrated or Accepted. 

If a beneficiary obtains a ‘‘settlement,’’ 

our general rule stated previously 

applies to the ‘‘settlement,’’ and ongoing 

responsibility for medicals has not been 

imposed on, demonstrated by or 

accepted by the defendant, the 

beneficiary may elect to make an 

upfront payment to Medicare in the 

amount of a specified percentage of 

‘‘beneficiary proceeds.’’ This option 

would most often apply in liability 

insurance (including self-insurance 

situations, primarily due to policy caps. 

For the purposes of this option, the term 

‘‘beneficiary proceeds’’ would be 

calculated by subtracting from the total 

‘‘settlement’’ amount attorney fees and 

procurement costs borne by the 

beneficiary, Medicare’s demand amount 

(for conditional payments made by 

Medicare), and certain additional 

medical expenses the beneficiary paid 

out of pocket. Such additional medical 

expenses are specifically limited to 

items and services listed in 26 U.S.C. 

213(d)(1)(A) through (C) and 26 U.S.C. 

213(d)(2). The calculation of beneficiary 

proceeds does not include medical 

expenses paid by, or that are the 

responsibility of, a source other than the 

beneficiary. We specifically solicit 

comment on how to develop this 

process, its efficacy, and whether it 

would be utilized. We further request 

comment on the calculation of 

beneficiary proceeds, the appropriate 

percentage(s) to be used, and how the 

percentage(s) is/are justified. 

Option 7. The Beneficiary Obtains a 

Compromise or Waiver of Recovery. 

If the beneficiary obtains either a 

compromise or a waiver of recovery, 

Medicare would have the discretion to 

not pursue future medicals related to 

the specific ‘‘settlement’’ where the 

compromise or waiver of recovery was 

granted. If the beneficiary obtains 

additional ‘‘settlements,’’ Medicare 

would review the conditional payments 

it made and adjust its claim for past and 

future medicals accordingly. We 

specifically solicit comment on whether 

this approach is practical and usable, as 

it relates to ‘‘future medicals.’’ 

Again, we also solicit comment on 

additional options we may consider in 

order to provide workable solutions for 

beneficiaries with respect to resolving 

‘‘future medicals’’ obligations. 

IV. Collection of Information 

Requirements 

This document does not impose 

information collection and 

recordkeeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995. 

V. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: April 24, 2012. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: May 8, 2012. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2012–14678 Filed 6–14–12; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211, 212, 218, 246, 252 

and Appendix F to Chapter 2 

RIN 0750–AH64 

Defense Federal Acquisition 

Regulation Supplement: Item Unique 

Identifier Update (DFARS Case 2011– 

D055) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

update and clarify requirements for 

unique identification and valuation of 

items delivered under DoD contracts. 

The proposed rule revises the applicable 

prescription and contract clause to 

reflect the current requirements. 

DATES: Comment Date: Comments on 

the proposed rule should be submitted 

in writing to the address shown below 

on or before August 14, 2012, to be 

considered in the formation of a final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2011–D055, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2011–D055’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2011– 

D055.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2011– 

D055’’ on your attached document. 

Æ Email: dfars@osd.mil. Include 

DFARS Case 2011–D055 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mr. Dustin 

Pitsch, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 571–372–6090. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The contract clause at DFARS 

252.211–7003, Item Identification and 

Valuation, requires unique 

identification for all delivered items for 

which the Government’s unit 

acquisition cost is $5,000 or more and 

for other items designated by the 

Government. In addition, the clause 

requires identification of the 

Government’s unit acquisition cost for 

all delivered items, and provides 


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