(a) Appeals process. If an MA organization does not agree with the final settlement amount described in § 422.528(a), it may appeal under the following three-level appeal process:

(1) Reconsideration. An MA organization may request reconsideration of the final settlement amount described in § 422.528(a) according to the following process:

(i) Manner and timing of request. A written request for reconsideration must be filed within 15 calendar days from the date that CMS issued the notice of final settlement to the MA organization.

(ii) Content of request. The written request for reconsideration must do all of the following:

(A) Specify the calculation with which the MA organization disagrees and the reasons for its disagreement.

(B) Include evidence supporting the assertion that CMS' calculation of the final settlement amount is incorrect.

(C) Not include new reconciliation data or data that was submitted to CMS after the final settlement notice was issued. CMS does not consider information submitted for the purposes of retroactively adjusting a prior reconciliation.

(iii) Conduct of reconsideration. In conducting the reconsideration, the CMS reconsideration official reviews the calculations that were used to determine the final settlement amount and any additional evidence timely submitted by the MA organization.

(iv) Reconsideration decision. The CMS reconsideration official informs the MA organization of its decision on the reconsideration in writing.

(v) Effect of reconsideration decision. The decision of the CMS reconsideration official is final and binding unless a timely request for an informal hearing is filed in accordance with paragraph (a)(2) of this section.

(2) Informal hearing. An MA organization dissatisfied with CMS' reconsideration decision made under paragraph (a)(1) of this section is entitled to an informal hearing as provided for under paragraphs (a)(2)(i) through (a)(2)(iv) of this section.

(i) Manner and timing of request. A request for an informal hearing must be made in writing and filed with CMS within 15 calendar days of the date of CMS' reconsideration decision.

(ii) Content of request. The request for an informal hearing must include a copy of the reconsideration decision and must specify the findings or issues in the decision with which the MA organization disagrees and the reasons for its disagreement.

(iii) Informal hearing procedures. The informal hearing is conducted in accordance with the following:

(A) The CMS Hearing Officer provides written notice of the time and place of the informal hearing at least 30 days before the scheduled date.

(B) The CMS reconsideration official provides a copy of the record that was before CMS when CMS made its decision to the hearing officer.

(C) The hearing officer review is conducted by a CMS hearing officer who neither receives testimony nor accepts any new evidence. The CMS hearing officer is limited to the review of the record that was before CMS when CMS made its decision.

(iv) Decision of the CMS hearing officer. The CMS hearing officer decides the case and sends a written decision to the MA organization explaining the basis for the decision.

(v) Effect of hearing officer's decision. The hearing officer's decision is final and binding, unless the decision is reversed or modified by the CMS Administrator in accordance with paragraph (a)(3) of this section.

(3) Review by the Administrator. The Administrator's review is conducted in the following manner:

(i) Manner and timing of request. An MA organization that has received a hearing officer's decision may request review by the Administrator within 15 calendar days of the date of issuance of the hearing officer's decision under paragraph (a)(2)(iv) of this section. An MA organization may submit written arguments to the Administrator for review.

(ii) Discretionary review. After receiving a request for review, the Administrator has the discretion to elect to review the hearing officer's determination in accordance with paragraph (a)(3)(iii) of this section or to decline to review the hearing officer's decision within 30 calendar days of receiving the request for review. If the Administrator declines to review the hearing officer's decision, the hearing officer's decision is final and binding.

(iii) Administrator's review. If the Administrator elects to review the hearing officer's decision, the Administrator reviews the hearing officer's decision, as well as any information included in the record of the hearing officer's decision and any written argument submitted by the MA organization, and determine whether to uphold, reverse, or modify the hearing officer's decision.

(iv) Effect of Administrator's decision. The Administrator's decision is final and binding.

(b) Matters subject to appeal and burden of proof. (1) The MA organization's appeal is limited to CMS' calculation of the final settlement amount. CMS does not consider information submitted for the purposes of retroactively adjusting a prior reconciliation.

(2) The MA organization bears the burden of proof by providing evidence demonstrating that CMS' calculation of the final settlement amount is incorrect.

(c) Stay of financial transaction until appeals are exhausted. If an MA organization requests review of the final settlement amount, the financial transaction associated with the issuance or payment of the final settlement amount is stayed until all appeals are exhausted. Once all levels of appeal are exhausted or the MA organization fails to request further review within the applicable 15-calendar-day timeframe, CMS communicates with the MA organization to complete the financial transaction associated with the issuance or payment of the final settlement amount, as appropriate.

(d) Continued compliance with other law required. Nothing in this section limits an MA organization's responsibility to comply with any other applicable statute or regulation.

[89 FR 30825, Apr. 23, 2024]