Penalty Considered

10.3 - Penalty Considered (Rev. 739, Issued: 11-01-05, Effective: 07-24-03, Implementation: 01-19-06) In the context of this section, the term “penalty” is to be broadly construed to include, but not necessarily limited to, a civil money penalty, an assessment, a sanction, a suspension, a termination, or other, similar “penalty”. Examples of matters that are illustrative of a penalty under this section include but are not necessarily limited to: specified remedies under §1819(h)(2)(B),), a sanction under §1833(h)(5)(D), a penalty under §1834(j)(2)(A)(iii), sanctions under §1842(j)(2), §1842(k) or §1842(n)(3), intermediate sanctions under §1846, sanctions under §1848(g)(1)(B), and actions under §1866(b)(2), §1866(d) or §1866(i). The 10% penalty for filing a “stale” assigned claim, although also illustrative of a penalty under this section, is also subject to the broader conditions for waiver under §1848(g)(4)(B) of the Act. See Pub. 100-04, Medicare Claims Processing Manual, Chapter 1, §70.8.8 et seq. Although the erroneous-guidance-based penalty waiver of §903(c) applies to all penalties that may be imposed by CMS, this section applies only to those penalties for which implementation has been or may hereafter be delegated to one or more Medicare contractors. Moreover, the foregoing identification of penalties, which are illustrative of §903(c) penalties, does not constitute a delegation to contractors to impose such penalties. Any such delegation would be made in provisions relating to the policies and procedures specific to such penalties or in other program issuances. Accordingly, whether a contractor may grant a penalty waiver in a particular matter will depend, in part, on whether the contractor has been delegated the authority to impose the penalty itself (whether as a standing matter or under a specific, ad hoc delegation on a particular matter or in a particular circumstance). The term “penalty” is not to be construed so broadly that the application of the penalty waiver would forgive or render moot a Medicare program policy or procedural requirement. Matters that are not penalties under this section include but are not necessarily limited to the following types of actions: a rejection or a “return-to-provider” action (RTP) on a claim or bill, an initial determination on a claim or bill, a redetermination or reconsideration of such initial determination, a contractor hearing decision regarding such initial determination, a national coverage decision (NCD), a local coverage decision (LCD), a determination made pursuant to a local medical review policy (LMRP), a coding decision, an enrollment decision by a contractor (including the National Supplier Clearinghouse), a notice of program reimbursement (NPR), an overpayment, accrued interest on an unsatisfied overpayment, a CMS Ruling, the Medicare allowed amount or the Medicare payment for a covered item or service, a determination regarding whether a matter is within the scope of this section, or other, similar customary Medicare fee-for- service program determinations that are not intended to “penalize” a particular provider or supplier for its acts or omissions. NOTE: Although the foregoing types of actions are not penalties within the scope of this Section, if an erroneous guidance has been issued on such a matter, corrective action may be available under an authority other than this section.