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The Medicare Secondary Payer (MSP) program is designed to reduce costs to the Medicare program by requiring other insurers of health care for beneficiaries to pay primary to Medicare. It applies in three situations: where there is liability insurance, e.g. for an accident; where there is workers compensation coverage, e.g., for a job related injury; and where there is an employer’s large group health plan (EGHP).

In the Federal Register for September 20, 2013, the Centers for Medicare & Medicaid (CMS) the Medicare agency, announced an interim final rule with a comment period.[1]  The rule sets out CMS' process and timeline for expanding its existing MSP Web portal for the collection of data on MSP conditional payment amounts and claims detail.[2]  Comments on the interim final rule are due no later than 5 p.m. on November 19, 2013, the effective date of the interim final regulation.[3]  Systems and final process changes to provide final conditional payment summary forms and amounts via the web portal will be implemented no later than January 1, 2016.[4]


The expansion of the web portal is required by §201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).[5] The SMART Act amends §1862(b)(2)(B) of the Social Security Act (the Act) which requires the establishment of an Internet Web site (Web Portal) "through which beneficiaries, their attorneys or other representatives, and authorized applicable plans (as defined in §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."[6]  The detailed claims data includes dates of service, provider information, total charges, conditional payment amounts, and diagnosis codes.[7]

The expanded capacity development for obtaining conditional payment information will include a multifactor authentication solution, as announced in the interim final regulations.  These changes are part of CMS' process of developing security solutions to permit authorized users other than the beneficiary to access the beneficiary's personal health information over the internet.  According to CMS, the 'multifactor authentication' uses a combination of two or more different methods to authenticate a user's identity.  Once completed, an authorized attorney, or an authorized applicable plan, will be able to view claims specific data such as diagnosis codes, provider names, and dates of service via the web portal.

The additional functionality and security features relate to (a) informing CMS when a specified case is approaching settlement, (b) downloading or otherwise obtaining time and date stamped final conditional payment summary forms and amounts before reaching settlement, and (c) ensuring that relatedness disputes (whether a particular Medicare payment for a service, item, or procedure is related to the accident or injury that is the subject of the settlement or judgment at issue) and any other discrepancies within 11 business days of receipt of the dispute documentation.[8] The SMART Act makes clear that the discrepancy resolution process is not an appeals process.[9]

With respect to a pending settlement, 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. With respect to future medical items and services, the interim final regulations provide that "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 amount."[10]

Within 30 days of securing a settlement, the beneficiary or his or her attorney or other representative must submit information specified by the settlement.  CMS says that the settlement information will be the same information that the Medicare agency typically collects to calculate its final demand amount.  The information includes the date of the settlement, the total settlement amount, the attorney fee amount or percentage, and additional costs borne by the beneficiary to obtain his or her settlement.[11]  If the beneficiary does not submit the settlement information within the 30 day period above, the final conditional payment amount obtained through the web portal will expire.[12]  The web portal will also have the capacity for beneficiaries to request a "claims refresh." That refresh will be initiated no later than 5 business days after the electronic request is initiated.


The use of the web portal for the collection and receipt of information about Medicare's conditional payments holds promise for efficiency and speed in resolution of claims.  As with any new system, there will likely to be implementation problems along the way.  Where such problems include disputes over what Medicare is owed, it is important that advocates and beneficiaries remain mindful of Medicare's appeals process.

[1] See 78 Fed. Reg. 57800-57806 (Friday, September 20, 2013).  The electronic version is available at Regulations implementing SMART Act provisions amend 42 C.F.R., Part 411 by adding §411.39 (Automobile and liability insurance (including self-insurance), no fault insurance, and workers' compensation: Final conditional payment amounts via Web portal).
[2] See 78 Fed. Reg. 57800.  The Federal Register announcement contains a helpful flow chart for understanding the workings of the process and timelines for submitting claims data, obtaining claims data information, disputing claims data, etc. See 78 Fed. Reg. 57800, at p. 57803.
[3] Ibid.
[4] Ibid.
[5] The SMART Act, Pub. Law 112-242, H.R. 1845, was signed into law on January 10, 2013.  See also the Center's Alert (February 13, 2013) on the SMART Act at:
[6] Ibid. The Medicare Secondary Payer (MSP) is set out in 42 U.S.C. §1395y(b)(2).
[7] See 78 Fed. Reg. 57800.
[8] The 11 day resolution standard is set out in the SMART Act at §1862(b)(2)(B)(vii)(IV).  With respect to disputes about a claim, the beneficiary may dispute a claim only once.  Even so, CMS will devise mechanisms for beneficiaries and their representatives to submit additional documentation in a form and manner specified by the Secretary in support of an assertion that a particular claim is not related to the settlement.
[9] The process for resolving discrepancies is not an appeals process and does not afford administrative or judicial review.  See §1862(b)(2)(B)(vii)(IV). The interim final regulations note, however, that beneficiaries retain appeal rights with respect to CMS' MSP recovery determination, under 42 C.F.R. part 405, subpart I (§405.900 et seq.), after CMS issues a final demand.  These rights are explained in CMS' MSP final demand letter.
[10] See 42 C.F.R. §411.39(d), 78 Fed. Reg. 57800, at p. 57806.
[11] See 78 Fed. Reg. 57800, at p. 57802.
[12] CMS notes that the 30 day time period may be challenging for some beneficiaries.  It expects to build into the web portal the capacity for settlement information to be entered directly through the web portal and/or uploaded directly through the web portal. See 78 Fed. Reg. 57800, at p. 57802.


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