57800 Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 411 

[CMS–6054–IFC] 

RIN 0938–AR90 

Medicare Program; Obtaining Final 

Medicare Secondary Payer Conditional 

Payment Amounts via Web Portal 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Interim final rule with comment 

period. 

SUMMARY: This interim final rule with 

comment period specifies the process 

and timeline for expanding CMS’ 

existing Medicare Secondary Payer 

(MSP) Web portal to conform to section 

201 of the Medicare IVIG and 

Strengthening Medicare and Repaying 

Taxpayers Act of 2012 (the SMART 

Act). The interim final rule specifies a 

timeline for developing a multifactor 

authentication solution to securely 

permit authorized users other than the 

beneficiary to access CMS’ MSP 

conditional payment amounts and 

claims detail information via the MSP 

Web portal. It also requires that we add 

functionality to the existing MSP Web 

portal that permits users to: notify us 

that the specified case is approaching 

settlement; obtain time and date 

stamped final conditional payment 

summary forms and amounts before 

reaching settlement; and ensure that 

relatedness disputes and any other 

discrepancies are addressed within 11 

business days of receipt of dispute 

documentation. 

DATES: Effective date: These regulations 

are effective on November 19, 2013. 

Comment date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

November 19, 2013. 

ADDRESSES: In commenting, please refer 

to file code CMS–6054–IFC. 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 specific issues 

in this regulation to http://

www.regulations.gov. Follow the 

instructions for ‘‘Comment or 

Submission’’ and enter the filecode to 

find the document accepting comments. 

2. By regular mail. You may mail 

written comments (one original and two 

copies) to the following address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–6054– 

IFC, 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 (one 

original and two copies) to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–6054–IFC, 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 (one original 

and two copies) before the close of the 

comment period to either of the 

following addresses: 

a. Room 445–G, Hubert H. Humphrey 

Building, 200 Independence Avenue 

SW., Washington, DC 20201; 

(Because access to the interior of the 

HHH 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. 7500 Security Boulevard, Baltimore, 

MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

9994 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. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Mattes, (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, 

phone 1–800–743–3951. 

I. Background 

The Medicare IVIG and Strengthening 

Medicare and Repaying Taxpayers Act 

of 2012 (the SMART Act) was enacted 

on January 10, 2013. Section 201 of the 

SMART Act amends section 

1862(b)(2)(B) of the Social Security Act 

(the ‘‘Act’’) and requires the 

establishment of an internet Web site 

(hereinafter referred to as the ‘‘Web 

portal’’) through which beneficiaries, 

their attorneys or other representatives, 

and authorized applicable plans (as 

defined in section 1862 (b)(8)(F) of the 

Act (42 U.S.C. 1395y(b)(8)(F))) who have 

pending liability insurance (including 

self-insurance), no-fault insurance, or 

workers’ compensation settlements, 

judgments, awards, or other payments 

may access related CMS’ MSP 

conditional payment amounts and 

claims detail information. We are 

issuing this interim final rule to 

implement our timeframe for the 

expansion of the existing MSP Web 

portal in order to comply with the 

SMART Act. 

The existing MSP Web portal 

currently permits authorized users 

(including beneficiaries, attorneys, or 

other representatives) and applicable 

plans to register through the Web portal 

in order to access MSP conditional 

payment amounts electronically and 

update certain case-specific information 

online. 

Beneficiaries are able to log into the 

existing Web portal by logging into their 

MyMedicare.gov accounts. The Web 

portal provides detailed data on claims 

that Medicare paid conditionally that 

are related to the beneficiary’s liability 

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

compensation settlement, judgment, 

award, or other payment (hereinafter, 

for ease of reference, referred to as 

‘‘settlement(s)’’). This detailed claims 

data for each claim includes dates of 

service, provider information, total 

charges, conditional payment amounts, 

and diagnosis codes. 

A beneficiary’s attorney or other 

representative may also register through 

the Web portal to access conditional 

payment information. However, in 


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accordance with federal privacy and 

security requirements, including the 

Federal Information Security 

Management Act (FISMA), we do not 

permit attorneys and other 

representatives to view certain aspects 

of the beneficiary’s claims data via the 

internet. This means that an attorney or 

other representative currently must preregister to use the Web portal and must 

submit proper proof of representation 

before he or she is able to access a 

beneficiary’s case, but the Web portal 

limits what the attorney or other 

representative is able to view. 

Once the attorney or other 

representative is designated as an 

authorized user, he or she may log into 

the Web portal to view the conditional 

payment amount and perform certain 

actions, which include addressing 

discrepancies by disputing claims and 

uploading settlement information. 

However, in order to dispute claims, the 

attorney or other representative must 

have a conditional payment letter (CPL) 

in hand. A CPL contains data points like 

diagnosis codes, provider names, and 

dates of service. The Web portal restricts 

or ‘‘masks’’ certain information— 

including diagnosis codes, provider 

names, and dates of service—for 

individuals other than the beneficiary. 

Using the CPL, the attorney or other 

representative can decipher the masked 

claim-specific information, identify the 

claim lines that the attorney or 

representative believe are unrelated to 

the settlement, and issue the dispute to 

Medicare’s contractor through the Web 

portal. The masked information will not 

be displayed through the Web portal to 

a beneficiary’s attorney or other 

representative until we implement a 

multifactor authentication solution. 

These same security limitations mean 

that the applicable plan must also preregister and must submit proper consent 

to release in order to access a 

beneficiary’s case through the Web 

portal. The applicable plan is unable to 

take action on a beneficiary’s case 

unless it has obtained proof of 

representation that authorizes it to act 

on behalf of the beneficiary. 

As described later in this interim final 

rule with comment period, we intend to 

implement a security feature known as 

multifactor authentication to the Web 

portal. Multifactor authentication uses a 

combination of two or more different 

methods to authenticate a user identity. 

More information regarding multifactor 

authentication may be found in the CMS 

Enterprise Information Security Group 

Risk Management Handbook, Volume 

III, Standard 3.1, CMS Authentication 

Standards, Version 1.2 (Document 

Number: CMS–CISO–2012–vIII–STD3.1) 

This version of CMS’ Risk Management 

Handbook can be found at http://

www.cms.gov/Research-Statistics-Dataand-Systems/CMS-InformationTechnology/InformationSecurity/

Downloads/RMH_VIII_3-1_

Authentication.pdf. When we 

implement multifactor authentication, 

an authorized attorney or other 

representative, or an authorized 

applicable plan, will be able to view 

claim-specific data—including 

diagnosis codes, provider names, and 

dates of service—via the Web portal. 

Until then, an authorized attorney or 

other representative and an authorized 

applicable plan may only view the total 

conditional payment amount associated 

with a beneficiary’s case. 

In keeping with the requirements of 

the SMART Act, this interim final rule 

with comment period begins the process 

of developing a solution that will 

securely permit authorized users other 

than the beneficiary to access the 

beneficiary’s personal health 

information via the internet. We are 

adding functionality to the existing Web 

portal that permits users to notify us 

when the specified case is approaching 

settlement, download or otherwise 

obtain time and date stamped final 

conditional payment summary forms 

and amounts before reaching settlement, 

and ensure that relatedness disputes 

and any other discrepancies are 

addressed within 11 business days of 

receipt of dispute documentation. 

II. Provisions of the Interim Final 

Regulations 

A. Accessing Conditional Payment 

Information Through the Medicare 

Secondary Payer Web Portal 

We will continue to provide 

beneficiaries with access to details on 

claims related to their pending 

settlements through the Web portal. 

This will include dates of service, 

provider names, diagnosis codes, and 

conditional payment amounts. 

Beneficiaries and their attorneys or 

other representatives will continue to be 

able to dispute the relatedness of claims 

and submit a notice of settlement and 

other types of documentation through 

the Web portal. We will add 

functionality that will permit 

beneficiaries to download or otherwise 

electronically obtain time and date 

stamped payment summary forms, and 

exchange other information securely 

with Medicare’s contractor via the Web 

portal. 

A beneficiary’s attorney or other 

representative and the applicable plan 

will continue to be able to register 

through the Web portal and access 

conditional payment information 

related to a beneficiary’s pending 

settlement. However, their access will 

remain limited until we develop and 

implement a multifactor authentication 

process, as defined in and required by 

the most recent version of the CMS 

Enterprise Information Security Group 

Risk Management Handbook, Volume 

III, Standard 3.1, CMS Authentication 

Standards, developed in accordance 

with FISMA and regulations 

promulgated by the National Institute of 

Standards and Technology (NIST). The 

most recent version of CMS’ Risk 

Management Handbook can be found at 

http://www.cms.gov/Research-StatisticsData-and-Systems/CMS-InformationTechnology/InformationSecurity/

Downloads/RMH_VIII_3-1_

Authentication.pdf. 

We will develop a multifactor 

authentication solution for use in the 

Web portal within 90 days of the 

effective date of this interim final rule 

with comment period. We expect to 

implement the solution no later than 

January 1, 2016. Once this solution has 

been implemented, a beneficiary’s 

authorized attorney or other 

representatives or an authorized 

applicable plan that has appropriately 

registered to access the Web portal will 

have access to the beneficiary’s MSP 

conditional payment information for a 

specified MSP recovery case. This 

information will include dates of 

services, provider names, diagnosis 

codes, and conditional payment 

amounts. 

B. Obtaining a Final Conditional 

Payment Amount 

The beneficiary, his or her attorney or 

other representative, or an applicable 

plan is required to provide initial notice 

of pending liability insurance (including 

self-insurance), no-fault insurance, and 

workers’ compensation settlements, 

judgments, awards, or other payment to 

the appropriate Medicare contractor at 

least 185 days before the anticipated 

date of settlement. This 185-day 

timeframe encompasses the 120-day 

‘‘protected’’ period in section 

1862(b)(2)(B)(vii)(I) of the Act and the 

65-day Secretarial response period in 

section 1862(b)(2)(B)(vii)(V) of the Act. 

The Medicare contractor will compile 

and post claims that are related to the 

pending settlement for which Medicare 

has paid conditionally. This information 

will be posted to the Web portal within 

65 days of receipt of the initial notice of 

the pending settlement. 

Section 1862(b)(2)(B)(vii)(V) of the 

Act permits us to extend our response 

timeframe by an additional 30 days if 

we determine that additional time is 


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57802 Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations 

required to address related claims that 

Medicare has paid conditionally. We 

anticipate that such situations would 

include, but are not limited to, the 

following: 

• A recovery case that requires CMS’ 

contractor to review the systematic 

filtering of associated claims for a case 

and subsequently adjust those filters 

manually to ensure that claims are 

related to the pending settlement, and 

• CMS systems failures that do not 

otherwise fall within the definition of 

exceptional circumstances. 

Section 1862(b)(2)(B)(vii)(V) of the 

Act also permits us to further extend our 

claims compilation response timeframe 

by the number of days required to 

address the issue(s) that resulted from 

‘‘exceptional circumstances’’ pertaining 

to a failure in the claims and payment 

posting system. Per the statute, such 

situations must be defined in 

regulations in a manner such that ‘‘not 

more than 1 percent of the repayment 

obligations . . . would qualify as 

exceptional circumstances.’’ Therefore, 

we are adding new regulations at 42 

CFR 411.39 that define ‘‘exceptional 

circumstances’’ to include, but not be 

limited to: System failure(s) due to 

consequences of extreme adverse 

weather (loss of power, flooding, etc.); 

security breaches of facilities or 

network(s); terror threats; strikes and 

similar labor actions; civil unrest, 

uprising or riot; destruction of business 

property (as by fire, etc.); sabotage; 

workplace attack on personnel; and 

similar circumstances beyond the 

ordinary control of government or 

private sector officers or management. 

The beneficiary, or his or her attorney 

or other representative, may notify CMS, 

once and only once, via the Web portal, 

of an impending settlement, any time 

after Medicare’s contractor has posted 

its initial claims compilation (65 days 

after initial notice to Medicare) and up 

to 120 days before the anticipated date 

of settlement. 

It is important to note that the 

beneficiary, or his or her attorney or 

other representative, may request a 

claims refresh via the Web portal any 

time after Medicare posts its initial 

claims compilation. However, the 

beneficiary, or his or her attorney or 

other representative, must request and 

receive confirmation of a claims refresh 

via the Web portal before he or she will 

be able to obtain a final conditional 

payment amount. We will provide 

confirmation of the completion of a 

claims refresh through the Web portal 

no later than 5 business days after the 

electronic request is initiated. 

If the beneficiary, or his or her 

authorized attorney or other 

representative, believes that claims 

included in the most up-to-date 

conditional payment summary form are 

unrelated to the pending liability 

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

compensation ‘‘settlement’’, he or she 

may address discrepancies through a 

dispute process available through the 

Web portal. The beneficiary, or his or 

her authorized attorney or other 

representative, may dispute a claim 

once and only once. The beneficiary or 

his or her authorized attorney or other 

representative may be required to 

submit additional supporting 

documentation in a form and manner 

specified by the Secretary to support the 

assertion that the disputed claim is 

unrelated to the settlement. 

Disputes submitted through the Web 

portal will be resolved within 11 

business days of receipt of the dispute 

and any required supporting 

documentation as per 

1862(b)(2)(B)(vii)(IV) of the Act. 

After disputes have been fully 

resolved, and the beneficiary, or his or 

her attorney or other representative, has 

executed a final claims refresh and 

obtained confirmation that the refresh 

has been performed, he or she may 

download or otherwise request a time 

and date stamped final conditional 

payment summary form through the 

Web portal. This form will constitute 

the final conditional payment amount if 

settlement is reached within 3 days of 

the date on the conditional payment 

summary form. If the beneficiary or his 

or her attorney is approaching 

settlement and any disputes have not 

been fully resolved, he or she may not 

download or otherwise request a final 

conditional payment summary form 

until the dispute has been resolved. 

It is important to note that, as per 

section 1862(b)(2)(B)(vii)(IV) of the Act, 

this 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. 

However, the beneficiary will maintain 

his or her appeal rights regarding CMS’ 

MSP recovery determination, once CMS 

issues its final demand. Those appeal 

rights are explained in the final demand 

letter issued by CMS and more 

information may be found in 42 CFR 

part 405, subpart I. 

Within 30 days of securing the 

settlement, the beneficiary or his or her 

attorney or other representative must 

submit through the Web portal 

‘‘settlement’’ information specified by 

the Secretary. We expect that the 

amount and type of ‘‘settlement’’ 

information required will be the same 

information that CMS typically collects 

to calculate its final demand amount. 

This information will include, but is not 

limited to: The date of ‘‘settlement’’, the 

total ‘‘settlement’’ amount, the attorney 

fee amount or percentage, and 

additional costs borne by the beneficiary 

to obtain his or her ‘‘settlement’’. We 

will require that this information is 

provided within 30 days of the date of 

settlement. Otherwise, the final 

conditional payment amount obtained 

through the Web portal will expire. 

Once settlement information is received, 

we will apply a pro rata reduction to the 

final conditional payment amount in 

accordance with 42 CFR 411.37 and 

issue a final MSP recovery demand 

letter. We understand that providing 

settlement information within 30 days 

of the date of settlement may be 

challenging at times, but we would like 

to encourage beneficiaries and their 

attorneys or other representatives to 

assist us in providing swift resolutions 

to these matters and promotE timely 

recoveries for Medicare. We expect to 

incorporate a method into the Web 

portal that will allow settlement 

information to be entered directly 

through the Web portal and/or uploaded 

directly through the Web portal. 

If the underlying liability insurance 

(including self-insurance), no-fault 

insurance, or workers’ compensation 

claim derives from alleged exposure to 

a toxic substance or environmental 

hazard, ingestion of pharmaceutical 

drug or other product or substance, or 

implantation of a medical device, joint 

replacement or something similar, the 

beneficiary or his or her attorney or 

other representative must provide notice 

to the CMS contractor via the Web 

portal before beginning the process to 

obtain a final conditional payment 

summary form and amount through the 

Web portal. Many of these types of 

recovery cases require additional 

manual filtering and review to ensure 

that the claims included in the payment 

summary form are related to the 

pending settlement. 

An applicable plan may obtain a final 

conditional payment amount related to 

a pending liability insurance (including 

self-insurance), no-fault insurance, or 

workers’ compensation ‘‘settlement’’, in 

the form and manner described in 42 

CFR 411.39(c), if the applicable plan has 

properly registered to use the Web 

portal and has obtained from the 

beneficiary and submitted to the 

appropriate Medicare contractor proper 

proof of representation. The applicable 

plan may obtain read only access if the 

applicable plan obtains from the 

beneficiary proper consent to release 


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and submits it to the appropriate 

Medicare contractor. 

The 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 and that are 

furnished prior to the time and date 

stamped on the final conditional 

payment summary form. Systems and 

process changes to provide final 

conditional payment summary forms 

and amounts via the Web portal will be 

implemented no later than January 1, 

2016. 

BILLING CODE 4120–01–P 

BILLING CODE 4120–01–C 

III. Waiver of Proposed Rulemaking 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register and invite public comment on 

the proposed rule. The notice of 

proposed rulemaking includes a 

reference to the legal authority under 

which the rule is proposed, and the 

terms and substances of the proposed 

rule or a description of the subjects and 

issues involved. Under Section 553(b) of 

the Administrative Procedure Act, this 

procedure can be waived for good cause, 

if an agency finds that notice and public 

comment thereon are impracticable, 

unnecessary, or contrary to the public 

interest and incorporates a statement of 

the finding and its reasons in the rule 

issued. We find that notice-andcomment rulemaking is unnecessary for 

this rule and that waiving it is in the 

public interest. 

The SMART Act amended the MSP 

provisions of the Act to establish a new 

clause in section 1862(b)(2)(B)(vii) of 


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57804 Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations 

the Act. This amendment requires us to 

develop a Web portal through which 

beneficiaries, their attorneys or other 

representatives, and authorized 

applicable plans can obtain Medicare’s 

final conditional payment information 

before the date of settlement, judgment, 

award, or other payment. 

These new MSP provisions of the Act 

focus on actions that must be taken by 

the Secretary to provide the specified 

Web portal service to the public. This 

regulation simply provides timeframes 

that the Secretary must comply with in 

order to ensure the required 

enhancements to the already existing 

MSP Web portal are completed, and that 

the functionality of the Web portal 

provides the information required by 

the Act. Accordingly, we find that 

notice-and-comment rulemaking is 

unnecessary because this regulation 

provides an additional procedural 

option for stakeholders, but does not 

change any substantive provision of the 

MSP program or otherwise impact our 

administration of the MSP program. In 

addition, we find that waiving noticeand-comment rulemaking would be in 

the public interest because requiring a 

notice of proposed rulemaking and 

public comment thereon would delay 

public access to this Web portal. We 

note that the SMART Act requires that 

we promulgate regulations to carry out 

the development and implementation of 

this Web portal not more than 9 months 

after enactment of this new legislation 

(which occurred January 10, 2013). For 

all of these reasons, we find good cause 

to waive the notice of proposed 

rulemaking and to issue this final rule 

on an interim basis. We are providing a 

60-day public comment period. 

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. Regulatory Impact Statement 

We have examined the impact of this 

rule as required by Executive Order 

12866 on Regulatory Planning and 

Review (September 30, 1993), Executive 

Order 13563 on Improving Regulation 

and Regulatory Review (February 2, 

2011), the Regulatory Flexibility Act 

(RFA) (September 19, 1980, Pub. L. 96– 

354), section 1102(b) of the Social 

Security Act, section 202 of the 

Unfunded Mandates Reform Act of 1995 

(March 22, 1995; Pub. L. 104–4), 

Executive Order 13132 on Federalism 

(August 4, 1999) and the Congressional 

Review Act (5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

(RIA) must be prepared for major rules 

with economically significant effects 

($100 million or more in any 1 year). We 

have determined that the effect of this 

proposed rule on the economy and the 

Medicare program is not economically 

significant, since it imposes certain 

requirements on the Agency to merely 

improve its current mechanism for 

providing conditional payment 

information to beneficiaries, their 

attorneys or other representatives, and 

authorized applicable plans. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

governmental jurisdictions. Most 

hospitals and most other providers and 

suppliers are small entities, either by 

nonprofit status or by having revenues 

of less than $7.0 million to less than 

$35.5 million in any 1 year. Individuals 

and states are not included in the 

definition of a small entity. We have 

determined that this proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities because there is and will be no 

change in the administration of the MSP 

provisions. Therefore, we are not 

preparing an analysis for the RFA. 

In addition, section 1102(b) of the Act 

requires us to prepare an RIA if a rule 

may have a significant impact on the 

operations of a substantial number of 

small rural hospitals. This analysis must 

conform to the provisions of section 604 

for proposed rules of the RFA. For 

purposes of section 1102(b) of the Act, 

we define a small rural hospital as a 

hospital that is located outside of a 

Metropolitan Statistical Area for 

Medicare payment regulations and has 

fewer than 100 beds. We have 

determined that this interim final rule 

with comment period would not have a 

significant effect on the operations of a 

substantial number of small rural 

hospitals because there is and would be 

no change in the administration of the 

MSP provisions. Therefore, we are not 

preparing an analysis for section 1102(b) 

of the Act. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 also 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule whose mandates require spending 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

In 2013, that threshold is approximately 

$141 million. This proposed rule has no 

consequential effect on state, local, or 

tribal governments or on the private 

sector because there is and will be no 

change in the administration of the MSP 

provisions. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on state and local 

governments, preempts state law, or 

otherwise has Federalism implications. 

Since this regulation does not impose 

any costs on state or local governments, 

the requirements of Executive Order 

13132 are not applicable. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was not reviewed by the Office of 

Management and Budget. 

List of Subjects in 42 CFR Part 411 

Kidney diseases, Medicare, Physician 

referral, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR 

chapter IV as set forth below: 

PART 411—EXCLUSIONS FROM 

MEDICARE AND LIMITATIONS ON 

MEDICARE PAYMENT 

■ 1. The authority citation for part 411 

continues to read as follows: 

Authority: Secs. 1102, 1860D–1 through 

1860D–42, 1871, and 1877 of the Social 

Security Act (42 U.S.C. 1302, 1395w–101 

through 1395w–152, 1395hh, and 1395nn). 

■ 2. Subpart B is amended by adding 

§ 411.39 to read as follows: 

§ 411.39 Automobile and liability 

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

compensation: Final conditional payment 

amounts via Web portal. 

(a) Definitions. For the purpose of this 

section the following definitions are 

applicable: 

Applicable plan means the following 

laws, plans, or other arrangements, 

including the fiduciary or administrator 

for such law, plan or arrangement: 

(1) Liability insurance (including selfinsurance). 

(2) No fault insurance. 

(3) Workers’ compensation laws or 

plans. 


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Medicare Secondary Payer 

conditional payment information means 

all of the following: 

(1) Dates of service. 

(2) Provider names. 

(3) Diagnosis codes. 

(4) Conditional payment amounts. 

(5) Claims detail information. 

(b) Accessing conditional payment 

information through the Medicare 

Secondary Payer Web portal. 

(1) Beneficiary access. A beneficiary 

may access his or her Medicare 

Secondary Payer conditional payment 

information via the Medicare Secondary 

Payer Recovery Portal (Web portal), 

provided the following conditions are 

met: 

(i) The beneficiary creates an account 

to access his or her Medicare 

information through the CMS Web site. 

(ii) The beneficiary provides initial 

notice of a pending liability insurance 

(including self-insurance), no-fault 

insurance, or workers’ compensation 

settlement, judgment, award, or other 

payment to the appropriate Medicare 

contractor at least 185 days before the 

anticipated date of settlement, 

judgment, award, or other payment. 

(2) Beneficiary’s attorney or other 

representative, or applicable plan’s 

access on or before December 31, 2015. 

On or before December 31, 2015, a 

beneficiary’s attorney or other 

representative or an applicable plan, 

may do the following: 

(i) View the following via the 

Medicare Secondary Payer Recovery 

Portal (Web portal): 

(A) Total MSP conditional payment 

amounts. 

(B) Masked claim-specific 

information, including dates of services, 

provider names, and diagnosis codes, 

provided the following conditions are 

met: 

(1) The authorized attorney or other 

representative or authorized applicable 

plan has properly registered to access 

the Web portal. 

(2) The attorney or other 

representative or applicable plan 

obtains proper authorization from the 

beneficiary and submits it to the 

appropriate Medicare contractor in the 

form of either proof of representation or 

consent to release in order to access the 

beneficiary’s case specific information. 

(ii) Perform the following actions via 

the MSP Web portal, using the 

information provided in the conditional 

payment letter: 

(A) Dispute claims. 

(B) Upload settlement information. 

(3) Beneficiary’s attorney or other 

representative, or applicable plan’s 

access on or after January 1, 2016. On 

or after January 1, 2016, a beneficiary’s 

attorney or other representative or an 

applicable plan, may do the following: 

(i) Access conditional payment 

information via the MSP Recovery 

Portal (Web portal) using the multifactor 

authentication processes provided that 

the following conditions are met: 

(A) The requirement described in 

paragraph (b)(2) of this section. 

(B) The beneficiary, his or her 

authorized attorney or other 

representative, or an authorized 

applicable plan, provides initial notice 

as described in paragraph (b)(2)(ii) of 

this section. 

(ii)(A) May dispute claims and upload 

settlement information via the Web 

portal using multifactor authentication; 

and 

(B) Will no longer need a conditional 

payment letter to obtain claim-specific 

information. 

(c) Obtaining a final conditional 

payment amount. (1) A beneficiary, or 

his or her attorney or other 

representative, or an applicable plan, 

may obtain a final conditional payment 

amount related to a pending liability 

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

compensation settlement, judgment, 

award, or other payment using the 

following process: 

(i) The beneficiary, his or her attorney 

or other representative, or an applicable 

plan, provides initial notice of a 

pending liability insurance (including 

self-insurance), no-fault insurance, and 

workers’ compensation settlement, 

judgment, award, or other payment to 

the appropriate Medicare contractor at 

least 185 days before the anticipated 

date of settlement, judgment, award, or 

other payment. 

(ii) The Medicare contractor compiles 

and posts claims for which Medicare 

has paid conditionally that are related to 

the pending settlement, judgment, 

award, or other payment within 65 days 

of receiving the initial notice of the 

pending settlement, judgment, award, or 

other payment. 

(A) CMS may extend its response 

timeframe by an additional 30 days 

when it determines that additional time 

is required to address claims that 

Medicare has paid conditionally that are 

related to the settlement, judgment, 

award, or other payment in situations 

including, but not limited to, the 

following: 

(1) A recovery case that requires 

manual filtering to ensure that 

associated claims are related to the 

pending settlement, judgment, award, or 

other payment. 

(2) Internal CMS systems failures not 

otherwise considered caused by 

exceptional circumstances. 

(B) In exceptional circumstances, 

CMS may further extend its response 

timeframe by the number of days 

required to address the issue that 

resulted from such exceptional 

circumstances. Exceptional 

circumstances include, but are not 

limited to the following: 

(1) Systems failure(s) due to 

consequences of extreme adverse 

weather (loss of power, flooding, etc.). 

(2) Security breaches of facilities or 

network(s). 

(3) Terror threats; strikes and similar 

labor actions. 

(4) Civil unrest, uprising or riot. 

(5) Destruction of business property 

(as by fire, etc.). 

(6) Sabotage. 

(7) Workplace attack on personnel. 

(8) Similar circumstances beyond the 

ordinary control of government, private 

sector officers or management. 

(iii) Beginning any time after CMS 

posts its initial claims compilation, and 

up to 120 days before the anticipated 

date of a settlement, judgment, award, 

or other payment, the beneficiary, or his 

or her attorney, or other representative 

may notify CMS, once and only once, 

via the Web portal, that a settlement, 

judgment, award or other payment is 

expected to occur within 120 days or 

less from the date of notification. 

(A) On or before December 31, 2015, 

the beneficiary, or his or her attorney, or 

other representative must request an 

update of claim and payment 

information (hereafter referred to as a 

claims refresh) via the Web portal and 

await confirmation that the claims 

refresh has been completed. CMS 

provides confirmation of the claims 

refresh completion through the Web 

portal no later than 5 business days after 

the electronic request is initiated. 

(B) On or after January 1, 2016, CMS 

provides an uninitiated claims refresh 

via updated functionality to the Web 

portal. 

(iv) The beneficiary, or his or her 

attorney, or other representative may 

address discrepancies by disputing a 

claim, once and only once, if he or she 

believes that the claim included in the 

most up-to-date conditional payment 

summary form is unrelated to the 

pending liability insurance (including 

self-insurance), no-fault insurance, or 

workers’ compensation settlement, 

judgment, award, or other payment. 

(A) 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. 

(B) The beneficiary, or his or her 

attorney or other representative may be 


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57806 Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Rules and Regulations 

required to submit supporting 

documentation in the form and manner 

specified by the Secretary to support his 

or her dispute. 

(v) Disputes submitted through the 

Web portal are resolved within 11 

business days of receipt of the dispute 

and any required supporting 

documentation. 

(vi) When any disputes have been 

fully resolved and the beneficiary, or his 

or her attorney, or other representative 

has executed and obtained confirmation 

of the completion of a final claims 

refresh, then: 

(A) The beneficiary, or his or her 

attorney or other representative, may 

download or otherwise request a time 

and date stamped conditional payment 

summary form through the Web portal. 

If the download or request is within 3 

days of the date of settlement, judgment, 

award or other payment, that 

conditional payment summary form will 

constitute Medicare’s final conditional 

payment amount. 

(B) If the beneficiary, or his or her 

attorney or other representative, is 

within 3 days of the date of settlement, 

judgment, award, or other payment and 

any claim disputes have not been fully 

resolved, he or she may not download 

or otherwise request a final conditional 

payment summary form. 

(vii)(A) Within 30 days of securing a 

settlement, judgment, award, or other 

payment, the beneficiary, or his or her 

attorney or other representative, must 

submit through the Web portal 

documentation specified by the 

Secretary, including, but not limited to 

the following: 

(1) The date of settlement, judgment, 

award, or other payment, including the 

total settlement amount, the attorney fee 

amount or percentage. 

(2) Additional costs borne by the 

beneficiary to obtain his or her 

settlement, judgment, award, or other 

payment. 

(B) If settlement information is not 

provided within 90 days of securing the 

settlement, the final conditional 

payment amount obtained through the 

Web portal is void. 

(viii) Once settlement, judgment, 

award, or other payment information is 

received, CMS applies a pro rata 

reduction to the final conditional 

payment amount in accordance with 

§ 411.37 and issues a final MSP recovery 

demand letter. 

(2) If the underlying liability 

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

compensation claim derives from one of 

the following, the beneficiary, or his or 

her attorney or other representative, 

must provide notice to CMS’ contractor 

via the Web portal in order to obtain a 

final conditional payment summary 

form and amount through the Web 

portal: 

(i) Alleged exposure to a toxic 

substance, 

(ii) Environmental hazard, 

(iii) Ingestion of pharmaceutical drug 

or other product or substance, 

(iv) Implantation of a medical device, 

joint replacement, or something similar. 

(3) An applicable plan may obtain a 

final conditional payment amount 

related to a pending liability insurance 

(including self-insurance), no-fault 

insurance, or workers’ compensation 

settlement, judgment, award, or other 

payment in the form and manner 

described in § 411.38(b) if the applicable 

plan has properly registered to use the 

Web portal and has obtained from the 

beneficiary, and submitted to the 

appropriate CMS contractor, proper 

proof of representation. The applicable 

plan may obtain read only access if the 

applicable plan obtains proper consent 

to release from the beneficiary, and 

submits it to the appropriate CMS 

contractor. 

(4) On or after January 1, 2016, the 

MSP Web portal will include 

functionality to provide final MSP 

conditional payment summary forms 

and amounts. 

(d) Obligations with respect to future 

medical items and services. 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. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: July 18, 2013. 

Marilyn Tavenner, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: September 11, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–22934 Filed 9–19–13; 8:45 am] 

BILLING CODE 4120–01–P 


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