On December 27, 2013, CMS issued a Notice of Proposed Rule Making relating to circumstances where “applicable plans” (liability insurance, no-fault insurance, and workers’ compensation law or plans) can appeal recoveries which are sought by Medicare under the MSP directly against applicable plans. Organizations or individuals seeking to have commentary considered should provide their recommendations via one of the approved delivery methods as specified in the NPRM no later than 5 pm on February 25, 2014.

The appeals process proposed within this NPRM will strictly be for “applicable plans” as Medicare beneficiaries currently have existing appeal rights where the beneficiary is listed as the debtor. Because there is currently no appeals process for applicable plans in a similar situation, and the SMART Act called upon CMS to create an appeals process for applicable plans, this NPRM has been issued in the efforts to give applicable plans the same rights to appeal as a beneficiary currently has available.

As it relates to the SMART Act, Section 201 specifically requires Medicare to promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal a statement of reimbursement amount. Therefore, this NPRM has been issued to comply with the aforementioned requirement of the SMART Act.

While CMS has noted that the industry has expressed interest in an appeal process for determinations regarding Workers’ Compensation Medicare Set Asides (WCMSAs), this NPRM does not address this issue (CMS noted that it will be addressed separately).