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By Settlement Solutions, April 29, 2013 1:40 pm

On April 22, 2013, CMSCenters for Medicare and Medicaid Services released an updated User Guide for NGHPsNon Group Health Plans. Access to the updated User Guide can be found here. PMSI applauds the early release of this User Guide as CMSCenters for Medicare and Medicaid Services indicated in their recent April 9, 2013 teleconference that the User Guide would likely not be issued until May.

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By Settlement Solutions, April 10, 2013 2:50 pm

CMSCenters for Medicare and Medicaid Services held a teleconference regarding MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting Reporting on April 9, 2013 which pertained to Liability Insurance (including Self-Insurance), No-Fault, and Workers’ Compensation collectively recognized as Non-Group Health Plans (NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation). During this teleconference, CMSCenters for Medicare and Medicaid Services addressed various topics, including, but not limited to MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting Reporting, recent MIRMandatory Insurer Reporting alerts, and the implementation of ICD-10International Classification of Diseases, 10th Edition as it relates to reporting.

Please note that this blog only touches on some of the highlights of the CMSCenters for Medicare and Medicaid Services Teleconference¹ and is not all-inclusive of items discussed during the teleconference. CMSCenters for Medicare and Medicaid Services stated that all official guidelines are posted on the Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting web page at www.cmsCenters for Medicare and Medicaid Services.gov/MandatoryInsRep. If there are any conflicts between the documents/information posted on the web site and what is stated on the teleconference, the written documents/information posted on the web site prevail.

A schedule of upcoming teleconferences will be available on the website; there are no future scheduled teleconferences at this time.

CMSCenters for Medicare and Medicaid Services posted an alert on March 24^th regarding data elements that are now optional rather than required. CMSCenters for Medicare and Medicaid Services hopes that it will simplify the process for RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA. The alert is available on the website.

The profile recertification process for RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA has been put on hold temporarily but is scheduled to resume in the near future. Recertification will not occur as it did in 2012 with many RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA going through recertification at the same time. The activity in 2013 will be evenly distributed throughout the year and an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA that recertified in early 2012 may find their 2013 recertification to be later in the calendar year. In 2014, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should receive the recertification request on the anniversary of the recertification from 2013. RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should wait to receive the recertification request before contacting the COBCCoordination of Benefits Contractor.

For technical support, RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should always utilize the escalation process provided in the NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation User Guide.

An updated NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation User Guide is expected to be issued in May 2013. However, most updates will include alerts previously issued and information previously provided by CMSCenters for Medicare and Medicaid Services. The updates to the User Guide will be notated in the first chapter of each section of the User Guide.

Questions submitted to the Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting mailbox

Will CMSCenters for Medicare and Medicaid Services add an ICD-9International Classification of Diseases, 9th Revision code for Instantaneous Death?

CMSCenters for Medicare and Medicaid Services has no current plans to make this an acceptable ICD-9International Classification of Diseases, 9th Revision code. RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA’s will need to follow up and find information about the injuries which lead to the death.

What should an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do if a query was submitted for a 65 year old individual but the query did not find the individual to be a Medicare beneficiary?

If the individual did not match in CMSCenters for Medicare and Medicaid Services’ system, the individual is likely not a Medicare beneficiary. However, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should double check the information being submitted and be sure that the information submitted is accurate. There should be no need for further action by the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA; however, CMSCenters for Medicare and Medicaid Services recommends that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do one query on or after the date of settlement due to the fact that the beneficiary may be pending receipt of benefits when initially queried. The RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can cease querying after they confirmed they are not a beneficiary at the time of settlement.

If an individual is no longer treating, but the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA retains legal responsibility due to the fact that the state does not allow the closure of future medical treatment, how should these claims be reported?

Even if the individual is not currently receiving treatment, it should be treated as an open ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) in the event that the beneficiary may require further treatment. The RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should not terminate ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) until legal responsibility for future medical treatment is terminated. The fact that an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA has administratively closed a case does not mean ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) should be terminated.

If a liability settlement occurs that is exactly $5,000, is that currently reportable?

The current liability TPOCTotal Payment Obligation to the Claimant thresholds run from October 1, 2012-September 30, 2013 and only settlements over $5,000 need to be reported. Therefore, if the TPOCTotal Payment Obligation to the Claimant occurred after October 1, 2012 and it was for exactly $5,000 it would not be a reportable claim. However, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA may voluntarily report the claim.

When will ICD-10International Classification of Diseases, 10th Edition be applied to Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting , and if so, how does CMSCenters for Medicare and Medicaid Services plan to implement ICD-10International Classification of Diseases, 10th Edition?

As of right now, October 1, 2014 is the roll out/go-live date for ICD-10International Classification of Diseases, 10th Edition. CMSCenters for Medicare and Medicaid Services plans to start testing in October 2013 to give the industry a year to get ready for ICD-10International Classification of Diseases, 10th Edition implementation for Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting . CMSCenters for Medicare and Medicaid Services will issue an alert confirming the requirement of ICD-9International Classification of Diseases, 9th Revision versus 10 when they have made a firm decision.

Will CMSCenters for Medicare and Medicaid Services answer questions regarding the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 on today’s teleconference call?

No questions regarding the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will be answered. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will be implemented per CMSCenters for Medicare and Medicaid Services timelines and through rulemakings.

Open Question and Answer Session  

Regarding loss of consortium and other derivative claims, if a spouse files and releases “all claims” in a settlement, but the spouse did not make any emotional/physical claim should the “NOINJ” code should be used? Is the claim reportable even if medicals are not part of a wrongful death settlement?

Yes, the “NOINJ” code should be used in this situation, and there is a separate report for each individual-i.e., both spouses should have separate reports. Yes, the claim is still reportable even if medicals are not part of the wrongful death settlement; RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA are not permitted to interpret state laws for CMSCenters for Medicare and Medicaid Services.

In a no-fault claim, if the Statute of Limitations (SOL) has ran, can the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA terminate the ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case)?

Yes, if the no-fault carrier is going to cease payment and will not pay anything after the SOL has expired then the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can terminate the ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case).

In a liability case where a Medicare beneficiary will require future treatment, but the Plaintiff agrees in writing to pay for their future medical care, will the defendant be subject to future liability by Medicare?

CMSCenters for Medicare and Medicaid Services refused to answer this question and stated that it was “outside the scope of the call.”

With respect to the ANPRMAdvance Notice of Proposed Rulemaking issued last year regarding MSPMedicare Secondary Payer Act and future medicals, is there any sense of timing as to when the industry will receive proposed rules or the agency’s next steps or statements? How will the ANPRMAdvance Notice of Proposed Rulemaking affect defendants?

CMSCenters for Medicare and Medicaid Services also refused to answer this question. They noted that the industry can look for updated announcements in the Federal Register. They also noted that even the people working on CMSCenters for Medicare and Medicaid Services rulemakings often times do not know the day it will be published.

What should RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do when Medicare beneficiaries are being denied coverage or treatment for items not related to their liability or workers’ compensation case?

CMSCenters for Medicare and Medicaid Services recommends that RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA provide the recent MedLearn article that CMSCenters for Medicare and Medicaid Services issued which makes it clear that an open liability, no-fault or workers’ compensation case is not a basis for a provider denying treatment.

In terms of payment, CMSCenters for Medicare and Medicaid Services does have prompt pay rules, unless there is ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) posted related to the claim. Most cases are denied appropriately; however, the beneficiary can also appeal the denial. The beneficiary can also call 1-800-Medicare or can seek assistance from their local regional office.

If there is a liability policy that also has MedPay, and payments are made incrementally under MedPay, would that be reported as ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case)?

This would be reported as ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case); MedPay is ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) since it is a type of no-fault.

With regard to the March 24^th alert, if there are errors that come back from a prior submission and the error is contained within a field that is now “optional” pursuant to the March 24^th alert, should the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA disregard the error report or make the correction?

On the next quarterly submission, you can remove your e-code only if it was blank in the first place. However, if information was provided that was incorrect, it should be corrected on the next quarterly submission.

What if a claim was made with ICD-9International Classification of Diseases, 9th Revision codes but becomes reportable after October 2014? How will that be reported to CMSCenters for Medicare and Medicaid Services?

CMSCenters for Medicare and Medicaid Services’ intent is to allow the ICD-9s to continue to be reported; however, this is something that CMSCenters for Medicare and Medicaid Services is looking into. CMSCenters for Medicare and Medicaid Services does not expect people to interpret/transfer ICD-9International Classification of Diseases, 9th Revision to ICD-10International Classification of Diseases, 10th Edition. The goal is to make this as easy as possible for everyone.

^{1. Questions and answers have been paraphrased.
Disclaimer:
This blog is provided as reference material and is based on verbal information derived from third parties during teleconferences hosted by the Centers for Medicare and Medicaid Services (CMSCenters for Medicare and Medicaid Services). PMSI does not assume liability or responsibility for the accuracy or completeness of the material in this document. The information contained herein should not be construed as an endorsement of any kind or an official transcript of the teleconference. PMSI makes no representation or warranties of any kind, either express or implied, that this information is accurate, up-to-date, or error free and PMSI shall not be liable in any amount for any damage, however arising, that may occur as a result of your reliance on this information. This document is advisory in nature only and does not represent official policy, procedures, or opinions of CMSCenters for Medicare and Medicaid Services or PMSI. For official information regarding Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting of the Medicare, Medicaid, and SCHIP Extension Act (MMSEAMedicare Medicaid and SCHIP Extension Act), refer to the official web page https://www.cmsCenters for Medicare and Medicaid Services.gov/MandatoryInsRep/.↩}

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By Settlement Solutions, April 8, 2013 2:53 pm

Next week, Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP will offer her expertise in reference to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and other MSPMedicare Secondary Payer Act legal updates on Tuesday, April 16, 2013 from 1 PM -2 PM EDT.

The 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 CEU or CLEContinuing Legal Education credit for this webinar and to Register, please click here.

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By Settlement Solutions, March 26, 2013 10:27 am

Case law as it pertains to MSPMedicare Secondary Payer Act compliance in liability settlements continues to reach different conclusions in different courts. In fact, the only aspect that appears to be consistent in these opinions is a lack of any significant trend or majority position concerning exactly how to apply the MSPMedicare Secondary Payer Act Act in liability cases. More specifically, due to the ambiguous/confusing nature of the MSPMedicare Secondary Payer Act in liability settlements, there has been a vast difference of opinion as to how to protect Medicare’s interest through the use of MSAsMedicare Set-Asides under the MSPMedicare Secondary Payer Act.

We have seen several cases find that a LMSALiability Medicare Set-Aside is required/appropriate for compliance with the MSPMedicare Secondary Payer Act in Louisiana and Mississippi (see Frank v. Gateway Insurance Co., 2012 U.S. District LEXIS 33581 and Welch v. American Home Insurance Company, 2013 U.S. District LEXIS 25948). Additionally, in a recent Florida case, Early v. Carnival Corp., 2013 U.S. District LEXIS 16711, the court refused to provide an advisory opinion on whether an LMSALiability Medicare Set-Aside was required under the MSPMedicare Secondary Payer Act because to do so would have required the court to draft (rather than interpret) a key part of the settlement. However, in Sterrett v. Klebart, 2013 Conn. Super. LEXIS 245 (February 5, 2013), the court found that the settlement parties were not required to set-aside any settlement proceeds for future medical benefits, despite the fact that the injured party became a paraplegic as a result of the alleged injury in this liability lawsuit.

The facts of the Sterrett case involve the Plaintiff, Clifford Sterrett (Sterrett), who was a social invitee at the home of the defendants. Sterrett was walking down the stairs at the home when he fell backwards and was injured. Sterrett suffered a spinal cord injury that resulted in paraplegia and alleged that the defendants were negligent because the stairway did not have a handrail. The defendants countered that Sterrett was contributorily negligent because he was under the influence of alcohol at the time that he fell. The defendants also asserted a series of other special defenses.

The parties mediated and reached a settlement in the amount of $550,000. The court recognized that considering all of the facts and circumstances of the case, particularly the nature of Sterrett’s injuries and all of the special defenses raised by the defendants, the defendants’ agreement to settle the case for $550,000 represented a substantial compromise over the potential verdict range in a jury trial. Due to the fact that the settlement was “compromised” and settlement funds paid to Sterrett were not intended to include funds representing compensation for future medical benefits, the court found that the settlement parties were not required to set-aside any of the settlement proceeds for future medical benefits which may be paid by Medicare.

There was an acknowledgement that there was an obligation to reimburse Medicare for conditional payments and that Medicare was owed $14,448.30. The court further found that the parties “reasonably and adequately considered the interest of Medicare in the settlement, and the plaintiffs and defendants should not be subject to any claim, demand, or penalty from Medicare as a result of the settlement payment that has been agreed upon in this manner.”

What is interesting about this case is that the court acknowledged that Sterrett would incur medical bills payable by Medicare in the foreseeable future. However, because the settlement funds contemplated by this particular settlement agreement did not include any significant amount that would be used to cover the costs of future medical expenses, there was absolutely nothing to set-aside. It appears that by “creative lawyering” of the settlement allocation, the parties were able to convince the court that nothing in this settlement involved future medical costs. In this particular case, the court was more than willing to go along with this way of thinking.

The court seemed to side step the issue of the burden shift of future costs to Medicare. Obviously, in this case the plaintiff is a paraplegic and someone is going to have to pay for his medical coverage. The parties and the court appear to be simply pointing fingers to the government and saying, “Let Medicare pay.” However, in the end, the burden may end up being shifted to Sterrett, the Medicare beneficiary in this case. As this case is reportable under MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting , the Centers for Medicare and Medicaid Services (CMSCenters for Medicare and Medicaid Services) will flag the ICD-9International Classification of Diseases, 9th Revision codes reported and associated with the settlement and could potentially deny Sterrett coverage for items related to the injury until the entire settlement is exhausted. The court stated that the plaintiffs in this case should not be subject to any future claim, demand, or penalty from Medicare in the future. Yet, CMSCenters for Medicare and Medicaid Services is arguably not bound by this statement or this decision and further, it appears that no determination as to Sterrett’s contributory negligence was made by the court; therefore, Sterrett may be without recourse if he appeals loss of Medicare coverage through Medicare’s administrative appeals process.

Even if Medicare does not deny Sterrett coverage in the end, the burden is arguably being shifted to Medicare in some form or fashion. The future medical cost has to go somewhere- and it is going to be either the Medicare beneficiary or the Medicare Trust Fund. Although CMSCenters for Medicare and Medicaid Services has not finalized “formal guidance” on how to comply with the MSPMedicare Secondary Payer Act with regard to future medical treatment in liability cases, it seems that the intent behind the MSPMedicare Secondary Payer Act and the protection of Medicare’s interests was not accurately applied to this case and seems to have lost its way.

Hopefully in the future, courts will have a better understanding of the potential burden shift to Medicare and will find a resolution that not only protects the settlement parties, but also protects the Medicare Trust Fund and the Medicare beneficiary.