National Insurance Organizations “Urge” CMS to Rescind SMART Rules

CMS, Commentary, Medicare Set-Aside Blog on November 21, 2013 | Posted by Jennifer Jordan, JD, MSCC

This week, both RIMS and the UWC have taken the position that the Interim Final Rule created by CMS contradicts express SMART Act mandates and should be reissued through the regular rule-making process. Since the legislation passed last January, CMS has blatantly disregard its contents. Rules were to be published in the Federal Register within 60 days of enactment and subject to public comment and instead, we have only a portion of the statutory mandated regs long after the deadline set by Congress with no public comment period. November 15th has passed and we do not know what the 2014 MSP exclusion amount will be. Rules haven’t even been proposed for reporting penalties and the rules we did get for express conditional payment determinations contradicts the statute. Where Congress provided a 120 window to resolve claims, within which CMS was given a 65 day opportunity to clean up its records before it was forced to live with only known billing, CMS added both periods together and made it a 185 day window with several exceptions. In general, simply more of what we have come to expect from CMS with regard to its MSP efforts.

In RIMS’ letter to Marilyn Tavenner as DHHS, President John Phelps urged CMS to rescind the IFR and reissue regs through traditional means. In the UWC letter, Doug Holmes objected to the timing issue, the new exceptions and the unappealable nature of the web portal determinations. Both organization’s objections are valid legal challenges and we applaud them for taking a position.

Publication of the required reporting rules are currently still caught up in EO12866 review, as are proposed rules for future medical allocations. Both were expected in September and there is no word on when they may be released or if they may carry a proper public comment period or not. As evidenced by these web portal rules, the industry would be wise to play close attention to whatever is published as they too will likely prove to disappoint.