Rafael Gonzalez, Esq.
Vice President, Strategic Solutions, Settlement Solution, Helios
At the top of our goals every year is to make sure we continue to serve our clients by providing several educational opportunities on all components of Medicare Secondary Payer compliance. This year, in addition to the blogs we have posted, presentations we have delivered, opinions we have written, and research articles we have published, we also presented three webinars on the latest MSP compliance issues. Last week, we reviewed our Update on Mandatory Insurer Reporting; today we review our Update on Conditional Payments Resolution.
On Wednesday, October 14, 2015, 2015, from 1 to 2 pm, Helios hosted its second 2015 MSP Compliance Webinar, An Update on Conditional Payments Resolution. The webinar was presented by Lavonya Chapman, Esq., RN, Medicare Secondary Payer Compliance Counsel at Helios and Rafael Gonzalez, Esq., Vice President of Strategic Solutions at Helios.
Lavonya and Rafael discussed primary payers, including group health providers, workers’ compensation, liability and no-fault insurers, and self-insured entities, as well as beneficiaries, physicians, attorneys, hospitals, or clinics that receive payment from a primary payer. They also discussed primary payer responsibility, even when liability is contested, demonstrated by settlement, judgment, award, or other payment.
Lavonya and Rafael also spent some time addressing Medicare’s direct right of action against all primary payers, including the Medicare beneficiary, medical provider, physician, attorney, state agency, or private insurer. They also discussed private cause of action for double damages against Group Health Plans and Non-Group Health Plans. Lavonya specifically mentioned several federal court cases from around the country that have allowed Medicare Advantage Plans, medical providers/facilities, and plaintiff/counsel/estate double damages under MSP Act private cause of action provision.
Lavonya and Rafael spoke about three programs currently available when dealing with resolution of conditional payments in liability settlements. The first deals with a liability settlement, judgment, or award pertaining to physical trauma injury/accident only, where if the settlement, judgment, or award is $300 or less and no other settlements, judgments, or awards are expected, Medicare waives any conditional payments it may have paid. The second allows for a percentage of the settlement in liability claims. Lavonya and Rafael indicated that if in a liability claim for physical trauma injury only, the settlement, judgment, or award is $5,000 or less, and there is no expectation of receiving other payments, CMS will accept 25% of said settlement, judgment, or award to resolve all conditional payments due. The third applies if a liability settlement is for a physical injury only, not related to ingestion, exposure, or implantation, and such liability settlement, judgment, or award is $25,000 or less and there is written physician attestation that no medical treatment has occurred in the last 90 days, CMS will negotiate the resolution of such conditional payments.
Lavonya and Rafael also addressed the new Commercial Recovery Center (CRC) conditional payment recovery process, effective October 5, 2015. They indicated that in situations where the primary payer has accepted responsibility for ongoing medical care associated in either a work comp claim, no-fault matter, med-pay situation, or PIP type case, the CRC will identify conditional payments related to the claim made by Medicare and a Conditional Payment Notice (CPN) will then be issued to the Applicable Plan (AP). Applicable plans will have the opportunity to dispute medical claims identified on the CPN before a formal request for repayment, or demand, is issued. However new to the process is that APs will have 30 days from the date of the CPN to dispute whether the payments included in the CPN are related to the claim. If the AP does not respond within 30 days, the CRC will assume such charges are related to the claim and forward a demand letter. Lavonya and Rafael made it clear that the AP will have 60 days from the demand letter within which to make payment without being charged any interest. Payments made after the 60 days will be charged interest from the date of the demand letter.
Lavonya and Rafael explained how for the first time, applicable plans may appeal the amount or existence of the debt, in part or in full. As of April 28, 2015, applicable plans have an opportunity to initiate a formal appeal process by requesting redetermination, reconsideration, a hearing, review, and federal court action. They also reminded listeners that if the debt continues to be unresolved for 120 days, the CRC will issue a Notice of Intent to Refer (NITR) letter informing the AP of next steps should the debt remain unpaid, including referral to the Department of Treasury (DOT) for collection.
Lavonya and Rafael also explained that the AP must provide an accurate recovery address via the MMSEA Section 111 mandatory reporting process, as this is the address CMS will use to communicate with the AP. In addition, if another individual or entity is involved with post-demand correspondence to resolve a matter on the plan’s behalf, the CRC must have a written authorization on file. In other words, once the demand is issued, recovery agents will need to submit written authorization to continue working with the CRC.
Last, Lavonya and Rafael provided some insight and detail about the new formal appeals process available to payers, or applicable plans. As a result of the Strengthening Medicare and Repaying Taxpayers (SMART) Act, liability, self-insured, no-fault, and workers compensation entities are now afforded a formal multilevel appeal process, which includes: an “initial determination” (the MSP recovery demand letter), a “redetermination” by the contractor issuing the recovery demand, a “reconsideration” by a Qualified Independent Contractor (QIP), a hearing by an administrative law judge (ALJ), a review by the Departmental Appeals Board’s Medicare Appeals Council (MAC), and judicial review (USDC, USCA, and USSC). Therefore, if after dispute, an AP still believes an item should be removed from the Statement of Responsibility, then the Applicable Plan may appeal same using this process.
We are so very appreciative for your trust and confidence in us. We are so very grateful for your reliance on us and for allowing us to continue to serve your MSP compliance needs. Be on the lookout for details on our 2016 Helios Settlement Solutions MSP Compliance Webinar Series. We will soon announce dates and times for CEU accredited quarterly presentations that will concentrate on legislative, regulatory, and legal updates to mandatory insurer reporting, conditional payment resolution, and set aside allocations, approval, and administration, as well as non-CEU quarterly offerings that will focus on outside the box, creative problem solving solutions to the MSP compliance issues you have asked us to address and assist you with. As always, we welcome your thoughts and ideas on how to better to serve you, including possible topics for discussion and presentation during our 2016 webinar series. Please contact us at 888.672.7674, or at firstname.lastname@example.org.