The Centers for Medicare and Medicaid Services (CMS) has released a Non-Group Health Plan (NGHP) Applicable Appeals Reference Guide (Version 1.0, April 27, 2023). The guide indicates that it is intended to provide non-group health plans and their authorized representatives with a summary of requirements and guidance to be used when submitting appeals of Medicare Secondary Payer (MSP) recovery claims in situations where Medicare is seeking recovery against the insurer.
Of note, CMS previously published a copy of a March 2022 presentation entitled the “Commercial Repayment Center (CRC) Non-Group Health Plan (NGHP) Applicable Plan Appeal Guide” which contains much of the same information as this guide. That presentation can be found here. This newly released reference guide appears to expand on the prior presentation.
The following provides a general, non-exhaustive, overview of key points addressed in the NGHP Applicable Plan Appeals Reference Guide as follows:
Primary Payer Appeals Process
The guide reminds readers that the NGHP appeals process for demands issued by CMS to primary payers after April 28, 2015 must follow the formal administrative appeals process outlined in the regulations starting at 42 C.F.R. § 405.900. The formal administrative appeals process to appeal an initial determination contains the following levels: (1) Redetermination; (2) Reconsideration; (3) Administrative Law Judge (ALJ) Hearing; (5) Medicare Appeals Council Review; and (5) Judicial Review in U.S. District Court.
While a full review of the administrative appeals process is beyond the scope of this article, the reference guide does reiterate that entities seeking review under the administrative appeals process must exhaust their appeal rights at each level prior to proceeding to the next level of appeal and must ensure they are following all timeframes and requirements at each level of appeal.
The remainder of the reference guide focuses on the following aspect of the “redetermination” component of the Medicare appeals process:
Basic Appeal Submission Requirements
The reference guide notes that redetermination requests can be submitted to Medicare via the Medicare Secondary Payer Recovery Portal (MSPRP), mail, or fax and should include a cover letter and any relevant supporting documentation. If the appeal is being submitted by a party other than the applicable plan, the reference guide indicates an appropriate authorization, called a Letter of Authority (LOA), should be submitted and the guide outlines the requirements for an LOA to be accepted.
Further, the reference guide indicates that the following basic information must be included in an appeal:
- The name of the applicable plan and authorized representative (if applicable),
- The name of the Medicare beneficiary,
- The Medicare beneficiary’s Medicare number (Health Insurance Claim Number (HICN) or Medicare Beneficiary Identifier (MBI)),
- The Medicare case number,
- The date of incident,
- A summary of injuries from the incident and which specific services or items for which an appeal is being requested,
- The specific dates of service being appealed, and
- An explanation of why the prior Medicare determination is incorrect.
Appeal types and required supporting documentation
The reference guide also lists common appeal types filed by applicable plans and the supporting documentation that is required to obtain a favorable outcome of an appeal for each of those reasons. The listed appeal types are:
- Termination of Ongoing Responsibility for Medicals (ORM) Due to Benefits Exhaustion
- Termination of ORM Due to Settlement or Other Claim Resolution
- Termination of ORM Due to Other Policy Terms
- Benefits Denied or Revoked by the Applicable Plan
- Non-Covered Services
- Unrelated Services
- Duplicate Primary Payment
For each appeal type, the reference guide includes the specific documentation that is required to support a favorable appeal outcome.
Importance of Section 111 Reporting Information
From another angle, it is noted that there are several references throughout the guide regarding the importance of accurate Section 111 reporting information. Specifically, the reference guide notes that insurers are required by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (MMSEA) of 2007 to ensure that the information reported to Medicare is accurate and up to date. To that end, the reference guide notes that Medicare’s Commercial Repayment Center (CRC) proceeds with the conditional payment recovery process under the expectation that the reported records are accurate.
Additionally, the reference guide notes in several circumstances that additional supporting documentation is required if an appeal contradicts or is not supported by the insurer’s Section 111 reporting. For instance, in situations involving appeals surrounding exhausted benefits and no-fault insurance policy limits, the reference guide notes that additional documentation is required if the appeal is not supported by the Section 111 reported information. 
In the bigger picture, these sections of the reference guide underscore both the link between Section 111 reporting and the conditional payment recovery process and the importance of accurate and up to date Section 111 reporting.
Given the volume of Medicare conditional payment demands issued by the CRC, it is critical that insurers and their authorized representatives understand CMS’s administrative appeals process. As noted in the reference guide, there are specific requirements, including deadlines, at every level of the CMS appeals process and CMS’s contractors generally adhere strongly to these requirements.
Similarly, it is crucial that appeals contain any required information and supporting documentation to support a favorable outcome and avoid unnecessary steps in the appeals process. Lastly, given CMS’s strong reliance on data reported via Section 111, it is important to review Section 111 reporting to ensure the data is up to date and accurate.
Please do not hesitate to contact the author if you have any questions regarding this reference guide or the CMS administrative appeals process.
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 NGHP Applicable Appeals Reference Guide (Version 1.0, April 27, 2023), Section 1.0.
 Id. at Section 2.0.
 See, NGHP Applicable Appeals Reference Guide (Version 1.0, April 27, 2023), Section 2.0.
 NGHP Applicable Appeals Reference Guide (Version 1.0, April 27, 2023), Section 2.0.
 Id. at Section 2.1.
 Id. at Section 2.3.
 Id. at Section 2.2.
 Id. at Section 3.1.
 See, NGHP Applicable Appeals Reference Guide (Version 1.0, April 27, 2023), Section 2.1.
 NGHP Applicable Appeals Reference Guide (Version 1.0, April 27, 2023), Section 2.1.
 Id at Section 3.1.1.
 Id. at Section 3.1.1.