[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]
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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.
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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.
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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
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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