INTERIM RULE IMPLEMENTING ASPECTS OF THE SMART ACT PUBLISHED

CMS recently issued an "Interim final rule with comment period" regarding the ongoing implementation of the SMART Act. This rule will become effective November 19, 2013, and does not create any substantive changes to the Act but does provide more details regarding access to conditional payment information for individuals other than the Medicare beneficiary, and reiterates the obligation to modify the MSP web portal. Public comments on this rule are welcomed and due before 5 p.m. on November 19, 2013, but a notice-and-comment rulemaking procedure is waived with CMS's finding that it is unnecessary and in the public interest to do so. Note that comments made will be available for public inspection at http://regulations.gov.

The current system allows Medicare beneficiaries to access details regarding conditional payment claims on MyMedicare.gov, but third parties who are not authorized by the Medicare beneficiary cannot access any of this information. Even those third parties who are authorized by beneficiaries can find only limited information via MSP's current website.

To enable third parties to access this information, the interim rule proposes an implementation of a 'multifactor authentication.' This will allow an applicable plan (and the beneficiary's representative) access to claim-specific data without the beneficiary's express consent, via an improved web portal.

CMS' plan is to develop this multifactor authentication within 90 days of November 19th and to implement this process no later than January 1, 2016. In theory, this will allow the beneficiary's representative and applicable plans (that have appropriately registered) to access the improved web portal's details and, ultimately, a copy of the formal demand. The website will implement further revisions to allow Medicare beneficiaries and their agents to dispute unrelated claims, update Medicare's statement, obtain time and date stamped information before mediation, and to notify Medicare's contractor of a settlement's terms. This interim rule does not address an applicable plan's right of appeal and appeal process regarding conditional payments; apparently, the rules implementing this aspect of the SMART Act are still forthcoming.

The official version of this interim rule, and the address for submitting comments, can be found at http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/pdf/2013-22934.pdf. We look forward to additional implementation details of the SMART Act and, particularly, the regulations governing an applicable plan's right of appeal and appeal process. Once available, we will provide an immediate and thorough update.