[Federal Register Volume 78, Number 238 (Wednesday, December 11, 2013)]
[Proposed Rules]
[Pages 75304-75306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29473]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 411

[CMS-6061-ANPRM]
RIN 0938-AR88


Medicare Program; Medicare Secondary Payer and Certain Civil 
Money Penalties

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This advance notice of proposed rulemaking (ANPRM) solicits 
public comment on specific practices for which civil money penalties 
(CMPs) may or may not be imposed for failure to comply with Medicare 
Secondary Payer reporting requirements for certain group health and 
non-group health plans arrangements.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on February 10, 
2014.

ADDRESSES: In commenting, please refer to file code CMS-6061-ANPRM. 
Because of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed).
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions under 
the ``More Search Options'' tab.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-6061-ANPRM, P.O. Box 8013, 
Baltimore, MD 21244-8013. Please allow sufficient time for mailed 
comments to be received before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-6061-ANPRM, 
Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. If you prefer, you may deliver (by hand or 
courier) your written comments before the close of the comment period 
to either of the following addresses:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 
20201. (Because access to the interior of the Hubert H. Humphrey 
Building is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850. If you intend to deliver your 
comments to the Baltimore address, please call telephone number (410) 
786-9994 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.

[[Page 75305]]

    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

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://www.regulations.gov/. Comments received timely will be 
also available for public inspection as they are received, generally 
beginning approximately 3 weeks after publication of a document, at the 
headquarters of the Centers for Medicare & Medicaid Services, 7500 
Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of 
each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view 
public comments, please phone 1-800-743-3951.

I. Background

A. Imposition of Civil Money Penalties (CMPs)

    In 1981, the Congress added section 1128A to the Social Security 
Act (the Act) (section 2105 of Pub. L. 97-35) to authorize the 
Secretary of Health and Human Services (Secretary) to impose civil 
money penalties (CMPs) and assessments on certain health care 
facilities, health care practitioners, and other suppliers for 
noncompliance with rules of the Medicare and Medicaid programs. CMPs 
and assessments provide an alternative enforcement tool for agencies 
use to ensure compliance with statutory and regulatory requirements and 
are in addition to potential criminal or civil penalties.
    Since 1981, the Congress has significantly increased both the 
number and the types of circumstances under which the Secretary may 
impose CMPs. Some CMP authorities address fraud, misrepresentation, or 
falsification, while others address noncompliance with programmatic or 
regulatory requirements. The Secretary has delegated the authority for 
certain provisions to either the Office of Inspector General (OIG) or 
CMS (See the October 20, 1994 (58 FR 52967) notice titled ``Office of 
Inspector General; Health Care Financing Administration; Statement of 
Organization, Functions, and Delegations of Authority'').

B. Section 111 of the MMSEA Amendments to MSP Provisions

    Under the Medicare law, as enacted in 1965, Medicare was the 
primary payer for certain designated health care services except those 
covered by workers' compensation. In 1980, Congress added section 
1862(b) of the Act which defined when Medicare is the secondary payer 
to certain primary plans. These provisions are known as the Medicare 
Secondary Payer (MSP) provisions. Section 1862(b) of the Act prohibits 
Medicare from making payment if payment has been made or can reasonably 
be expected to be made by the following primary plans when certain 
conditions are satisfied: Group health plans; workers' compensation 
plans; liability insurance (including self-insurance); or no-fault 
insurance. For workers' compensation, liability insurance (including 
self-insurance), or no-fault insurance for which payment has not been 
made or cannot be expected to be made promptly, Medicare may make a 
conditional payment subject to Medicare payment rules. Any conditional 
payments made by Medicare are subject to repayment once the primary 
plan makes payment.
    Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 
2007 (MMSEA) (Pub. L. 110-173) added paragraphs (7) and (8) to section 
1862(b) of the Act which established new mandatory reporting 
requirements for certain group health plan (GHP) arrangements and for 
liability insurance (including self-insurance), no-fault insurance, and 
workers' compensation (collectively referred to as ``non-GHP'' or NGHP) 
arrangements.
    Section 1862(b)(7) of the Act (42 U.S.C. 1395y(b)(7)) added new 
reporting rules for GHP, but did not eliminate any existing statutory 
provisions or regulations. Section 1862(b)(7) of the Act also includes, 
in part, authority for Medicare to impose CMPs against GHPs responsible 
reporting entities which are determined to be noncompliant. An entity 
serving as an insurer or third party administrator for a GHP, and, in 
the case of a GHP that is self-insured and self-administered, a plan 
administrator or fiduciary, must report under these requirements. 
Section 1862(b)(7) of the Act provides that, notwithstanding any other 
provision of law, the reporting requirement may be implemented by 
program instruction or otherwise.
    Section 1862(b)(8) of the Act (42 U.S.C. 1395y(b)(8)) added new 
reporting rules for NGHP arrangements (applicable plans), but did not 
eliminate any existing statutory provisions or regulations. Section 
1862(b)(8) of the Act also includes, in part, authority for CMS to 
impose CMPs against NGHPs which are determined to be noncompliant. 
Section 1862(b)(8) of the Act defines the term ``applicable plan'' to 
mean 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; 
and (3) workers' compensation laws or plans. Section 1862(b)(8) of the 
Act also requires applicable plans to notify CMS when they pay 
liability insurance (including self-insurance), no-fault insurance, 
and/or workers' compensation claims on behalf of Medicare 
beneficiaries. Information shall be submitted within a time specified 
by the Secretary after the claim is addressed or resolved (or partially 
addressed or resolved) through a settlement, judgment, award, or other 
payment, regardless of whether or not there is a determination or 
admission of liability.

C. Medicare IVIG (Intravenous Immunoglobulin) Access and Strengthening 
Medicare and Repaying Taxpayers Act of 2012

    Section 1862(b)(8)(E) of the Act describes the enforcement 
provisions for NGHPs that fail to comply with the reporting 
requirements. On January 10, 2013, the Medicare IVIG (Intravenous 
Immunoglobulin) Access and Strengthening Medicare and Repaying 
Taxpayers Act of 2012 (SMART Act) was enacted (Pub. L. 112-242). The 
SMART Act amended section 1862(b)(8)(E) of the Act to state that 
applicable plans that fail to comply with the reporting requirements 
may be subject to a civil money penalty of up to $1,000 for each day of 
noncompliance with respect to each claimant (revising the prior 
mandatory nature of this CMPS provision). Section 1862(b)(8)(E) of the 
Act only applies to NGHPs.

II. Provisions of the Advanced Notice of Proposed Rulemaking

    We are issuing this ANPRM to solicit public comments and proposals 
for the specification of practices for which CMPs would or would not be 
imposed in accordance with sections 1862(b)(7)(B) and (b)(8)(E) of the 
Act (42 U.S.C. 1395y(b)(7)(B) and (8)(E)). We are interested in 
comments and proposals to specifically define ``noncompliance'' in the 
context of the phrase, ``. . . for each day of noncompliance with 
respect to each claimant . . .'' in sections 1862(b)(7) or (b)(8) of 
the Act. We are seeking public comment and proposals on mechanisms and 
criteria that we

[[Page 75306]]

would employ to evaluate whether and when the agency would impose CMPs.
    In addition, we are we are soliciting comments and proposals for 
methods to determine the dollar amount of a CMP that would be levied 
for each day that NGHP is a responsible reporting entity noncompliance 
under section 1862(b)(8) of the Act.
    We are also soliciting comments on how we might devise a method(s) 
and criteria to determine which actions would constitute ``good faith 
effort(s)'' taken by an entity to identify a Medicare beneficiary for 
the purposes of reporting under section 1862(b)(8) of the Act.
    We are specifically soliciting comments and proposals from 
insurers, third party administrators for GHPs, other applicable plans, 
and the public. When submitting comments regarding this issue, we ask 
that commenters specifically identify to which provision their comments 
relate (that is, section 1862(b)(7) or (b)(8) of the Act).

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)


    Dated: May 28, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: July 30, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.

    Editorial Note: This document was received in the Office of the 
Federal Register on December 5, 2013.

[FR Doc. 2013-29473 Filed 12-10-13; 8:45 am]
BILLING CODE 4120-01-P