Appealing a Non-Assigned Claim – Designation by Beneficiary

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AMARILLO, TX - As I have discussed in recent Medtrade Monday articles, the DME industry is shifting away from the classic “assignment” model (i.e., the supplier bills and collects from Medicare) to the “non-assigned” model (i.e., the patient pays up-front cash to the supplier and the supplier submits a claim to Medicare on behalf of the patient).

As the industry moves to the “non-assigned” model, a number of questions arise. This article addresses one of the questions: What form does the Medicare beneficiary need to sign if he/she is designating the supplier as the beneficiary’s agent for appealing a non-assigned claim?

The form for designating a representative can be found at the following link:
https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/CMS-Forms-Items/CMS012207.html

The following are instructions related to completing the form found in the Medicare Claims Processing Manual, Chapter 29, Section 270 et. seq: A provider or supplier who files an appeal request on behalf of a beneficiary is not, by virtue of filing the appeal, a representative of the beneficiary. To act as the beneficiary’s representative, the provider or supplier must execute a valid appointment as described in this section.

The CMS-1696 is available for the convenience of the beneficiary or any other party to use when appointing a representative. Following are instructions for completing the form.

1. The name of the party making the appointment must be clearly legible. If the party being represented is the beneficiary, the Medicare number (also known as a Health Insurance Claim Number or HICN) must be provided. If the party being represented is a provider or supplier, the National Provider Identifier number should be provided. If the party being represented is an applicable plan in an appeal under 42 CFR §405.924(b)(16), the space may be left blank. A HICN is required only when the beneficiary is the party appointing a representative.

2. Completing Section I – “Appointment of Representative”- The party making the appointment includes their handwritten ink signature, address, and phone number. If the party that wishes to appoint a representative is a beneficiary, then only the beneficiary or the beneficiary’s legal guardian may sign. If the party making the appointment is the provider or supplier, the provider or supplier (or person authorized to act on behalf of the provider or supplier) must sign the form and complete this section. The date the party signs the form must be included.

3. Completing Section II – “Acceptance of Appointment”- A specific individual must be named to act as representative in the first line of this section; a party may not appoint an organization or group to act as representative. The name of the individual appointed as representative must always be completed, and his/her relationship to the party entered. The individual being appointed signs the form with a handwritten ink signature, dates and completes the rest of this section.

4. Completing Section III – “Waiver of Fee for Representation”- This section must be completed when the beneficiary is appointing a provider or supplier as representative, and the provider or supplier being appointed has furnished the items or services that are the subject of the appeal.

5. Completing Section IV – “Waiver of Payment for Items or Services at Issue” – This section must be completed when the beneficiary is appointing a provider or supplier who furnished the items or services that are the subject of the appeal and the appeal involves issues described in §1879(a)(2) of the Act (limitation on liability).

If any of the required elements listed above are missing from the appointment, or are determined to be invalid (e.g. the signature does not meet the requirements of this section), the appointment is considered defective. See §270.1.6 for additional information on processing appeals with an incomplete or invalid appointment.

Prohibition Against Charging a Fee for Representation
A provider or supplier that furnished items or services to a beneficiary may represent that beneficiary on the beneficiary’s claim or appeal involving those items or services. However, the provider or supplier may not charge the beneficiary a fee for representation in this situation.

Waiver of Right to Payment for the Items or Services at Issue
For beneficiary appeals involving a liability determination under §1879 of the Act where the provider or supplier that furnished the items or services at issue is also serving as the beneficiary’s representative, the provider or supplier must waive, in writing, any right to payment from the beneficiary for the items or services at issue (including coinsurance and deductibles). The provider or supplier representative does this by completing section IV of the CMS-1696 or other conforming written instrument, and must sign and date the statement.

The prohibition against charging a fee for representation, and the waiver of right to payment from the beneficiary for the items or services at issue, do not apply in those situations in which the provider or supplier merely submits the appeal request on behalf of the beneficiary or at the beneficiary’s request (i.e., where the provider or supplier is not also acting as representative for the beneficiary), or where the items or services at issue were not provided by the provider or supplier when the provider or supplier has been appointed as the beneficiary’s representative.

Given the requirement that the supplier waive right to payment under certain circumstances if acting as the designated representative of the patient, it may be better to simply assist the beneficiary with submitting the appeal at the redetermination level, since the supplier can file reconsideration and subsequent appeals in its own right.  The Medicare Claims Processing Manual, Chapter 29, Section 210 states, in relevant part:

Parties to the redetermination and subsequent appeal levels include:
A nonparticipating supplier has the same rights to appeal the contractor’s determination in an unassigned claim for medical equipment and supplies if the contractor denies payment on the basis of §1862(a)(1), §1834(a)(17)(B), §1834(j)(1), or §1834(a)(15) of the Act as a nonparticipating or participating supplier has in assigned claims. These rights of appeal also extend to determinations that a refund is required either because the supplier knew or should have known that Medicare would not pay for the item or service (See §1834(j)(4)), or because the beneficiary was not properly informed in writing with an Advanced Beneficiary Notice of Non Coverage (ABN) that Medicare would not pay or was unlikely to pay for the item or service. While the time limits in §310 apply for filing requests for redetermination, refunds must be made within the time limits specified in Chapter 30. An adverse advance determination of coverage under §1834(a)(15) of the Act is not an initial determination on a claim for payment for items furnished and, therefore, is not appealable.

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm based in Amarillo, Tex. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or [email protected]

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