CMS Pub. 100-04, ch. 30, § 140.5

Nonparticipating physicians have the same rights to appeal the contractor’s

redetermination in an unassigned claim for physicians’ services if the contractor denies or

reduces payment on the basis of §1862 (a)(1) as they or participating physicians have in

assigned claims. These rights of appeal also extend to determinations that a refund is

required either because the physician knew or should have known that Medicare would

not pay for the service, or because the beneficiary was not properly informed in writing in

advance that Medicare would not pay or was unlikely to pay for the service or, if so

informed, did not sign a statement agreeing to pay. In addition to the beneficiary’s right

to appeal the contractor’s decision to deny or reduce payment on the basis of §1862

(a)(1), the beneficiary becomes a party to any request for appeal filed by the physician.

Since the beneficiary and the physician may have adverse interests in a decision

regarding refund, it is essential to notify the beneficiary in any case in which the

physician requests an appeal of the denial or reduction in payment or asserts that a refund

is not required because one of the conditions in §140.4 is met. (See Chapter 29, “Appeals

for detailed appeals instructions.”)