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By Settlement Solutions, June 19, 2013 8:24 am

CMSCenters for Medicare and Medicaid Services has issued an alert notifying the industry of a reorganization of the MSPMedicare Secondary Payer Act sections of its website. There appears to be no substantive changes to the MSPMedicare Secondary Payer Act program, but rather what appears to be an ongoing reorganization and consolidation of information.

Below is the text of the alert:  

The Coordination of Benefits and Medicare Secondary Payer Recovery sections on the Medicare tab of the CMSCenters for Medicare and Medicaid Services.Gov Web Site have been redesigned and restructured.  As part of this restructuring, all pertinent information from the MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments.info web site has been incorporated into this new design and web page links have changed. Please visit the Coordination of Benefits & Recovery section of CMSCenters for Medicare and Medicaid Services.gov to see our new web pages. 

CMSCenters for Medicare and Medicaid Services provides the ability for you to be automatically notified when changes are made to the Coordination of Benefits & Recovery Overview web pages.  If you have not already signed up for these notifications, please click the Subscription Sign-up Notification link found in the Related Links section of the web pages.   When new information regarding Coordination of Benefits & Recovery are available, you will be notified. These announcements will also be posted to the What’s New page of the corresponding web pages.

The following short-cuts have also been created for each of the new web pages:

Coordination of Benefits & Recovery Overview: http://go.cmsCenters for Medicare and Medicaid Services.gov/cobro  

Attorney Services:  http://go.cmsCenters for Medicare and Medicaid Services.gov/attorney

Beneficiary Services:   http://go.cmsCenters for Medicare and Medicaid Services.gov/bene

COBA Trading Partners:  http://go.cmsCenters for Medicare and Medicaid Services.gov/cobatp

Employer Services:  http://go.cmsCenters for Medicare and Medicaid Services.gov/employer

Insurer Services:  http://go.cmsCenters for Medicare and Medicaid Services.gov/insurer

Prescription Drug Assistance Programs:   http://go.cmsCenters for Medicare and Medicaid Services.gov/pdap

Provider Services:   http://go.cmsCenters for Medicare and Medicaid Services.gov/provider

Mandatory Insurer Reporting For Group Health Plans:  http://go.cmsCenters for Medicare and Medicaid Services.gov/mirghp 

Mandatory Insurer Reporting For Non Group Health Plan:  http://go.cmsCenters for Medicare and Medicaid Services.gov/mirnghp

Workers’ Compensation Medicare Set-Aside Arrangements:  http://go.cmsCenters for Medicare and Medicaid Services.gov/wcmsaWorkers' Compensation Medicare Set-Aside

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By Settlement Solutions, May 21, 2013 3:35 pm

We previously blogged about a case wherein Medicare was unable to recover conditional payments due to the fact that the claimant sought unauthorized treatment under Texas workers’ compensation law. Please click here to read our prior blog.

On appeal, the Firth Circuit has affirmed this decision; please see Caldera v. The Insurance Company of the State of Pennsylvania, 2013 U.S. App. LEXIS 9706 (May 14, 2013).

It is likely that this decision will be appealed to the U.S. Supreme Court, and until such time the Supreme Court decides whether or not to hear the case, this decision remains controversial. Some view this decision as a burden shift to the taxpayer, due to the fact that Medicare was unable to recover payments where a claimant did not exhaust his state workers’ compensation administrative remedies.

Others view this case as a wise decision and beneficial for workers’ compensation carriers due to the fact that the treatment sought by the claimant in this case was unauthorized under Texas workers’ compensation; therefore the workers’ compensation carrier did not become primary and responsible for repayment to Medicare.

PMSI will continue to follow this case and will keep its subscribers updated on any developments with regard to a possible appeal to the U.S. Supreme Court.

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By Settlement Solutions, May 6, 2013 4:48 pm

As of January 1, 2013, Medicare expanded its Part D guidelines to include coverage for benzodiazepines and barbiturates for certain conditions. For more information on this new expanded coverage, when it will be covered, and how this coverage change is predicted to apply to WCMSAs, please see our prior blog here.

CMSCenters for Medicare and Medicaid Services recently issued an alert on their website which provides the date for which this new coverage guideline is to affect WCMSAs: June 1, 2013. Below is the text of the alert:

Effective June 1, 2013, all  Workers’ Compensation Medicare Set-Aside (WCMSAWorkers' Compensation Medicare Set-Aside) proposals submitted to CMSCenters for Medicare and Medicaid Services for a review of the adequacy of the proposal amount are to include the pricing of benzodiazepines and barbiturates, where appropriate.

Please note that WCMSAWorkers' Compensation Medicare Set-Aside cases submitted to CMSCenters for Medicare and Medicaid Services  before June 1, 2013, closed due to missing, incomplete and/or inadequate supporting documentation (or any  other reason), and subsequently re-opened after June 1, 2013, will also be subject to a review that includes the pricing of benzodiazepines and barbiturates.

As noted in our prior blog, the silver lining of this change is that the majority of barbiturates and benzodiazepines on the market have generic formulations which are fairly inexpensive. Therefore, if generics are prescribed, the impact of this change should not be significant to WCMSAs.

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By Settlement Solutions, April 24, 2013 4:25 pm

Medicare Advantage Plans (MAPsMedicare Advantage Plans), also known as Medicare Part “C”, are private insurance plans which provide Medicare benefits to beneficiaries. A beneficiary may opt to receive their Part A and B Medicare benefits through a MAPMedicare Advantage Plan rather than through traditional Medicare. Often times, MAPsMedicare Advantage Plans offer more flexibility in benefit options and pricing than traditional Medicare. Additionally, all Part D prescription benefits are provided by MAPsMedicare Advantage Plans as Medicare does not provide Part D prescription benefits directly. It has been estimated that approximately 25% of Medicare beneficiaries are enrolled in some type of MAPMedicare Advantage Plan, and that number is expected to increase over time.

If you handle workers’ compensation or liability claims, you may be wondering what MAPsMedicare Advantage Plans have to do with recovery rights under the MSPMedicare Secondary Payer Act or the extent of those rights.   

It has been questioned for some time whether MAPsMedicare Advantage Plans simply have a contractual right to recover conditional payments made when a primary payer exists, or if they have similar rights to Medicare, in that they could pursue an action for double damages for a primary payer’s failure to reimburse Medicare conditional payments. Below is a brief timeline which displays where we are today and references the recent impactful cases, Parra v. PacifiCare of Arizona, and In Re Avandia Marketing as well as CMSCenters for Medicare and Medicaid Services’ input on this issue through a memorandum.   

December 5, 2011- CMSCenters for Medicare and Medicaid Services issues a memorandum in support of MAPsMedicare Advantage Plans having the right to collect for payment of services where Medicare is not the primary payer. CMSCenters for Medicare and Medicaid Services even goes as far as to state that MAPsMedicare Advantage Plans can exercise the same rights of recovery that the Secretary exercises under the existing MSPMedicare Secondary Payer Act regulations. This memorandum was likely prompted by the initial decisions in Parra and In Re Avandia which found that MAPsMedicare Advantage Plans simply had a contractual right to recovery, and did not have the same rights as Medicare to recover conditional payments. For a copy of this memorandum, please click here. 

July 12, 2012- The District Court decision from In Re Avandia is overturned in the Third Circuit Court of Appeals. The Third Circuit finds that MAPsMedicare Advantage Plans have the same rights to recovery as Medicare, and additionally MAPsMedicare Advantage Plans have a right to pursue a private cause of action for double damages under the MSPMedicare Secondary Payer Act for conditional payments that are not reimbursed. To view our legal bulletin on this case, please click here.

April 15, 2013- The U.S. Supreme Court denies certiorari/review of the In Re Avandia case; therefore the decision in the Third Circuit stands.

April 19, 2013- The Ninth Circuit affirms the initial decision in the Parra case which found that MAPsMedicare Advantage Plans do not have the same rights to recovery as Medicare does and can recover conditional payments by way of their contract with the beneficiary.

So where are we today? Currently we have two circuits, the Ninth and Third Circuit, which have differing views on MAPMedicare Advantage Plan recovery rights. Both circuits agree that MAPsMedicare Advantage Plans have the right to recover conditional payments; however they disagree as to what extent MAPsMedicare Advantage Plans can utilize that right. We recently had the U.S. Supreme Court deny taking cert in the In Re Avandia case; therefore, even if Parra is appealed to the U.S. Supreme Court, it is unlikely that the Supreme Court will take the case. With the conflict among the circuits, eventually the Supreme Court will need to hear this issue or we will need formal legislation to definitively address the issue.

In the meantime, primary payers would be wise to err on the side of caution and ensure that MAPMedicare Advantage Plan demands are addressed, so as to not risk a private cause of action for double damages. Best practices in this time of uncertainty would be to question the Medicare beneficiary if they are currently or have ever been enrolled in a MAPMedicare Advantage Plan. With that knowledge, the primary payer can at least be aware of any potential conditional payment demands by that MAPMedicare Advantage Plan and seek to reimburse those payments before the risk for double damages sets in. Settlements that occur within the Ninth Circuit where the Parra case was decided is seemingly the only jurisdiction currently not subject to double damages, at least for now.

Based upon recent history, the status of MAPsMedicare Advantage Plans and their recovery rights under the MSPMedicare Secondary Payer Act is certainly going to continue to evolve, and PMSI will continue to stay abreast of any new developments.