Initial Determinations

40.22 – Initial Determinations (Rev. 12438; Issued: 01-04-24; Effective: 02-06-24; Implementation: 02-06-24) Initial determinations generate appeal rights. There are three types of initial determinations made within the context of the MSP program that generate appeal rights. The beneficiary may appeal: a) The existence of the overpayment; b) The amount of the overpayment; and c) A waiver request under 1870(c) of the Act that receives a less than fully favorable CMS decision. Effective for recovery demand letters issued on or after April 28, 2015, the rules do not change for GHP- based recovery demand letters. The rules do change for recovery demand letters issued to “applicable plans”, that is, to liability insurance (including self-insurance), no-fault insurance, or workers’ compensation entities as the identified debtor. Recovery demand letters issued to these entities on or after April 28, 2015, are “initial determinations” and are subject to the regulations in 42 C.F.R. § 405.900 et seq. Applicable plans may appeal only the existence of the overpayment and the amount of the overpayment identified in the initial determination. Applicable plans may not appeal their identity as a debtor or a responsible reporting entity. Furthermore, § 1870 waiver of recovery is not applicable to demands issued to applicable plans. Consequently, § 1870 waiver of recovery language shall not be included in demands issued to the applicable plan as the identified debtor. Negotiation of a compromise or suspension or termination of collection action under FCCA by CMS is not an initial determination and, therefore, generates no appeal rights. (See 42 C.F.R. § 405.926(h)). A waiver granted under Section 1862(b) of the Act also generates no appeal rights.