Appeals of MSP Liability Determinations

40.24 – Appeals of MSP Liability Determinations (Rev. 12438; Issued: 01-04-24; Effective: 02-06-24; Implementation: 02-06-24) MSP liability determinations that may be appealed are listed at § 40.24. MSP Contractors are responsible for processing appeals of these determinations. When processing MSP determination appeals, the MSP Contractor generally follows the process set forth in the Medicare Claims Processing Manual (Chapter 29, Appeals of Claims Decisions). a) Requests for Appeal Any writing that the MSP Contractor receives indicating dissatisfaction with the initial determination constitutes a request for an appeal. Any language about a review, reexamination, investigation or the like is deemed an implied request for an appeal. (See for example 42 C.F.R. § 405.944). b) Combined Requests for Waiver and Appeal If a beneficiary objects to recovery of Medicare’s claim on the basis of hardship or inequity, the MSP Contractor treats the objection as a request for waiver, even if it is filed on a document normally used to request an appeal. If the beneficiary simultaneously requests an appeal of the overpayment (either the amount or its existence) AND requests waiver, the MSP Contractor processes the appeal request before processing the request for waiver. If the initial overpayment determination is affirmed, then the MSP Contractor proceeds with evaluation of the waiver request in accordance with the instructions found in § 50 of this Chapter. It issues the waiver determination. Where simultaneous waiver and appeal requests have been made, the MSP Contractor sends a brief letter acknowledging receipt of the requests. The acknowledgment letter informs the beneficiary that both requests will be processed together, although the correctness of the overpayment determination will be determined first. After a determination regarding both the overpayment and the waiver request have been made, the MSP Contractor sends one letter notifying the beneficiary of the determination(s). c) NGHP Insurer Appeal Effective for recovery demand letters issued on or after April 28, 2015, for demands issued to the applicable plan as the identified debtor, only the applicable plan is a party with reopening or appeal rights. If the applicable plan files an appeal, the MSP Contractor is required by regulation to provide notice to the beneficiary, but the beneficiary has no further involvement with the appeal. See 42 C.F.R. § 405.947. d) Steps in Deciding an Appeal A person other than the one who made the initial determination must decide an appeal. The objective is to make a determination as to whether the initial determination was correct. As part of the appeal determination, staff may need to conduct medical review of the services in question. Therefore, it is important to obtain all related documentation (i.e., emergency room reports, admission history, physician orders, nursing notes, and discharge summary) in order to make an informed evaluation. e) Other steps that should be followed: i. Check all mathematical computations for accuracy; ii. Determine whether any new evidence has been produced since the time the initial determination was made; if so, that information must be considered; iii. If the beneficiary is appealing a denial of a waiver request, use the criteria found in § 50 of this Chapter to determine whether the initial determination is correct; iv. Once the determination has been made, send the debtor and authorized parties the letter. The MSP Contractor’s letter must include a clear rationale for its determination; and v. The determination contains notification of the second appeal right. This appeal right automatically comes into effect when the debtor is dissatisfied with the reconsideration, or review determination and makes a written request for such an appeal. See the Medicare Claims Processing Manual (Chapter 29, Appeals of Claims Decisions), for the next level of appeal and the time limits for filing for the various levels of appeal.