PROPOSED REGULATIONS FOR REDUCED MEDICARE CLAIMS SUBMISSION PERIOD

In the June 14, 2010, issue of Hall Render's Health Law News we reported on a provision of the Patient Protection and Affordable Care Act ("ACA") requiring all Medicare Part A and B claims to be filed within one (1) calendar year from the date of service, effective March 23, 2010, and applying to all services provided on or after January 1, 2010.  On July 13, 2010, the Centers for Medicare & Medicaid Services ("CMS") published the CY 2011 Proposed Medicare Physician Fee Schedule Rule which includes proposed amendments to 42 C.F.R. § 424.44 (Time Limits for Filing Claims) to effectuate the changes made by the ACA.  In addition to providing for consistency with the amended statutory provisions, the Proposed Rule offers two (2) new exceptions to the one-year timely filing period. 

If finalized, the regulation text will be amended to provide:

• Claims for services provided on or after January 1, 2010 must be submitted no later than one (1) calendar year after the date of service;
• Claims for services provided in October through December of 2009, must be filed no later than December 31, 2010; and
• All other claims for services provided before October 1, 2009 will be subject to the pre-existing regulations. 

Presently, there is an exception to the "timely filing" requirement permitting the filing of claims outside the filing period in the event of error or misrepresentation by CMS, its contractors or agents.  With respect to this exception, CMS is proposing that no extension of time be granted beyond four (4) years from the date of service.  CMS believes that introducing this limitation strikes a balance between fairness for providers/suppliers and beneficiaries, and administrative finality for the Medicare program.  CMS is soliciting comments on how the four-year limitation will impact providers and whether such a limitation is appropriate.  Commenters may want to suggest an alternative limitation period with justification for any proffered alternatives. 

A new proposed exception will allow providers and suppliers to file claims after the time limit when CMS or its contractors determine that, at the time the service was furnished, the beneficiary was not entitled to Medicare but later received notice of Medicare entitlement effective retroactive to or before the date of the furnished service.  Under these circumstances, the time to file a claim would be extended through the last day of the sixth (6^th) calendar month following the month in which the beneficiary received notice of retroactive Medicare eligibility. 

Another new proposed exception affects claims for dually-eligible beneficiaries (i.e., those individuals eligible for both Medicare and Medicaid coverage).  This new exception will permit providers and suppliers to file claims after the time limit if CMS or its contractors determine that, at the time the service was furnished, the beneficiary was not entitled to Medicare, the beneficiary subsequently received notice of retroactive Medicare entitlement, and a State Medicaid agency recovered the Medicaid payment for the furnished service from the provider/supplier eleven (11) months or more after the date of service.  If all three of these criteria are met, then the time to file a claim will be extended through the last day of the sixth (6^th) calendar month following the month in which the State Medicaid agency recovered the Medicaid payment for the furnished service.  CMS believes if Medicaid recovers its incorrect payment (and instructs the provider/supplier that Medicare should be billed instead) within eleven (11) months of the date of service, no extension to the timely filing period will be necessary since enough time remains to bill Medicare for the service rendered. 

CMS stated that the term "date of service," so important for determining when a claim must be filed, ordinarily means "the date that the item or service is actually furnished to the beneficiary."  However, it admitted that it is not always possible to apply a uniform rule with respect to every Part A and B service.  CMS intends to provide "sub-regulatory" guidance on what constitutes the "date of service" for different Part A and B services.  However, CMS seeks comments as to whether it should provide a regulatory definition of "date of service" and, if so, what that definition should be.

Finally, CMS clarifies that the exception to the time limits for filing claims does not supersede the restrictions on retrospective billing for certain newly-enrolled suppliers (e.g., physicians, non-physician practitioners, IDTFs) as set forth in those regulations.  Also, the proposed one-calendar year timely filing limit will apply to any retrospective claims permitted for newly-enrolled suppliers and to claims for items or services furnished after the effective date of the supplier's billing privileges.  Comments to the Proposed Rule are due by August 24^th.    

If you would like additional information, please contact Regan E. Tankersley at (317) 977-1445 or rtankersley@hallrender.com or Adele Merenstein at (317) 752-4427 or amerenst@hallrender.com.