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[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Rules and Regulations]
[Pages 57800-57806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22934]

[[Page 57800]]

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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.

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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), no-fault 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

[[Page 57801]]

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 pre-register 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 pre-register 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-Data-and-Systems/CMS-Information-Technology/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-Statistics-Data-and-Systems/CMS-Information-Technology/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

[[Page 57802]]

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), no-fault 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

[[Page 57803]]

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
[GRAPHIC] [TIFF OMITTED] TR20SE13.006

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-and-
comment 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

[[Page 57804]]

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 notice-and-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

0
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).

0
2. Subpart B is amended by adding Sec.  411.39 to read as follows:

Sec.  411.39  Automobile and liability insurance (including self-
insurance), no-fault 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 self-insurance).
    (2) No fault insurance.
    (3) Workers' compensation laws or plans.

[[Page 57805]]

    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), no-fault 
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

[[Page 57806]]

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 Sec.  411.37 and issues a 
final MSP recovery demand letter.
    (2) If the underlying liability insurance (including self-
insurance), no-fault 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 
Sec.  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
```