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By Settlement Solutions, April 30, 2012 10:37 am

Do you have questions about when to submit an MSAMedicare Set-Aside to CMSCenters for Medicare and Medicaid Services, or the best mechanism to protect Medicare’s interests in a liability settlement? Did you hear about the plans for an MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments web portal, or that an MSAMedicare Set-Aside was considered a marital asset in a recent court case?

Please join our webinar to learn about these exciting MSPMedicare Secondary Payer Act Compliance updates on Tuesday, May 22, 2012 from 1 PM -2 PM EST.

Presented by Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP, Corporate Counsel for PMSI Settlement Solutions, the Webinar will also discuss a variety of topics, including, but not limited to:

• Overview of the Medicare Secondary Payer Act
• Submission of MSAsMedicare Set-Asides to CMSCenters for Medicare and Medicaid Services and State Regulation of CMSCenters for Medicare and Medicaid Services Submission
• Applicability of the MSPMedicare Secondary Payer Act to Liability Settlements
• Medicare Conditional Payment Updates
• Role of Plaintiff and Defense Counsel in MSPMedicare Secondary Payer Act Compliance
• Recent Medicare Secondary Payer Case Law
• Legislative Update

This Webinar is complimentary and 1 hour of CEU and CLEContinuing Legal Education credit has been applied for in multiple states; all attendees who successfully complete the Webinar will be provided with a Certificate of Attendance. For more information on obtaining CLEContinuing Legal Education and CEU credit for this webinar, please see the Registration page.

Register Here

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By Settlement Solutions, April 26, 2012 3:05 pm

Over the last year and a half, the FDAU.S. Food and Drug Administration approved several new formulations of existing medications that are commonly prescribed in workers’ compensation claims.  Some of these new formulations have already been released to the market by their manufacturers and others are expected to be available later this year. 

Newly formulated medications which are currently available include:

• Butrans Transdermal Patch is the first non-injectable formulation of Buprenorphine approved for the treatment of moderate to severe pain in patients requiring around-the-clock pain management on a chronic basis.  One patch is applied weekly, which will be an advantage for those patients now taking pain medications requiring multiple doses throughout the day by supplying the continuous release of medication to control the patient’s pain.
• Sprix (Ketorolac) Nasal Spray is approved for the treatment of moderate to severe pain, but should not be used for longer than five consecutive days due to the risk of increased adverse effects.  This product would be an appropriate alternative for patients who are using the injectable formulation, but will likely not be utilized as frequently as the oral/injectable forms due to its considerably higher cost.
• Duexis (Ibuprofen/Famotidine) Tablet is a new combination anti-inflammatory, anti-ulcer medication approved for the treatment of rheumatoid arthritis and osteoarthritis.  Its utilization will likely remain low since there is no clinical advantage to prescribing it over similar OTCOver The Counter medications and would only serve to increase costs for the workers’ compensation carrier.
• Oxecta (immediate release Oxycodone) is the first abuse-resistant formulation of immediate release Oxycodone monotherapy approved for the management of acute and chronic moderate to severe pain.  It has been formulated to turn to a gel-like substance when crushed or dissolved to prevent it from being inhaled or injected.
• Intermezzo (a lower strength sublingual Zolpidem) is approved for the treatment of insomnia with “middle-of-the-night” awakening.  This formulation will allow for a more rapid onset of action; however its clinical significance has yet to be established.  

New medication formulations that have been approved by the FDAU.S. Food and Drug Administration, but not currently available are:

• OP Oxycontin (long acting Oxycodone) and the new Opana ERExtended Release (medication) (long acting Oxymorphone) are both tamper-resistant formulations of existing opioid pain medications.   These medications were reformulated to prevent them from being cut, crushed, chewed, or dissolved to release more medication.  These new formulations should lead to a decrease in abuse, misuse, addiction and overdose, all of which can drive up prescription as well as medical costs. 
• Fortivo XL (Bupropion extended release) is approved for the treatment of major depression and is available at the recommended maximum daily dose of 450mg in a single dose tablet.  The availability of a single dose tablet could lead to increased compliance with a more effective clinical outcome than when the patient is prescribed Bupropion formulations requiring multiple doses.

The medications previously mentioned are all Brand name medications, but a generic formulation of Quetrapine Fumarate was also recently approved.  Quetrapine Fumarate (generic immediate release Seroquel) is approved for the treatment of bipolar disorder, mania, schizophrenia and depression.  Brand Seroquel was listed in the top 20 brand medications by total transactions in the workers’ compensation industry in the PMSI 2012 Annual Drug Trends Report.  Therefore, the availability of the generic formulation will definitely have an impact on prescription costs within the workers’ compensation industry.

2012 is already proving to be a busy year for new medication releases and formulations.  As the year progresses, PMSI will continue to keep the industry informed of prescription drug updates and how they will impact workers’ compensation claim costs.

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By Settlement Solutions, April 20, 2012 2:19 pm

With various types of insurance on the market, it is no surprise that some insurance plans may be confused as to whether they have an obligation to report under the MMSEAMedicare Medicaid and SCHIP Extension Act. Out of the United States District Court for Oregon (the Portland Division), the Plaintiff State Bar Professional Liability Fund (PLF), which provides non-profit legal malpractice insurance for Oregon attorneys, sought a summary judgment from the court that it was not an entity that was required to report under MMSEAMedicare Medicaid and SCHIP Extension Act, or an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA. ¹

Before seeking summary judgment in court, on July 28, 2010, PLF wrote to the DHHSDepartment of Health and Human Services to argue that it was not an applicable liability plan under the MMSEAMedicare Medicaid and SCHIP Extension Act and therefore had no reporting duty. The PLF sought a formal opinion that the MMSEAMedicare Medicaid and SCHIP Extension Act’s reporting requirement does not apply to the PLF. On August 20^th, DHHSDepartment of Health and Human Services responded that applicable plans included liability insurance and, consequently, the PLF was an applicable plan under the MMSEAMedicare Medicaid and SCHIP Extension Act. Unsatisfied with the DHHSDepartment of Health and Human Services response, the PLF filed an action in the District Court of Oregon on November 12^th seeking the following claims: 1) declaratory judgment that PLF is not an applicable plan or RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA under the MMSEAMedicare Medicaid and SCHIP Extension Act, 2) Secretary Sebelius (of DHHSDepartment of Health and Human Services) acted ultra vires (in an unauthorized manner) in determining that PLF is an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA, 3) Court review that Secretary Sebelius violated the APAAdministrative Procedures Act in determining that PLF is an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA, and 4) the Court review of Secretary Sebelius’ determination concerning PLF.

After the Court took a thorough review of both the MSPMedicare Secondary Payer Act as well as the MMSEAMedicare Medicaid and SCHIP Extension Act, a statutory interpretation of the MMSEAMedicare Medicaid and SCHIP Extension Act was necessary to determine whether PLF should be an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA with a duty to report. The Court noted that there was no dispute that PLF is a type of liability insurance. DHHSDepartment of Health and Human Services stated that the plain language of the statute should end the inquiry because liability insurance is included in the definition of applicable plan. PLF asserted they would never be subject to a repayment obligation for conditional payments made by Medicare and therefore, would have no duty to report. However, both parties did agree that the reporting requirement under the MMSEAMedicare Medicaid and SCHIP Extension Act was intended to assist Medicare recover conditional payments made when the primary plan was actually responsible for the payment.

The question for the Court then became “Would PLF be an applicable plan subject to the reporting requirement under the MMSEAMedicare Medicaid and SCHIP Extension Act?” The Court noted that PLF provides legal malpractice insurance for all Oregon attorneys, and would cover claims against attorneys who cause economic damage related to the provision of legal services. It went on to state that PLF would not cover claims of tortuous conduct that results in bodily or emotional injuries, and thus, would not ever have primary responsibility for paying items or services claimed by a Medicare beneficiary.

DHHSDepartment of Health and Human Services countered that a malpractice claim involving a personal injury case could involve medical expenses paid conditionally by Medicare (such as emotional stress due to the underlying malpractice issue). The Court conceded that this point was true, but pointed out that it was not convinced that PLF would be an applicable plan subject to reporting requirements for two reasons. First, the Court noted that PLF would not have primary responsibility to pay for a claimant’s medical injuries. This primary payer obligation would fall upon the insurance companies who insure the underlying claim. The Court also noted that PLF’s malpractice coverage exempts bodily or emotional injuries. Second, a significant lag time would exist between any injury or medical payment and a decision concluding that an attorney committed malpractice, which would trigger any payment obligations for the PLF. The Court therefore granted PLF’s motion for summary judgment on claims one and four, and claims two and three were dismissed as moot.

This case was interesting on multiple levels. First, this appears to be the first case wherein a Court was asked to opine on whether an insurance plan should be considered an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA under the MMSEAMedicare Medicaid and SCHIP Extension Act. Second, it is curious whether the Court analyzed in detail all situations where PLF’s liability would cover medical expenses in a malpractice situation under the plan. If there was ever a malpractice claim against PLF wherein the attorney’s misconduct/malpractice eventually caused a claim of physical or psychological damage, would PLF ever have primary responsibility to cover those injuries? If so, and Medicare conditionally paid for those medical bills, one could argue that they would be conditional payments subject to reimbursement by PLF (and not the original insurer) and therefore, the claim should be reportable by PLF under MMSEAMedicare Medicaid and SCHIP Extension Act.

CMSCenters for Medicare and Medicaid Services recently addressed whether claims such as these would be reportable in a recent teleconference. On March 22, 2012, CMSCenters for Medicare and Medicaid Services was asked: “In a professional liability claim, if there is one line in the release that states there is mental anguish being alleged, is this claim reportable?” CMSCenters for Medicare and Medicaid Services responded, “Mental anguish is a medical condition. If any medicals are claimed and/or released, the claim is reportable.”

From CMSCenters for Medicare and Medicaid Services’ response, it appears that the distinguishing factor in determining whether the claim is reportable or not is whether any medicals are claimed and/or released. Liability plans such as PLF should ensure to take this very important factor into account when settling claims and analyzing whether they may need to report a claim under MMSEAMedicare Medicaid and SCHIP Extension Act.
^{1. [Oregon State Bar Professional Liability Fund v. U.S. Dept. of Health and Human Svcs., 2012 U.S. Dist. LEXIS 43790 (March 29, 2012).]↩}

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By Settlement Solutions, April 13, 2012 9:44 am

CMSCenters for Medicare and Medicaid Services has been under scrutiny since June 22, 2011 when they were questioned regarding the MSPMedicare Secondary Payer Act program during a congressional oversight hearing. Deborah Taylor, the Chief Financial Officer of CMSCenters for Medicare and Medicaid Services, faced very difficult questioning during the hearing regarding financial controls that CMSCenters for Medicare and Medicaid Services had in place to ensure the MSPMedicare Secondary Payer Act regime was operating efficiently.

On April 3, 2012, the release of a report by the GAOGovernment Accountability Office entitled “Medicare Secondary Payer- Additional Steps Are Needed to Improve Program Effectiveness for Non-Group Health Plans” was disseminated, seemingly in response to a request from Representative Stark (D-CA-9) on August 10, 2010.  Both CMSCenters for Medicare and Medicaid Services officials and a group of NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation stakeholders were consulted during the review period which mainly included a review of processes and statistics over the last four years. For a copy of the GAOGovernment Accountability Office Report, please click here.

The GAOGovernment Accountability Office Report focused on multiple areas of interest to the industry and provided a quantitative overview of the increase in MSPMedicare Secondary Payer Act contractor workloads, CMSCenters for Medicare and Medicaid Services payments to contractors, and Medicare savings from 2008 through 2011. The Report noted that the increase in workload is directly related to the delays CMSCenters for Medicare and Medicaid Services and its contractors have been experiencing.  CMSCenters for Medicare and Medicaid Services has stated that the increase in workloads is expected to continue and could be due to mandatory reporting and the industry’s submissions of ineligible WCMSAWorkers' Compensation Medicare Set-Aside submissions.

One of the more significant points the GAOGovernment Accountability Office made was that the MSPMedicare Secondary Payer Act process should always be cost effective.  If administrative costs exceed the recovery amount, the intent to protect Medicare’s interest becomes questionable. While CMSCenters for Medicare and Medicaid Services has taken steps to address some of these concerns, there are other issues that have not been adequately addressed, such as how to appropriately consider Medicare’s interest in liability settlements, the lack of a formal appeals process for WCMSAs and the significant turnaround times for WCMSAWorkers' Compensation Medicare Set-Aside reviews.

The report concluded with the GAOGovernment Accountability Office making the following recommendations to HHSDepartment of Health and Human Services to improve the effectiveness of the MSPMedicare Secondary Payer Act process:

• CMSCenters for Medicare and Medicaid Services should review the recovery thresholds periodically to ensure recovery efforts are being conducted in the most cost-effective manner possible
• CMSCenters for Medicare and Medicaid Services should not require NGHPsNon Group Health Plans to report MSPMedicare Secondary Payer Act cases which the Agency would not pursue for recovery
• CMSCenters for Medicare and Medicaid Services should consider making the submission of ICD-9International Classification of Diseases, 9th Revision codes an optional component of reporting for liability NGHPsNon Group Health Plans
• CMSCenters for Medicare and Medicaid Services should take the following actions to improve communication:
• Develop a centralized MSPMedicare Secondary Payer Act program website
• Develop guidance regarding liability and no-fault set-aside arrangement
• Review and revise the correspondence sent to beneficiaries to ensure rights and responsibilities are more clearly communicated

The GAOGovernment Accountability Office’s MSPMedicare Secondary Payer Act report concludes with comments made by the HHSDepartment of Health and Human Services in response to the GAOGovernment Accountability Office’s recommendations. HHSDepartment of Health and Human Services generally concurred with the majority of the GAOGovernment Accountability Office’s recommendations, and stated that several items were already being worked on. Of interest, in response to developing guidance regarding liability and no-fault set-aside arrangements, CMSCenters for Medicare and Medicaid Services responded that it was currently working on this and plans to use notice and comment rulemaking to seek industry input.   The liability industry has been waiting for guidance from CMSCenters for Medicare and Medicaid Services in this area, and will certainly welcome the opportunity to comment on how this should process should be implemented, if at all. However, it begs the question of why the workers’ compensation industry did not have an opportunity for notice and comment rulemaking with regard to WCMSAs. Perhaps that is forthcoming as well?

While the GAOGovernment Accountability Office study did not bring any major ground-breaking issues to light, it certainly brings the need for improvements to the MSPMedicare Secondary Payer Act process to the forefront of the government’s attention.   This GAOGovernment Accountability Office Report, along with other legislative activity such as the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, should promote more streamlined processes so that the MSPMedicare Secondary Payer Act program operates efficiently and properly takes into account the interests of both the insurance industry as well as the Medicare Trust Fund.