Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 10611 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 405 

[CMS–6055–F] 

RIN 0938–AS03 

Medicare Program; Right of Appeal for 

Medicare Secondary Payer 

Determinations Relating to Liability 

Insurance (Including Self-Insurance), 

No-Fault Insurance, and Workers’ 

Compensation Laws and Plans 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

provisions of the Strengthening 

Medicare and Repaying Taxpayers Act 

of 2012 (SMART Act) which require us 

to provide a right of appeal and an 

appeal process for liability insurance 

(including self-insurance), no-fault 

insurance, and workers’ compensation 

laws or plans when Medicare pursues a 

Medicare Secondary Payer (MSP) 

recovery claim directly from the liability 

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

compensation law or plan. 

DATES: Effective Date: These regulations 

are effective on April 28, 2015. 

Applicability Date: Applicable plans 

are parties to initial determinations 

issued on or after April 28, 2015 where 

CMS pursues recovery directly from an 

applicable plan. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Wright, (410) 786–4292. 

Cynthia Ginsburg, (410) 786–2579. 

SUPPLEMENTARY INFORMATION: 

I. General Overview and Background 

A. General Overview 

When the Medicare program was 

enacted in 1965, Medicare was the 

primary payer for all medically 

necessary covered and otherwise 

reimbursable items and services, with 

the exception of those items and 

services covered and payable by 

workers’ compensation. In 1980, the 

Congress enacted the Medicare 

Secondary Payer (MSP) provisions of 

the Social Security Act (the Act), which 

added section 1862(b) to the Act and 

established Medicare as the secondary 

payer to certain primary plans. Primary 

plan, as defined in section 1862(b)(2)(A) 

of the Act, means a group health plan 

or large group health plan, workers’ 

compensation law or plan, automobile 

or liability insurance policy or plan 

(including self-insured plan) or no-fault 

insurance. 

Section 1862(b)(2) of the Act, in part, 

prohibits Medicare from making 

payment where payment has been made 

or can reasonably be expected to be 

made by a primary plan. If payment has 

not been made or cannot reasonably be 

expected to be made by a primary plan, 

Medicare may make conditional 

payments with the expectation that the 

payments will be reimbursed to the 

appropriate Medicare Trust Fund. That 

is, Medicare may pay for medical claims 

with the expectation that it will be 

repaid if the beneficiary obtains a 

settlement, judgment, award, or other 

payment. A primary plan and any entity 

that receives payment from a primary 

plan shall reimburse the appropriate 

Medicare Trust Fund for Medicare’s 

payments for items and services if it is 

demonstrated that such primary plan 

has or had responsibility to make 

payment with respect to such items and 

services. 

The responsibility for payment on the 

part of workers’ compensation, liability 

insurance (including self-insurance), 

and no-fault insurance is generally 

demonstrated by a settlement, judgment, 

award, or other payment (including, for 

example, assuming ongoing 

responsibility for medicals (ORM)). 

When such occurs, the settlement, 

judgment, award or other payment is 

subject to the Act’s MSP provisions 

because a ‘‘payment has been made’’ 

with respect to medical care of a 

beneficiary related to that settlement, 

judgment, award or other payment. 

Section 1862(b)(2)(B)(iv) of the Act 

provides the federal government 

subrogation rights to any right under 

MSP of an individual or any other entity 

to payment for items or services under 

a primary plan, to the extent Medicare 

payments were made for such medical 

items and services. Moreover, section 

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

federal government a direct right of 

action to recover conditional payments 

made by Medicare. This direct right of 

action, which is separate and 

independent from Medicare’s statutory 

subrogation rights, may be brought to 

recover conditional payments against 

any or all entities that are or were 

responsible for making payment for the 

items and services under a primary 

plan. Under the direct right of action, 

the federal government may also recover 

from any entity that has received 

payment from a primary plan or the 

proceeds of a primary plan’s payment to 

any entity. 

Moreover, the MSP statute requires a 

‘‘demonstration of primary payment 

responsibility;’’ it does not require that 

CMS prove that the alleged incident or 

injury caused particular medical care. A 

primary plan’s responsibility for 

payment may be demonstrated by a 

judgment, a payment conditioned upon 

the recipient’s compromise, waiver, or 

release (whether or not there is a 

determination of liability) of payment or 

otherwise. A settlement, judgment, 

award, or other payment (including, for 

example, an assumption of ORM) is 

sufficient to demonstrate primary 

payment responsibility for what has 

been claimed, released, or released in 

effect. 

B. Background 

The Strengthening Medicare and 

Repaying Taxpayers Act of 2012 (the 

SMART Act) was signed into law by 

President Obama on January 10, 2013, 

and amends the Act’s MSP provisions 

(found at 42 U.S.C. 1395y(b)). 

Specifically, section 201 of the SMART 

Act added paragraph (viii) to section 

1862(b)(2)(B) of the Act. This new 

clause requires Medicare to promulgate 

regulations establishing a right of appeal 

and an appeals process, with respect to 

any determination for which the 

Secretary is seeking to recover payments 

from an applicable plan (as defined in 

the MSP provisions), under which the 

applicable plan involved, or an attorney, 

agent, or third-party administrator on 

behalf of the applicable plan, may 

appeal such a determination. Further, 

the individual furnished such an item 

and/or service shall be notified of the 

applicable plan’s intent to appeal such 

a determination. For purposes of this 

provision, the term applicable plan 

refers to liability insurance (including 

self-insurance), no-fault insurance, or a 

workers’ compensation law or plan, as 

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

Act. 

Currently, if an MSP recovery demand 

is issued to the beneficiary as the 

identified debtor, the beneficiary has 

formal administrative appeal rights and 

eventual judicial review as set forth in 

subpart I of part 405. If the recovery 

demand is issued to the applicable plan 

as the identified debtor, currently the 

applicable plan has no formal 

administrative appeal rights or judicial 

review. CMS’ recovery contractor 

addresses any dispute raised by the 

applicable plan, but there is no 

multilevel formal appeal process. 

Subpart I of part 405, provides for a 

multilevel process including a 

redetermination by the contractor 

issuing the recovery demand, a 

reconsideration by a Qualified 

Independent Contractor (QIC), an 

Administrative Law Judge (ALJ) hearing, 


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10612 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

a review by the Departmental Appeals 

Board’s (DAB) Medicare Appeals 

Council (MAC), and eventual judicial 

review, and sets forth details on the 

process including standing to request an 

appeal, filing requirements, amount in 

controversy requirements, and other 

requirements. The December 27, 2013 

proposed rule (78 FR 78802) would add 

appeals for applicable plans where 

Medicare is pursuing recovery directly 

from the applicable plan. The debts at 

issue involve recovery of the same 

conditional payments that would be at 

issue if recovery were directed at the 

beneficiary. Given this, we believe it is 

appropriate to utilize the same 

multilevel appeals process for 

applicable plans. 

II. Provisions of the Proposed 

Regulations and Analysis of and 

Responses to Public Comments 

A. Introduction 

In the December 27, 2013 Federal 

Register (78 FR 78802), we published a 

proposed rule that would implement 

section 201 of the SMART Act which 

required us to promulgate regulations 

establishing a right of appeal and an 

appeals process with respect to any 

determination for which the Secretary is 

seeking to recover payments from an 

applicable plan. Our proposals would 

add appeal rights for applicable plans 

where Medicare is pursuing recovery 

directly from the applicable plan 

utilizing the existing appeals procedures 

in part 405 subpart I applicable to 

appeals filed by beneficiaries when 

Medicare seeks recovery of conditional 

payments directly from the beneficiary. 

We received approximately 19 timely 

pieces of public correspondence on the 

December 27, 2013 proposed rule. 

Commenters included insurance 

industry associations and organizations, 

beneficiary and other advocacy groups, 

entities offering MSP compliance 

services, and health insurance plans. 

The commenters generally supported 

our proposals. 

Because of the type of comments 

received, we are using the following 

approach to structure this section of the 

final rule: 

• Presenting the proposed 

provision(s) based on topic area(s) of the 

public comments. 

• Providing the proposed provisions 

for which we did not received public 

comments. 

• Providing and responding to the 

public comments that do not ‘‘fit’’ in the 

topic areas noted previously. The 

following is a list of the regulatory 

provisions that would be revised or 

added in accordance with the December 

13, 2013 proposed rule: 

• § 405.900 Basis and scope 

• § 405.902 Definitions 

• § 405.906 Parties to the initial 

determinations, redeterminations, 

reconsiderations, hearings, and reviews 

• § 405.910 Appointed 

representatives 

• § 405.921 Notice of initial 

determination 

• § 405.924 Actions that are initial 

determinations 

• § 405.926 Actions that are not 

initial determinations 

• Proposed § 405.947 Notice to the 

beneficiary of applicable plan’s request 

for a redetermination 

B. Discussion of the Provisions of the 

Proposed Rule by Public Comment 

Topic 

In this section of the final rule we 

provide a general overview and a 

response to the public comments 

received, grouped under the following 

topics: 

• Definition of Applicable Plan 

• Issues Subject to Appeal/Not Subject 

to Appeal 

• Party Status/Who Can Appeal and 

When 

• Use of an Attorney or Other 

Representative; Assignment of Appeal 

Rights 

• Notice 

• Appeal Processes/Determining the 

Identified Debtor 

• Interest and Penalties 

• Applicability of the Proposed Rule to 

Medicare Part C and/or Medicare Part 

D 

• Other 

1. Definition of Applicable Plan 

We proposed adding the following 

definition for ‘‘applicable plan’’ in 

§ 405.902, Definitions: ‘‘Applicable plan 

means liability insurance (including 

self-insurance), no-fault insurance, or a 

workers’ compensation law or plan.’’ 

This is the statutory definition of 

‘‘applicable plan’’ in section 

1862(b)(8)(F) of the Act. 

Comment: A commenter requested 

that CMS revise the definition of 

applicable plan in the proposed rule to 

read: Applicable plan means liability 

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

compensation law or plan where 

payment has been made or can 

reasonably be expected to be made 

under a workmen’s compensation law 

or plan of the United States or a state 

or under an automobile or liability 

insurance policy or plan (including a 

self-insured plan) or under no-fault 

insurance. 

Response: We disagree with the 

recommended revision. The definition 

of the term ‘‘applicable plan’’ is the 

definition set forth in section 1862(b)(8) 

of the Act. The reference to ‘‘. . . 

applicable plan under [section 

1862(b)(2)(A)(ii) of the Act]’’ (pursuant 

to the SMART Act and as codified now 

in section 1862(b)(2)(B)(viii) of the Act) 

is a reference to when CMS would 

pursue recovery with respect to liability 

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

compensation law or plan recoveries 

where primary payment responsibility 

has been demonstrated, and is not a part 

of the definition of the term ‘‘applicable 

plan’’ itself. The term ‘‘applicable plan’’ 

as referred to in the SMART Act has a 

pre-existing definition in the same 

section of the Medicare statute (that is, 

in section 1862(b) of the Act). Therefore, 

we are finalizing the definition of the 

term ‘‘applicable plan’’ as proposed. 

2. Issues Subject To Appeal/Not Subject 

To Appeal 

In order for an action to be subject to 

the appeal process set forth in subpart 

I of 42 CFR part 405, there must be an 

‘‘initial determination.’’ Section 

405.924, Actions that are initial 

determinations, addresses actions that 

are initial determinations (and thus 

subject to appeal) for purposes of part 

405 subpart I. We proposed adding 

paragraph (b)(15) to this section to 

specifically provide that where 

Medicare is pursuing recovery directly 

from an applicable plan, there is an 

initial determination with respect to the 

amount and the existence of the 

recovery claim. This addition would 

generally parallel the existing 

provisions of § 405.924(b)(14) 

addressing pursuing MSP recovery 

claims from a beneficiary, provider, or 

supplier. In addition to these changes, 

for consistency, we proposed a number 

of technical and formatting changes. 

Paragraph (a) of § 405.926, Actions 

that are not initial determinations, 

addresses actions that are not initial 

determinations (and thus not subject to 

appeal) for purposes of part 405 subpart 

I because such determinations are the 

sole responsibility of CMS. Generally 

under § 405.926(k) initial 

determinations with respect to primary 

payers are not initial determinations. In 

conjunction with the proposed addition 

of § 405.924(b)(15), we proposed adding 

an exception to § 405.926(k) for initial 

determinations set forth in 

§ 405.924(b)(15). Additionally, we 

proposed to add a new paragraph 

§ 405.926(a)(3) to clarify that a 

determination of the debtor for a 

particular MSP recovery claim is not an 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 10613 

initial determination for purposes of 

part 405 subpart I. Because Medicare 

has the right to recover conditional 

payments from the beneficiary, the 

primary payer, or any other entity that 

has received the proceeds from payment 

by the primary plan, Medicare’s 

decision regarding who or what entity it 

is pursuing recovery from is not subject 

to appeal. We also proposed to add the 

word ‘‘facilitates’’ to the existing 

‘‘sponsors or contributes to’’ language in 

§ 405.926(k) in recognition of our 

longstanding position that the concept 

of employer sponsorship or contribution 

has always included facilitation efforts. 

Finally, for consistency, we proposed 

making several technical changes. 

Comment: A number of commenters 

believe that the issue of who or which 

entity CMS pursues an MSP recovery 

from should be subject to appeal. Some 

commenters requested that CMS always 

pursue recovery from the beneficiary 

first. Others believe that if the 

applicable plan has paid the beneficiary, 

recovery should be limited to the 

beneficiary. A commenter stated that the 

parties to a settlement, judgment, award, 

or other payment should be allowed to 

designate who CMS pursues or, at least 

who CMS pursues first. 

Response: We decline these requests. 

Pursuant to section 1862(b)(2)(B)(ii) of 

the Act and 42 CFR 411.24 of the 

regulations, we have the right to pursue 

recovery from the beneficiary, the 

primary payer or any other entity 

receiving proceeds from the payment by 

the primary plan. We may recover from 

the applicable plan even if the 

applicable plan has already reimbursed 

the beneficiary or other party. Under our 

existing regulations under part 405 

subpart I, beneficiaries have formal 

appeal rights; applicable plans do not 

have such rights. The SMART Act’s 

provisions codified in section 

1862(b)(2)(B)(viii) of the Act require us 

to provide formal appeal rights and a 

formal appeal process for applicable 

plans, but these provisions do not 

change Medicare’s underlying recovery 

rights. 

Comment: Some commenters would 

like to be able to appeal who is the 

identified debtor in a situation where 

there are multiple entities which are 

primary payers to Medicare (a 

beneficiary with multiple types of 

coverage or multiple settlements, or 

both). That is, they would like to be able 

to appeal whether CMS recovers from 

‘‘applicable plan #1’’ rather than 

‘‘applicable plan #2’’ in a situation 

where both applicable plans are primary 

to Medicare. 

Response: We disagree. In accordance 

with section 1862(b)(2)(B)(ii) of the Act 

and 42 CFR 411.24 of the regulations, 

we have the right to pursue recovery 

from the beneficiary, the primary payer 

or any other entity receiving proceeds 

from the payment by the primary plan. 

Section 411.24(e) states that we have a 

direct right of action to recover from any 

primary payer. 

Comment: A commenter requested 

that CMS remove any restrictions on the 

applicable plan, including the right to 

seek recovery from the beneficiary, 

service provider or other entity. Another 

commenter stated that the proposed rule 

did not address whether the applicable 

plan may seek recovery from another 

entity. 

Response: We decline this request. 

The commenter is requesting that we 

provide a statement of the applicable 

plan’s rights against Medicare 

beneficiaries, providers/suppliers, or 

other entities which is outside the scope 

of this rule. 

After review and consideration of 

comments related to § 405.924 and 

§ 405.926, we are finalizing the changes 

to these sections with modifications. In 

order to address the addition of a new 

paragraph (b)(15) to § 405.924 via the 

CY 2015 Physician Fee Schedule final 

rule with comment period (79 FR 

68001), we will need to add proposed 

paragraph (b)(15) as paragraph (b)(16) 

and make conforming cross-references 

changes in § 405.906 and § 405.926(k). 

3. Party Status/Who Can Appeal and 

When 

We proposed to add paragraph (a)(4) 

to § 405.906, Parties to the initial 

determinations, redeterminations, 

reconsiderations, hearings, and reviews, 

to specify that an applicable plan is a 

party to an initial determination under 

proposed § 405.924(b)(15) where 

Medicare is pursuing recovery directly 

from the applicable plan. The applicable 

plan is the sole party to an initial 

determination when an applicable plan 

is a party. By ‘‘pursuing recovery 

directly from the applicable plan,’’ we 

mean that the applicable plan would be 

the identified debtor, with a recovery 

demand letter issued to the applicable 

plan (or its agent or representative) 

requiring repayment. If or when an 

applicable plan receives a courtesy copy 

of a recovery demand letter issued to a 

beneficiary, this does not qualify as 

‘‘pursuing recovery directly from the 

applicable plan’’ and does not confer 

party status on the applicable plan. 

Making the applicable plan the sole 

party to the initial determination means 

that the applicable plan would also be 

the sole party to a redetermination or 

subsequent level of appeal with respect 

to that initial determination. We are also 

making a technical change in the section 

heading for § 405.906 (adding a comma 

before the phrase ‘‘and reviews’’). 

Comment: Several commenters 

requested that (1) either the applicable 

plan, or the beneficiary, or both be 

allowed to participate in any appeal 

where the identified debtor is either the 

applicable plan or the beneficiary; (2) 

any appeal consolidate the appeal 

process and appeal rights of the 

applicable plan and the beneficiary; (3) 

either the applicable plan or the 

beneficiary has the right to appeal at any 

point prior to resolution of the appeals 

process or full payment (whichever 

occurs first); or (4) appeal rights be 

given to any entity potentially liable for 

repayment. 

Response: We decline these requests. 

This final rule makes appeal rights 

available to the identified debtor, not 

potential identified debtors. An 

identified debtor and a potential 

identified debtor do not always have the 

same interests or present the same 

issues on appeal. For example, where a 

demand is issued, the identified debtor 

may elect to make payment in full and 

not appeal, in which case furnishing 

appeal rights to a potential debtor is 

unnecessary. 

If we issue a demand to an identified 

debtor and later determine that it is 

appropriate to pursue recovery of some 

or all of the conditional payments at 

issue from a different identified debtor, 

a new separate demand will be issued, 

with appeal rights appropriate to the 

identified debtor in the new recovery 

demand. 

Comment: A commenter requested 

that the provision making the applicable 

plan the sole party to a recovery 

pursued directly from the applicable 

plan be modified to state that the 

applicable plan is the sole party unless 

the applicable plan has previously made 

payment, in which circumstance any 

individual or entity which accepted 

payment would be a party to the initial 

determination and subsequent actions. 

Response: We decline this request. In 

accordance with section 

1862(b)(2)(B)(ii) of the Act and 42 CFR 

411.24 of the regulations, we have the 

right to pursue recovery from the 

beneficiary, the primary payer or any 

other entity receiving proceeds from the 

payment by the primary plan. We may 

recover from the applicable plan even if 

the applicable plan has already 

reimbursed the beneficiary or other 

party. 

Comment: Some commenters 

requested that CMS always pursue 

recovery from the individual or entity to 

whom/which the applicable plan has 

made payment (or, at minimum, pursue 


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10614 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

recovery from that individual or entity 

before pursuing recovery from the 

applicable plan). A commenter 

suggested that CMS should have to 

inform an applicable plan regarding 

whether recovery had been sought from 

the beneficiary first. 

Response: We decline these requests. 

The determination of who to pursue is 

our sole responsibility and, 

consequently, is not subject to appeal 

(see § 405.926(a)). We have the right to 

pursue recovery from the primary payer, 

the beneficiary, or any other entity 

receiving proceeds from the payment by 

the primary plan, and we may recover 

from the applicable plan even if the 

applicable plan has already reimbursed 

the beneficiary or other party. 

After review and consideration of all 

comments related to § 405.906, we are 

finalizing the changes to this section 

with the modifications to the crossreferences to § 405.924(b)(15) noted in 

section II.B.2. of this final rule. 

4. Use of an Attorney or Other 

Representative; Assignment of Appeal 

Rights 

We proposed adding paragraph (e)(4) 

to § 405.910, Appointed representatives, 

in order to provide applicable plans 

with the benefit of the existing rule for 

MSP regarding the duration of 

appointment for an appointed 

representative. We also proposed 

revising § 405.910(i)(4) to ensure that 

the special provision that beneficiaries 

as well as their representatives must 

receive notices or requests in an MSP 

case continues to apply only to 

beneficiaries. For all other parties, 

including an applicable plan, we 

continue to follow the regulatory 

provisions in § 405.910(i)(1) through (3). 

We did not propose any changes to 

§ 405.912 which addresses the 

assignment of appeal rights. 

Comment: Commenters requested that 

applicable plans be able to appoint third 

parties/agents as representatives in the 

appeal process. 

Response: Applicable plans have this 

ability under the existing provisions in 

§ 405.910. Section 405.910 does not 

limit who a party may appoint as a 

representative other than to state that 

‘‘[a] party may not name as an 

appointed representative, an individual 

who is disqualified, suspended or 

otherwise prohibited by law from acting 

as a representative in any proceedings 

before DHHS, or in entitlement appeals, 

before SSA.’’ 

Furthermore, we are specifying when 

a party appointing a representative must 

include the beneficiary’s Medicare 

health insurance claim number (HICN) 

on the appointment of representation. 

We believe that it is not necessary for 

non-beneficiary parties to include the 

HICN as part of a valid appointment 

because an applicable plan or other nonbeneficiary party seeking to appoint a 

representative under § 405.910 is not a 

beneficiary, and would thus not have a 

beneficiary HICN to provide on an 

appointment of representation. 

Accordingly, we are amending the 

existing § 405.910(c)(5) to state that an 

appointment of representation must 

identify the beneficiary’s HICN when 

the beneficiary (or someone, such as an 

authorized representative or 

representative payee, acting on behalf of 

a beneficiary) is the party appointing a 

representative. 

Comment: Some commenters 

requested that beneficiaries be able to 

assign their appeal rights to the 

applicable plan; other commenters 

requested that applicable plans be able 

to assign their appeal rights to the 

beneficiary. 

Response: We decline these requests. 

Both beneficiaries and applicable plans 

have the option of an agreement for 

representation when it is mutually 

agreed to. However, the assignment of 

appeal rights is controlled by section 

1869(b)(1)(C) of the Act which limits the 

assignment of appeal rights to 

assignment by a beneficiary to a 

provider/supplier with respect to an 

item or service furnished by the 

provider/supplier in question. 

After review and consideration of 

comments related to § 405.910, we are 

finalizing the changes to this section as 

proposed and with the specification to 

paragraph (c)(5) explained previously. 

5. Notice 

We proposed adding a new paragraph 

(c) to § 405.921, Notice of initial 

determination, to provide specific 

language regarding requirements for 

notice to an applicable plan. Proposed 

§ 405.921(c)(iv) states that in addition to 

other stated requirements in 

§ 405.921(c), the requisite notice must 

contain ‘‘any other requirements 

specified by CMS.’’ We also proposed to 

add § 405.947, Notice to the beneficiary 

of applicable plan’s request for a 

redetermination, to add language 

satisfying the requirement at section 

1862(b)(2)(B)(viii) of the Act that the 

beneficiary receive notice of the 

applicable plan’s intent to appeal where 

Medicare is pursuing recovery from the 

applicable plan. As the beneficiary 

would not be a party to the appeal at the 

redetermination level or subsequent 

levels of appeal, we believe that a single 

notice at the redetermination level 

satisfies the intent of this provision. We 

also proposed that the required notice 

be issued by a CMS contractor in order 

to ensure clarity and consistency in the 

wording of the notice. In addition to 

these changes, for consistency we 

proposed a number of technical and 

formatting changes. 

Comment: Several commenter stated 

that the requisite notice must contain 

‘‘any other requirements specified by 

CMS’’ in proposed § 405.921(c)(iv) is too 

broad and/or gives CMS too much 

authority. 

Response: We are finalizing 

§ 405.921(c) as proposed. The proposed 

language in § 405.921(c) is designed to 

set forth the minimum requirements for 

notice of an initial determination. 

Proposed § 405.921(c)(iv) simply 

provides flexibility for CMS to include 

additional information appropriate for 

the efficient operation of the appeals 

process; it does not eliminate any 

obligations set forth in proposed 

§ 405.921(c). Additionally, we note that 

the same language is a longstanding 

provision in § 405.921(a) and (b) as well 

as certain other sections within part 405 

subpart I regarding ‘‘notice.’’ 

Comment: Commenters presented a 

range of concerns regarding whether— 

(1) the applicable plan should be copied 

on a recovery demand with the 

beneficiary as the identified debtor; and 

(2) all potential debtors should be 

copied on all actions (that is, recovery 

demands, appeal requests, all notices or 

decisions). 

Response: Given that the proposed 

rule provides that the applicable plan 

will be the sole party to an initial 

determination if CMS pursues recovery 

directly from the applicable plan, we 

have determined that any notice beyond 

the notice we have proposed in 

§ 405.947 is unnecessary, would cause 

an increase in administrative costs and 

would cause confusion in many 

instances, particularly where 

beneficiaries would receive copies of 

demands issued to applicable plans. 

Comment: A commenter stated that 

the Notice of Initial Determination sent 

to an applicable plan must include 

specific statutory authority for 

determinations and notification of 

appeal rights. 

Response: It is our routine practice to 

include the basis for our recovery rights 

as well as information on applicable 

appeal rights in the recovery demand 

letter. Moreover, we believe that the 

commenter’s concerns are adequately 

addressed by proposed § 405.921(c)(i) 

and (iii) (which require the reason for 

the determination as well as information 

on appeal rights). 

Comment: A commenter requested 

that we apply the ‘‘mailbox rule’’ (also 

known as the ‘‘postal rule’’ or 


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‘‘deposited acceptance rule’’) regarding 

receipt of a document. 

Response: We decline this request. 

The appeals process set forth in part 405 

subpart I already has rules regarding 

receipt of documents for the purpose of 

determining the timeliness of an appeal 

request. See, for example, 

§ 405.942(a)(1) (date of receipt for an 

initial determination), § 405.962(a)(1) 

(date of receipt for a redetermination), 

and § 405.1002(a)(3) (date of receipt for 

a reconsideration). 

Comment: A commenter requested 

that language be added to beneficiary 

correspondence requiring beneficiaries 

to cooperate with the applicable plan 

and CMS’ contractor. 

Response: Because we are not 

involved in the interactions between a 

beneficiary and an applicable plan, we 

are not adding the requested language. 

Comment: A commenter was 

concerned that an applicable plan might 

lose its opportunity to appeal if the 

recovery demand to the applicable plan 

was addressed incorrectly. 

Response: Section 405.942, § 405.962, 

§ 405.1014, and § 405.1102 all contain 

provisions for extending the time for 

filing for a particular level of appeal 

upon establishing good cause. An 

applicable plan, as a party, is entitled to 

request an extension of the filing 

timeframe consistent with the 

previously referenced sections should 

there be good cause to extend such 

timeframes. 

Comment: A commenter requested 

that notice to the beneficiary of the 

applicable plan’s appeal explicitly state 

in plain language that the applicable 

plan’s appeal does not affect the 

beneficiary (that is, that the applicable 

plan is the sole party to the appeal). 

Response: We agree, however, the 

content of model notices is more 

appropriately included in our 

operational instructions for contractors. 

We will address this issue when we 

draft language for the notice CMS’ 

contractor will issue in accordance with 

§ 405.947. 

Comment: A commenter requested 

clarification regarding ‘‘notice’’ for 

purposes of the statute of limitations 

provision set forth in section 205 of the 

SMART Act. 

Response: This comment is outside 

the scope of this rule. 

After review and consideration of all 

comments regarding § 405.921 and 

§ 405.947, we are finalizing these 

provisions as proposed with one 

modification. We are revising 

§ 405.947(a) to read: ‘‘A CMS contractor 

must send notice of the applicable 

plan’s appeal to the beneficiary.’’ We are 

eliminating the reference to ‘‘the 

contractor adjudicating the 

redetermination request’’ issuing the 

notice in order to allow for operational 

efficiencies, where applicable. Section 

405.947(b) will continue to read: ‘‘(b) 

Issuance and content of the notice must 

comply with CMS instructions.’’ 

6. Appeal Processes/Determining the 

Identified Debtor 

Comment: Commenters requested we 

clarify that initial determinations 

(recovery demands) involving liability 

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

compensation benefits are made only 

after there is a settlement with a 

beneficiary. 

Response: Recovery demands are 

appropriate once primary payment 

responsibility has been demonstrated. 

Primary payment responsibility can be 

demonstrated based upon a settlement, 

judgment, award, or other payment. See 

section 1862(b)(2)(B)(ii) of the Act and 

42 CFR 411.22 of the regulations. 

Comment: A commenter indicated an 

understanding that issues of medical 

necessity, beneficiary eligibility, and 

payment would be decided 

simultaneously with issues of MSP 

recovery under the proposed rule. 

Response: The commenter’s 

understanding is incorrect because these 

issues arise at different points in time. 

Medicare has rules in place to permit 

conditional payment when a beneficiary 

has a pending liability insurance 

(including self-insurance), no-fault 

insurance, or workers’ compensation 

claim. Our claims processing 

contractors utilize normal claims 

processing considerations (including 

medical necessity rules) in processing 

such claims. MSP recovery claims come 

into play once we have information that 

primary payment responsibility has 

been demonstrated, which often occurs 

after items or services have been 

reimbursed by Medicare. 

Comment: A commenter stated that 

there should be a clear statement 

regarding the availability of judicial 

review for applicable plans and 

requested that such a statement be 

added in 42 CFR 405.904. 

Response: We believe that this 

clarification is unnecessary. Section 

405.904(b) already addresses 

nonbeneficiary appellants. Additionally, 

§ 405.1136 explains that judicial review 

is available as authorized by statute. 

(See sections 1869, 1876, and 1879(d) of 

the Act.) 

Comment: Several commenters 

requested that CMS consider an appeals 

process other than the process in part 

405 subpart I. Requests ranged from 

suggesting fewer levels of appeal, using 

a separate team of experts, to a separate 

docket and group of ALJs for MSP 

appeals. Multiple comments noted 

concern with the current backlog of 

claims-based appeals at the ALJ level of 

appeal. 

Response: We decline this request. 

The existing appeals process in 42 CFR 

part 405 subpart I addresses claimsbased Part A and Part B MSP and nonMSP appeals for beneficiaries, providers 

and suppliers, including appeals of prepay denials as well as overpayments. 

The proposed rule would give party 

status to a new party (the applicable 

plan) with respect to specific initial 

determinations. As the existing process 

at 42 CFR part 405 subpart I, is currently 

used for Part A and Part B MSP appeals 

by beneficiaries, we believe it is an 

appropriate process for resolving similar 

disputes with applicable plans. 

Comment: A commenter requested 

that CMS clarify how it determines 

who/which entity is the identified 

debtor and whether the identified 

debtor will generally be the beneficiary. 

Response: This question is outside the 

scope of this rule. (See, section 

1862(b)(2)(B)(ii) and (iii) of the Act as 

well as 42 CFR 411.24 of the regulations 

regarding who we may pursue for 

recovery.) 

Comment: Several commenters 

questioned whether: (1) CMS could 

pursue concurrent claims against the 

beneficiary and the applicable plan; (2) 

a claim against a beneficiary rendered a 

claim against the applicable plan moot 

(and vice versa); and (3) a demand to the 

beneficiary (or to the applicable plan) 

rendered a subsequent claim with 

respect to the same matter moot against 

the beneficiary (or the applicable plan, 

as appropriate). 

Response: These comments are 

outside the scope of this rule as they do 

not relate to the proposed appeal 

process. Please note that we will not 

recover twice for the same item or 

service. Appeal rights will be given to 

the beneficiary or applicable plan 

receiving the demand. 

Comment: Commenters stated that 

applicable plans should have access to 

beneficiary medical records, including 

an ability to unmask data on CMS’ web 

portal. 

Response: These comments are 

outside the scope of this rule as they are 

not related to the proposed appeal 

process. If we pursue recovery directly 

from the applicable plan, the applicable 

plan will be provided with all 

information related to the demand. 

7. Interest and Penalties 

Comment: Several commenters 

requested that penalties (such as civil 


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monetary penalties (CMPs)) and interest 

be tolled entirely during an appeal, 

during a good faith appeal, or for some 

set period of time during an appeal. 

Response: The statutory and 

regulatory provisions for interest and 

CMPs are outside the scope of this rule. 

However, we note that a debtor may 

eliminate the possibility of interest by 

submitting repayment within the 

timeframe specified in the demand 

letter. Such repayment does not 

eliminate existing appeal rights. 

8. Applicability of the Proposed Rule to 

Medicare Part C and Medicare Part D 

Comment: Some commenters 

requested that the proposed rule be 

revised to include appeal rights for 

applicable plans when a Medicare Part 

C organization or Part D plan pursues an 

MSP based recovery from the applicable 

plan. 

Response: This request is outside of 

the scope of this rule. The SMART Act 

provision for applicable plan appeals 

amended only the MSP provisions for 

Medicare Part A and Part B (section 

1862(b) of the Act). 

C. Other Proposals 

In this section of the final rule, we 

note the proposed rule included a 

provision for which we did not receive 

any public comment. We proposed to 

amend § 405.900, Basis and scope, by 

revising paragraph (a) to add section 

1862(b)(2)(B)(viii) of the Act as part of 

the statutory basis or Subpart I. Section 

1862(b)(2)(B)(viii) requires an appeals 

process for applicable plans when 

Medicare pursues recovery directly from 

the applicable plan. We received no 

comments on this proposal; and 

therefore, are finalizing this provision 

without modification. 

D. General and Other Comments 

This section of the final rule responds 

to public comments that are not specific 

to topics described in section II.B. of 

this final rule. 

Comment: A commenter stated that 

the amount in controversy requirement 

should be consistent with the dollar 

threshold provided for by the SMART 

Act in section 1862(b)(9) of the Act. 

Response: We do not accept this 

recommendation as the amount in 

controversy jurisdictional threshold for 

the appeals process is unrelated to the 

threshold set in section 1862(b)(9) of the 

Act. The section 1862(b)(9) of the Act 

threshold is a dollar threshold regarding 

the size of the settlement, where, in 

certain situations, MSP reporting and 

repayment is not required. The 

jurisdictional amount in controversy 

requirements for the appeals process are 

already set forth in § 405.1006 for ALJ 

hearings and judicial review. We see no 

basis for changing the existing 

thresholds at various levels of appeal 

based upon the addition of an 

applicable plan as the party for certain 

appeals. 

Comment: A commenter stated that 

the proposed rule was inconsistent with 

the SMART Act requirement for an 11- 

day web portal response timeframe for 

‘‘redeterminations and discrepancy 

resolution.’’ 

Response: The SMART Act provisions 

concerning a web portal are outside the 

scope of this rule. Moreover, the 

provisions concerning the web portal 

discrepancy resolution process (section 

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

specifically state that: (1) The provisions 

do not establish a right of appeal or set 

forth an appeal process; and (2) there 

shall be no administrative or judicial 

review of the Secretary’s determination 

under section 1862(b)(2)(B)(vii)(IV) of 

the Act. 

Comment: A commenter stated that 

the proposed rule should address 

appeals related to the determination of 

a proposed Workers’ Compensation 

Medicare Set-Aside Arrangement 

(WCMSA) amount for future medicals. 

Response: This issue is outside the 

scope of this rule. As stated in the 

preamble to the proposed rule, this 

issue will be addressed separately. 

III. Provisions of the Final Regulations 

This rule incorporates all of the 

provisions of the December 27, 2013 

proposed rule with the following 

exceptions: 

• In § 405.910(c)(5), we are revising 

the language to specify when an HICN 

is needed. 

• In § 405.924, finalizing the addition 

of proposed paragraph (b)(15) as 

paragraph (b)(16). As a result of this 

change, we are also making conforming 

changes to the cross-references to this 

paragraph in §§ 405.906(a)(4) and (c), 

405.921(c)(1), and 405.926(k). 

• In § 405.947(a), we are removing the 

reference to ‘‘the contractor adjudicating 

the redetermination request’’ issuing the 

notice in order to allow for operational 

efficiencies, where applicable. 

Therefore, paragraph (a) will read ‘‘A 

CMS contractor must send notice of the 

applicable plan’s appeal to the 

beneficiary.’’ 

• In § 405.980, we are making a 

grammatical change to the section 

heading to match the grammatical 

change made to the section heading of 

§ 405.906. 

IV. Collection of Information 

Requirements 

This document does not impose 

information collection requirements, 

that is, reporting, recordkeeping or 

third-party disclosure requirements. 

Consequently, there is no need for 

review by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 35). 

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 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 

rule on the economy and the Medicare 

program is not economically significant. 

The rule provides a formal 

administrative appeal process for MSP 

recovery claims where the applicable 

plan is the identified debtor, as opposed 

to the current process which requires a 

CMS contractor to consider any defense 

submitted by an applicable plan but 

does not provide formal administrative 

appeal rights. 

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 $7.5 million to $38.5 

million in any 1 year. Individuals and 

states are not included in the definition 

of a small entity. We have determined 

and we certify that this rule would not 

have a significant economic impact on 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 10617 

a substantial number of small entities 

because there is and will be no change 

in the administration of the MSP 

provisions. The changes would simply 

expand or formalize existing rights with 

respect to MSP recovery claims pursued 

directly from an applicable plan. 

Therefore, we are not preparing an 

analysis for the RFA. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis (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 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 rule would not 

have a significant effect on the 

operations of a substantial number of 

small rural hospitals because it would 

simply expand and/or formalize existing 

rights with respect to MSP recovery 

claims pursued directly from an 

applicable plan. 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 2014, that threshold is approximately 

$141 million. This rule has no 

consequential effect on State, local, or 

tribal governments or on the private 

sector because it would simply expand 

and/or formalize existing rights with 

respect to MSP recovery claims pursued 

directly from an applicable plan. 

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 reviewed by the Office of 

Management and Budget. 

List of Subjects in 42 CFR Part 405 

Administrative practice and 

procedure, Health facilities, Health 

professions, Kidney diseases, Medical 

devices, Medicare, Reporting and 

recordkeeping requirements, Rural 

areas, X-rays. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR part 

405 as set forth below: 

PART 405—FEDERAL HEALTH 

INSURANCE FOR THE AGED AND 

DISABLED 

■ 1. The authority citation for part 405 

continues to read as follows: 

Authority: Secs. 205(a), 1102, 1861, 

1862(a), 1869, 1871, 1874, 1881, 1886(k) of 

the Social Security Act (42 U.S.C. 405(a), 

1302, 1395x, 1395y(a), 1395ff, 1395hh, 

1395kk, 1395rr and 1395ww(k)), and sec. 353 

of the Public Health Service Act (42 U.S.C. 

263a). 

■ 2. Amend § 405.900 by revising 

paragraph (a) to read as follows: 

§ 405.900 Basis and scope. 

(a) Statutory basis. This subpart is 

based on the following provisions of the 

Act: 

(1) Section 1869(a) through (e) and (g) 

of the Act. 

(2) Section 1862(b)(2)(B)(viii) of the 

Act. 

* * * * * 

■ 3. Amend § 405.902 by adding the 

definition ‘‘Applicable plan’’ in 

alphabetical order to read as follows: 

§ 405.902 Definitions. 

* * * * * 

Applicable plan means liability 

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

compensation law or plan. 

* * * * * 

■ 4. Amend § 405.906 by: 

■ A. Revising the section heading. 

■ B. Adding new paragraph (a)(4). 

■ C. Amending paragraph (c) by adding 

a sentence at the end of the paragraph. 

The additions and revision read as 

follows: 

§ 405.906 Parties to the initial 

determinations, redeterminations, 

reconsiderations, hearings, and reviews. 

(a) * * * 

(4) An applicable plan for an initial 

determination under § 405.924(b)(16) 

where Medicare is pursuing recovery 

directly from the applicable plan. The 

applicable plan is the sole party to an 

initial determination under 

§ 405.924(b)(16) (that is, where 

Medicare is pursuing recovery directly 

from the applicable plan). 

* * * * * 

(c) * * *. This paragraph (c) does not 

apply to an initial determination with 

respect to an applicable plan under 

§ 405.924(b)(16). 

■ 4. Amend § 405.910 by: 

■ A. Revising paragraph (c)(5). 

■ B. Adding paragraph (e)(4). 

■ C. Revising paragraph (i)(4). 

The revisions and addition read as 

follows: 

§ 405.910 Appointed representatives. 

* * * * * 

(c) * * * 

(5) Identify the beneficiary’s Medicare 

health insurance claim number when 

the beneficiary is the party appointing a 

representative; 

* * * * * 

(e) * * * 

(4) For an initial determination of a 

Medicare Secondary Payer recovery 

claim, an appointment signed by an 

applicable plan which has party status 

in accordance with § 405.906(a)(1)(iv) is 

valid from the date that appointment is 

signed for the duration of any 

subsequent appeal, unless the 

appointment is specifically revoked. 

* * * * * 

(i) * * * 

(4) For initial determinations and 

appeals involving Medicare Secondary 

Payer recovery claims where the 

beneficiary is a party, the adjudicator 

sends notices and requests to both the 

beneficiary and the beneficiary’s 

representative, if the beneficiary has a 

representative. 

* * * * * 

■ 5. Amend § 405.921 by: 

■ A. In paragraph (a)(1), removing ‘‘;’’ 

and adding in its place ‘‘.’’ 

■ B. In paragraph (a)(2) introductory 

text, removing the phrase ‘‘must 

contain—’’ and adding in its place the 

phrase ‘‘must contain all of the 

following:’’ 

■ C. In paragraphs (a)(2)(i) and (a)(2)(ii), 

removing ‘‘;’’ and adding in its place ’’.’’ 

■ D. In paragraph (a)(2)(iii), removing ‘‘; 

and’’ and adding in its place ’’.’’ 

■ E. Redesignating the second and third 

sentences of paragraph (b)(1) as 

paragraphs (b)(1)(i) and (ii), 

respectively. 

■ F. In paragraph (b)(2) introductory 

text, removing the phrase ‘‘must 

contain:’’ and adding in its place the 

phrase ‘‘must contain all of the 

following:’’ 

■ G. In paragraphs (b)(2)(i) through 

(b)(2)(iv), removing ‘‘;’’ and add in its 

place ‘‘.’’ 

■ H. In paragraph (b)(2)(v), removing ‘‘; 

and’’ and add in its place ‘‘.’’ 

■ I. Adding paragraph (c) to read as 

follows: 

§ 405.921 Notice of initial determination. 

* * * * * 

(c) Notice of initial determination sent 

to an applicable plan—(1) Content of 


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10618 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

the notice. The notice of initial 

determination under § 405.924(b)(16) 

must contain all of the following: 

(i) The reasons for the determination. 

(ii) The procedures for obtaining 

additional information concerning the 

contractor’s determination, such as a 

specific provision of the policy, manual, 

law or regulation used in making the 

determination. 

(iii) Information on the right to a 

redetermination if the liability 

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

compensation law or plan is dissatisfied 

with the outcome of the initial 

determination and instructions on how 

to request a redetermination. 

(iv) Any other requirements specified 

by CMS. 

(2) [Reserved] 

■ 6. Amend § 405.924 by: 

■ A. In paragraph (b) introductory text, 

removing the phrase ‘‘with respect to:’’ 

and add in its place the phrase ‘‘with 

respect to any of the following:’’ 

■ B. In paragraph (b)(1) through (b)(11) 

removing ‘‘;’’ and adding in its place ‘‘.’’ 

■ D. In paragraph (b)(12) introductory 

text, removing the ‘‘:’’ and adding in its 

place ‘‘—’’. 

■ C. Adding paragraph (b)(16). 

The addition reads as follows: 

§ 405.924 Actions that are initial 

determinations. 

* * * * * 

(b) * * * 

(16) Under the Medicare Secondary 

Payer provisions of section 1862(b) of 

the Act that Medicare has a recovery 

claim if Medicare is pursuing recovery 

directly from an applicable plan. That 

is, there is an initial determination with 

respect to the amount and existence of 

the recovery claim. 

* * * * * 

■ 7. Amend § 405.926 by: 

■ A. In the introductory text, removing 

the phrase ‘‘not limited to –’’ and 

adding in its place the phrase ‘‘not 

limited to the following:’’ 

■ B. In the introductory text of 

paragraph (a), removing the phrase ‘‘for 

example –’’ and adding in its place the 

phrase ‘‘for example one of the 

following:’’ 

■ C. In paragraphs (a)(1) and (a)(2), 

removing ‘‘;’’ and adding in its place ‘‘.’’ 

■ D. Adding paragraph (a)(3). 

■ E. In paragraphs (b) through (j), 

removing ‘‘;’’ and adding in its place ‘‘.’’ 

■ F. Revising paragraph (k). 

■ G. In paragraphs (l) through (q), 

removing ‘‘;’’ and adding in its place ‘‘.’’ 

■ H. In paragraph (r), removing ‘‘; and’’ 

and adding in its place ‘‘.’’ 

The addition and revision read as 

follows: 

§ 405.926 Actions that are not initial 

determinations. 

* * * * * 

(a) * * * 

(3) Determination under the Medicare 

Secondary Payer provisions of section 

1862(b) of the Act of the debtor for a 

particular recovery claim. 

* * * * * 

(k) Except as specified in 

§ 405.924(b)(16), determinations under 

the Medicare Secondary Payer 

provisions of section 1862(b) of the Act 

that Medicare has a recovery against an 

entity that was or is required or 

responsible (directly, as an insurer or 

self-insurer; as a third party 

administrator; as an employer that 

sponsors, contributes to or facilitates a 

group health plan or a large group 

health plan; or otherwise) to make 

payment for services or items that were 

already reimbursed by the Medicare 

program. 

* * * * * 

■ 8. Add a new § 405.947 to read as 

follows: 

§ 405.947 Notice to the beneficiary of 

applicable plan’s request for a 

redetermination. 

(a) A CMS contractor must send 

notice of the applicable plan’s appeal to 

the beneficiary. 

(b) Issuance and content of the notice 

must comply with CMS instructions. 

■ 9. Amend § 405.980 by revising the 

section heading to read as follows: 

§ 405.980 Reopening of initial 

determinations, redeterminations, 

reconsiderations, hearings, and reviews. 

* * * * * 

Dated: November 20, 2014. 

Marilyn Tavenner, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: January 15, 2015. 

Sylvia M. Burwell, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2015–04143 Filed 2–26–15; 8:45 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 12 

[PS Docket Nos. 13–75 and 11–60; FCC 13– 

158] 

Improving 9–1–1 Reliability; Reliability 

and Continuity of Communications 

Networks, Including Broadband 

Technologies 

AGENCY: Federal Communications 

Commission. 

ACTION: Correcting amendment. 

SUMMARY: The Federal Communications 

Commission (Commission) published a 

document in the Federal Register at 79 

FR 3123, January 17, 2014 announcing 

the effective dates of rules requiring 911 

communications providers to take 

reasonable measures to provide reliable 

service, as evidenced by an annual 

certification. That document 

erroneously stated the date of an initial 

reliability certification for covered 911 

service providers. This document 

corrects the date of the initial 

certification. 

DATES: This correcting amendment is 

effective February 27, 2015. An initial 

certification will be due October 15, 

2015. 

FOR FURTHER INFORMATION CONTACT: Eric 

P. Schmidt, Attorney Advisor, Public 

Safety and Homeland Security Bureau, 

(202) 418–1214 or eric.schmidt@fcc.gov. 

SUPPLEMENTARY INFORMATION: The 

document published by the Commission 

in the Federal Register at 79 FR 3123, 

January 17, 2014, correctly noted that 47 

CFR 12.4(c) and (d)(1), which pertain to 

annual and initial certifications, contain 

information collection requirements that 

had not been approved by the Office of 

Management and Budget (OMB) and 

would not take effect until such 

approval was announced in the Federal 

Register. However, the document 

erroneously stated that an initial 

certification pursuant to 47 CFR 

12.4(d)(1) would be due ‘‘[o]ne year 

after February 18, 2014,’’ rather than 

one year after OMB approval of the 

associated information collection. In the 

Federal Register at 79 FR 61785, 

October 15, 2014, the Commission 

announced that OMB has approved the 

information collection for a period of 

three years and issued Control Number 

3060–1202. Accordingly, 47 CFR 

12.4(d)(1) became effective October 15, 

2014, and an initial certification will be 

due October 15, 2015. 

List of Subjects in 47 CFR Part 12 

Certification, Telecommunications. 

Accordingly, 47 CFR part 12 is 

corrected by making the following 

correcting amendments: 

PART 12—RESILIENCY, 

REDUNDANCY AND RELIABILITY OF 

COMMUNICATIONS 

■ 1. The authority citation for part 12 

continues to read as follows: 

Authority: Sections 1, 4(i), 4(j), 4(o), 5(c), 

218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 

621(b)(3), and 621(d) of the Communications 

Act of 1934, as amended, 47 U.S.C. 151, 


tkelley on DSK3SPTVN1PROD with RULES