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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 13, 2013 1:55 pm

2013 has been extremely busy with regard to MSPMedicare Secondary Payer Act compliance activity and updates.  We started out the New Year with the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 being signed by President Obama on January 10, 2013 which will set into motion a series of changes relating to MSPMedicare Secondary Payer Act compliance. Want to make sure you are completely up to date on the changes that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will bring this year?

PMSI’s 2013 legal update webinar will ensure you are not only up to date on the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 but will also clarify and fully explain other MSPMedicare Secondary Payer Act compliance topics, such as Medicare Advantage Plans, new conditional payment options, recent MSPMedicare Secondary Payer Act case law, as well as an overview of other legislative activity with regard to MSPMedicare Secondary Payer Act reform. After attending our webinar, you can be sure you are fully up to date on 2013 MSPMedicare Secondary Payer Act trends! To view our recent ExpertInsights video on the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, please click here.

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.

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

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By Settlement Solutions, February 5, 2013 10:07 am

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 reforms certain aspects of the MSPMedicare Secondary Payer Act and the MMSEAMedicare Medicaid and SCHIP Extension Act. While the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not directly broach how to protect Medicare’s interests with regard to any future medical component, it does directly reform components of the conditional payment reimbursement process and MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act.

Conditional payments are allowed under the MSPMedicare Secondary Payer Act when the primary payer does not make payment promptly. However, Medicare makes the payment “conditioned” upon reimbursement by the primary payer. Essentially, these are payments made by Medicare that the primary payer is responsible for, and as a result, Medicare is owed the right to reimbursement. If Medicare conditional payments are not reimbursed, Medicare has the right to sue for double damages. Due to this priority right to recover, Medicare conditional payments are sometimes referred to as a “super lien.”

Under the MMSEAMedicare Medicaid and SCHIP Extension Act, liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance or plans are required to report the assumption of ongoing responsibility for medical treatment as well as settlements, judgments, and awards with Medicare beneficiaries. A graduated scale for the requirement to report these claims has been implemented based on the settlement amount. The purpose behind MIRMandatory Insurer Reporting is to enable the CMSCenters for Medicare and Medicaid Services to have visibility into settlements occurring with Medicare beneficiaries as well as a record of cases where ongoing responsibility exists, which is important for proper coordination of benefits. Awareness of these requirements is important since there is the potential for a $1000 per day/per claim penalty for the failure to report.

Note that President Obama signed the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 into law on January 10, 2013; therefore, when the “enactment date” is referred to, it shall mean the aforementioned date.  The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 was passed attached to Medicare IVIG access bill in H.R. 1845. For a full copy of H.R. 1845, please click here.

The following section will address some of the issues that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 seeks to resolve with regard to conditional payments and MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 can be broken down into 5 major components. While addressing each component, we will also answer frequently asked questions for each topic.

1)      New Conditional Payment Resolution Process

Parties entering settlements with Medicare beneficiaries have been all too familiar with long wait times when trying to finalize conditional payment amounts with CMSCenters for Medicare and Medicaid Services, as well as being unable to receive a final demand until after settlement.

There is good news on the horizon. In 9 months from the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date (on or about October 10, 2013), CMSCenters for Medicare and Medicaid Services will be implementing a new process to provide a final conditional payment amount prior to settlement. It will be available online, and there will be stricter timelines for when CMSCenters for Medicare and Medicaid Services must provide the demand amount.

This is how it will work: anytime 120 days prior to a settlement, judgment, or award, you notify CMSCenters for Medicare and Medicaid Services of your expected settlement date and amount. During this time, conditional payment information will be available on a “website.” Payments made by CMSCenters for Medicare and Medicaid Services must be posted to the website no later than 15 days from the payment date.

Within 65 days from the time CMSCenters for Medicare and Medicaid Services receives notice, a “statement of reimbursement amount” will be available for download- which can be considered the final demand, as long as you are in the “protected period.”  The “protected period” means 65 days after CMSCenters for Medicare and Medicaid Services has received notice of your settlement, judgment, or award; however, CMSCenters for Medicare and Medicaid Services can extend the 65 day period for a an additional 30 days only under exceptional circumstances, and exceptional circumstances cannot be more than 1 percent of cases. CMSCenters for Medicare and Medicaid Services will provide this in a format where the final demand is time and date stamped and settlement must occur within 3 business days of downloading the statement or it will no longer be valid as a final demand.

If you want to dispute the conditional payment amount, you should provide CMSCenters for Medicare and Medicaid Services with a proposed resolution amount along with an explanation of the reason for the adjustment. CMSCenters for Medicare and Medicaid Services then has an 11 business day window in which they can do the following in response to the proposed resolution:

a)      Not respond within 11 days of the proposed resolution. In that case, the proposed resolution is deemed accepted by CMSCenters for Medicare and Medicaid Services.

b)      CMSCenters for Medicare and Medicaid Services can respond within 11 business days and state that they disagree with the proposed resolution.

c)      Another option is for CMSCenters for Medicare and Medicaid Services to respond within the 11 business day period and propose an “alternate discrepancy resolution.”

In addition to the dispute process just described, CMSCenters for Medicare and Medicaid Services will also need to promulgate regulations around creating a formal appeals process.

 FAQs:

Q. Which website is being referred to? Is it the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not specify if this website will be an enhanced version of the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, or if it will be a new website. However, it does state that the website will be a form of “successor technology.” We are hopeful that the website will provide more enhanced functionality than the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, which has some limitations, such as requiring you to have a case number before being able to use the portal for a particular case.

Q. What is considered official notification to CMSCenters for Medicare and Medicaid Services of a settlement, judgment, or award under this section? 

A. How notice is to be made under this section is not clear. Currently, CMSCenters for Medicare and Medicaid Services is notified of settlements through calls to the COBCCoordination of Benefits Contractor, as well as through MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act. Therefore, it is not clear if either or both of these types of notifications will suffice as “adequate notice.” The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 also does not specify if a separate notification will need to be made through this website.

Q. Isn’t requiring settlement to occur within 3 business days of downloading the final demand a bit fast? 

A. Yes, it is fast. However, it does seem that if the parties do not end up settling within 3 business days, that they can simply re-download a new time and dated stamped “statement of reimbursement amount” when settlement is about to occur.

Q. What is the “alternate discrepancy resolution” that CMSCenters for Medicare and Medicaid Services can propose if they do not agree with your proposed dispute on the conditional payment amount?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not describe this at all. One could guess that this will be an informal, non-binding method to resolve the dispute. If the parties cannot agree, then the new appeals process will likely provide a different avenue and a more formal administrative appeal if you are not satisfied with the result during the informal dispute process.

2)      Threshold for Exemption from Conditional Payment Reimbursement and Reporting

Finding it frustrating to deal with conditional payments and MIRMandatory Insurer Reporting on nominal, nuisance value cases that you just want to close out quickly? Not only has the industry been voicing this concern, but CMSCenters for Medicare and Medicaid Services has also been under scrutiny for conditional payment collections on these cases. It has come to light that in some cases, it actually costs more for CMSCenters for Medicare and Medicaid Services to recover a conditional payment than the amount they paid “conditionally.”

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 requires the DHHSDepartment of Health and Human Services to calculate and publish a single threshold amount for settlements, judgments, awards, or other payments in which they will not seek reimbursement of conditional payments and you will not have any MIRMandatory Insurer Reporting obligations. They will publish this amount by November 15^th each year, and this will begin in the year 2014. The threshold amount will be the amount where CMSCenters for Medicare and Medicaid Services can demonstrate that their costs of recovering the conditional payments equal the collections.

 FAQs:

Q. Does this threshold also apply to MSAsMedicare Set-Asides or to the consideration of Medicare’s interests in regard to future medicals? 

A. No, it only applies to conditional payments and MIRMandatory Insurer Reporting.

Q. What will the threshold be? Do any thresholds currently exist for conditional payments?

A. Currently, liability settlements under $300 are exempted from reimbursement of conditional payments to CMSCenters for Medicare and Medicaid Services. It is unclear what the new threshold will be; however, many have commented that this threshold is much too low.

3)      Discretionary Fines for noncompliance with MIRMandatory Insurer Reporting

The threat of a $1000 per day/per claim fine for noncompliance can be pretty scary when one error in a quarterly report can result in a $90,000 penalty! It also seemed rather arbitrary that the fine was mandatory and there were no formal rules/guidelines as to when CMSCenters for Medicare and Medicaid Services could and could not impose fines.

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 strikes the portion of the MMSEAMedicare Medicaid and SCHIP Extension Act law that states that a RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA “shall be subject. . .” In its place, the language now says “may be subject.” This replacement language essentially makes fines for noncompliance with MIRMandatory Insurer Reporting discretionary instead of mandatory.

But first, within 60 days of the enactment date of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, CMSCenters for Medicare and Medicaid Services must solicit comments from the industry in the Federal Register which practices should be considered an event subject to sanctions. After considering the public comments, we will see some finalized rules regarding which practices by an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA would be subject to sanctions.

FAQs:

Q. What will the industry consider to be practices that are subject to sanctions? Will the main standard be “good faith” efforts on behalf of the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA?

A. The commentary from the industry as to what actions should be subject to sanctions will certainly be interesting. One would think that CMSCenters for Medicare and Medicaid Services would carve out an exception to being sanctioned if the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could document good faith efforts to report the claim(s). Additionally, CMSCenters for Medicare and Medicaid Services may implement some more specific practices that would be subject to sanctions. For example, CMSCenters for Medicare and Medicaid Services has repeatedly stated that sending bad data with errors is not considered compliance. If an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA was notified by CMSCenters for Medicare and Medicaid Services that the data contained errors, and over a period of time it is demonstrated that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA did not attempt to correct the data, that may be a practice subject to sanctions.

Q. CMSCenters for Medicare and Medicaid Services recently announced its plans to audit group health plans (GHPsGroup Health Plans) for compliance with MIRMandatory Insurer Reporting. Are non group health plans (NGHPsNon Group Health Plans) next to be audited? Has CMSCenters for Medicare and Medicaid Services ever issued fines? 

A. To our knowledge, CMSCenters for Medicare and Medicaid Services has not yet issued any fines for noncompliance with MIRMandatory Insurer Reporting for NGHPsNon Group Health Plans. However, CMSCenters for Medicare and Medicaid Services recently rolled out a work plan to audit GHPsGroup Health Plans for compliance with MIRMandatory Insurer Reporting in 2013. It would seem that NGHPsNon Group Health Plans will likely be audited next and that parties not in compliance would be subject to fines. Therefore, fines are likely to be issued in the near future.

 4)      Use of SSNsSocial Security Numbers/HICNs in MIRMandatory Insurer Reporting

Many RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA, particularly those that deal with liability claims, have voiced concern over the difficulty to obtain a Medicare beneficiary’s SSNSocial Security Number. Without an SSNSocial Security Number, an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA cannot report the case under MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 makes reporting SSNsSocial Security Numbers optional.

However, it is very important to note that CMSCenters for Medicare and Medicaid Services has been given an extended period of time to implement this. They have 18 months after the enactment date to publish rules to implement this, and they can file extensions for up to 1 year if certain criteria are met.

 FAQs:

Q. How will CMSCenters for Medicare and Medicaid Services be able to identify beneficiaries without these identifiers?  

A. It has been estimated that CMSCenters for Medicare and Medicaid Services will need to come up with some kind of new unique identifier and likely overhaul current systems to implement this.  

Q. Since this may take a few years to be implemented, what can RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do in the meantime while SSNsSocial Security Numbers are still required to be reported in those situations where it is unable to obtain a beneficiary’s SSNSocial Security Number?  

A. CMSCenters for Medicare and Medicaid Services has provided the industry with a method to document and demonstrate good faith efforts to obtain SSNsSocial Security Numbers. Additionally, there has been some recent case law where a carrier refused to tender a settlement due to the beneficiary not providing their SSNSocial Security Number. In those cases, the courts sided with the RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA and required the beneficiaries to provide their SSNSocial Security Number so that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could be in compliance with the MMSEAMedicare Medicaid and SCHIP Extension Act and not subject to fines. If needed, RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can document their good faith efforts to obtain SSNsSocial Security Numbers and/or bring the matter to court if the beneficiary refuses to provide their SSNSocial Security Number.

5)      New Statute of Limitations for Conditional Payments

Previously, the statute of limitations for CMSCenters for Medicare and Medicaid Services to recover conditional payments was unclear. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 provides that if CMSCenters for Medicare and Medicaid Services is given notice of the settlement, judgment, award or other payment, then they may not seek recovery of that conditional payment any later than 3 years after notice is given. This is scheduled to take effect 6 months after the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date.

 FAQs:

Q. Isn’t a final demand from CMSCenters for Medicare and Medicaid Services “final?” Why would you be concerned with a statute of limitations if you reimbursed a final demand from CMSCenters for Medicare and Medicaid Services?  

A. Technically, the term “final demand” is a misnomer. CMSCenters for Medicare and Medicaid Services still has the right to discover, research and recover conditional payments owed even after a final demand is paid. This new statute of limitations will give a clear timeline of when CMSCenters for Medicare and Medicaid Services can recover conditional payments as long as you notify CMSCenters for Medicare and Medicaid Services of your settlement, judgment, or award. Now, 3 years after notice is given, you will be in the clear.

PMSI will keep you updated on any developments in regard to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011. For questions on the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and how PMSI can assist, please contact Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP at Heather.Schwartz@pmsisettlement.com.

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By Settlement Solutions, August 20, 2012 9:24 am

2012 has been a busy year in the area of MSPMedicare Secondary Payer Act compliance and you can be sure that court, state, and CMSCenters for Medicare and Medicaid Services interpretations of this complicated law will continue to evolve.  If you want to assure you are completely up to date on this year’s new MSPMedicare Secondary Payer Act case law, liability requirements and MSPMedicare Secondary Payer Act trends, plan to attend PMSI’s 2012 legal update webinar!  The webinar will not only ensure you are up to date on the latest happenings in the area of MSPMedicare Secondary Payer Act compliance, but will clarify and fully explain new case law and how it may impact claim settlements.  Highlights from the webinar include:

2012 MSPMedicare Secondary Payer Act Case Law

• Bruton v. Carnival Corp., wherein a Florida court found that although the settlement documents spoke to compliance with the MSPMedicare Secondary Payer Act, because an MSAMedicare Set-Aside was not specifically mentioned, it was not required. I will discuss how settlement documents are key in ensuring MSPMedicare Secondary Payer Act compliance.
• Oregon State Bar Prof. Liability Fund v. DHHSDepartment of Health and Human Services, an attorney legal malpractice insurer sought a court’s opinion as to whether it is 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 and required to report claims information to Medicare. Will more entities seek exemption from reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act from the courts in the future?

Conditional Payment Update

• A recent Third Circuit Case as well as a recent CMSCenters for Medicare and Medicaid Services memorandum provides Medicare Advantage Plans with the same rights of recovery as traditional Medicare and also allows for a private cause of action for double damages if conditional payments are not reimbursed! I will explain how this update may affect settlements and how you can protect yourself from this private cause of action.

CMSCenters for Medicare and Medicaid Services liability updates

• CMSCenters for Medicare and Medicaid Services attempts to formalize rules surrounding the MSPMedicare Secondary Payer Act and future medicals. Will LMSAsLiability Medicare Set-asides or another form of allocation be required in the near future?

Legislative Update

• A WCMSAWorkers' Compensation Medicare Set-Aside bill seeks to exempt all workers’ compensation settlements under $25,000 from any compliance with the MSPMedicare Secondary Payer Act. Will this bill pass?

Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP will offer her expertise in reference to the above topics on Tuesday, September 18, 2012 from 1 PM -2 PM EDT.

This webinar is complimentary and 1 hour of CEU and CLEContinuing Legal Education credit has been requested 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: