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1. There are a lot of beneficiaries who are experiencing denials on unrelated claims. CMS isn’t taking much of a position but is lecturing that this is why accuracy of coding is so important. They are advising that the beneficiary should contact the COBC directly if claims are being inappropriately denied.
2. During Q&A someone asked whether rumors that liability reporting might be delayed beyond 10/1/11 were true. Barbara Wright responded that there have been several requests. CMS is considering those requests but no decision has been made.

Expect generic versions of Seroquel® to appear in Redbook® on 09/27/11, or very shortly thereafter.

The foundation was created to provide much needed assistance to Medicare beneficiaries facing MSP compliance issues resulting from an insurance settlement. In addition to offering a variety of low or no cost education and advocacy services, the foundation proposes to offer a solution to the high cost of for-profit professional administration and the unworkable situation faced by injured beneficiaries attempting to self-administer their Medicare Set-Aside Arrangements. The MSPCF will provide all of the same services currently provided by for-profit administrators at no charge to qualified beneficiaries.

The MSPCF will retain MEDVAL, one of the country’s oldest and most trusted MSP compliance and professional administration firms, to service the individual sub trust accounts. MEDVAL has contractually committed to contribute significant financial and operational support over the next five years while the foundation gains critical mass and widespread industry acceptance.

“This is a solution that is long overdue. For-profit administration is underutilized because the service is far too expensive for Payers and Plaintiffs. Self-administration has proven to be a tremendous burden to injured beneficiaries and has not achieved the goal of protecting the Medicare Trust Fund. By taking the profit motive out of MSA administration, eliminating sales commissions, driving down operating costs through technology and seeking charitable partnerships and willing corporate sponsors of this new business model, I believe the MSPCF is poised to permanently shift the way MSA funds are administered,” commented Board of Trustee member and MEDVAL General Counsel Jennifer C. Jordan, Esq.

The Medicare Secondary Payer Charitable Foundation is independent of its sponsors and vendor neutral. Any CMS approved MSA over $25,000, from any vendor, payer, claimant or attorney, will be accepted for administration subject to the terms and conditions of the master trust and joinder agreements.

The Medicare Secondary Payer Charitable Foundation is a Maryland based not-for-profit corporation. For additional information, please email info@mspcf.org or visit www.mspcf.org.

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The article can be seen at the Claims Advisor website.

Secondary Payer Protection
Medicare as a secondary payer must be protected for all liability claims, in and outside workers’ comp.

In July 2001, the Centers for Medicare and Medicaid Services (CMS) circulated the “Patel memorandum” (authored by Pashar Patel) notifying the P&C industry that Medicare set-aside allocations (MSAs) were now going to be “recommended” on workers’ compensation claim settlements. Since then, there has been confusion regarding the best way to take Medicare’s interests into consideration on non-workers’ comp claims (i.e., liability case settlements).

The problem is that CMS hasn’t provided guidelines for a liability Medicare set-aside allocation review program. The workers’ comp guidelines established by CMS for the use of MSAs in case settlements don’t apply to liability claims. Still, the Medicare Secondary Payer law clearly applies to non-WC settlements.

With the upcoming Medicare, Medicaid and SCHIP Extension Act (MMSEA) Section 111 reporting requirements for liability claims that take effect on January 1, 2012, insurance carriers, self-insured entities, and captive insurers want to get some clarity on the issue.

A Brief History of MSP

Medicare Secondary Payer (MSP) is the term used by Medicare when it is not responsible for paying first. The original federal legislation that established Medicare’s protection as a secondary payer when a primary payer exists is the Omnibus Budget Reconciliation Act of December 5, 1980. Further codification was added in Title 42 of the United States Code, as well as the Code of Federal Regulations (CFR), specifically, Section 411.20, which states that applicable lines of P&C insurance impacted by this law include:

1.Liability insurance (including self-insurance)
2.No-fault (PIP) insurance
3.Workers’ compensation laws and plans.

From this section of the CFR, it is clear that the MSP does apply to liability claims as well as workers’ compensation claims. Liability claims were included because settlements of these types of claims always involve irrevocable closure of future medical benefits (as both the “special damages” and “general damages” are always resolved simultaneously), and the liability area is approximately four times the size of the domestic WC market. Indeed, to exclude liability claims would have left a huge hole in Medicare’s secondary payer protection. That certainly was not the intention of Congress when it extended secondary payer protection to Medicare.

The Medicare, Medicaid and SCHIP Extension Act (MMSEA), signed on December 29, 2007, mandates that claims involving Medicare-entitled individuals be reported so Medicare can pursue its right of conditional payment recovery in instances in which it made payment but a primary payer exists.

Section 111 of the MMSEA reporting was mandated for a primary reason: to alert CMS when the responsible reporting entity has claims involving Medicare-entitled individuals. Medicare can then check to determine if it has made any conditional payments on these cases. If it has made any that are consonant with the ICD-9 codes of the primary payer’s claim, it will pursue its right of recovery against the primary payer.

Four Approaches to Set-Asides
There are several options when settling a case that involves a Medicare-entitled person or someone who will become Medicare-entitled at a time when the anticipated Medicare-covered future care will be needed. Much has to do with a risk management analysis of the claim and the insurer’s tolerance for future exposure. Below are four approaches that can be considered the “risk management continuum” from the least defensible position to the most defensible.

1.If there is a low likelihood of future treatment related to the injury being settled, do not obtain an allocation, and pray that the claimant does not submit any future treatment bills to Medicare related to the injury for which you settled the claim.

2.Perform a “self-allocation” and in the settlement document stipulate a certain amount of the settlement dollars for future medical treatment.

3.If there is negligence on the part of the defendant and a great deal of future medical exposure post-settlement, a professionally formulated allocation may be the best way to take Medicare’s interests into consideration.

4.If the settlement is sufficiently large, consider not only a professional allocation but also a submission to CMS for their review and approval (depending upon the predilection of the individual CMS regional office where the claim is domiciled).

What Must Be Considered
Medicare Secondary Payment compliance can be thought of as a three-legged stool.

1.MMSEA Section 111 reporting
2.Medicare conditional payment reimbursement requirements
3.Future protection of Medicare post-settlement (MSAs)

The first two legs of the stool are statutory requirements.

MMSEA Section 111 reporting applies to all responsible reporting entities (RREs), essentially any company that is paying on a claim involving a Medicare-entitled claimant. CMS has required quarterly reporting of workers’ comp cases since January 1, 2010, and quarterly reporting of liability claims will become mandatory beginning on January 1, 2012. Each individual claim report may contain up to 132 data elements that must be captured in the underlying claims system of the RRE. If an RRE fails to report claims involving Medicare-entitled people, the law calls for a $1,000 civil money penalty per day, per file with no ceiling.

In instances where it has made conditional payments, Medicare has a priority right of recovery. Further codification was added in Title 42 of the United States Code, as well as the Code of Federal Regulations (CFR), specifically 1395y(b)(2)(A)(ii) and Section 411.21-411.54. Medicare is authorized to make primary payments when it is a secondary payer only if a primary payer has yet to make “or cannot be reasonably expected to make” a prompt payment (within 120 days after receipt of the claim). Conditional payments are named so because they are conditioned upon reimbursement to Medicare.

The third leg of the stool, future protection of Medicare post-settlement, is a set of guidelines. When queried, CMS has indicated that a liability allocation is one way—but not the only way—to protect Medicare’s future interests post-settlement. Since there are no present CMS guidelines for liability settlements on claims involving Medicare-entitled people, a liability MSA should not be thought the same as a workers’ compensation MSA.

There are multiple factors to consider that are unique to liability cases. These include policy limits, comparative negligence, contributory negligence, procurement costs, and liability jurisprudence.

A few things to keep in mind when considering a set-aside allocation include:

A.Medicare can be listed as a payee on the settlement check. However, this is an expedient for the payer that usually results in delaying the distribution of settlement proceeds to the claimant as the Medicare right of recovery amount is determined. The amount, if any, of conditional payments should be known or reasonably estimated prior to cutting the settlement check. Otherwise, if a large enough Medicare right of recovery exists, the settlement may be vitiated as a result of the amount owed to Medicare.

B.It takes time to determine the amount Medicare may claim as conditional payments. The investigation should be initiated six months prior to settling a case, if possible. A week before mediation or trial is not the first time to begin considering Medicare’s interests. Also, if future Medicare-covered treatment is likely post-settlement, an allocation is in order.

C.Ideally, Medicare’s right of recovery for conditional payments should be resolved prior to settling the general and special damages. The settlement may include a fully funded future treatment plan with all probable and likely services included, along with annuity (structured) payments flowing into a professionally managed custodian account.

D.CMS can even be approached on large liability settlements for review and approval, but it depends on the office you are dealing with. For instance, the CMS regional office in Philadelphia will most likely review any liability allocation sent to it, but the regional office in San Francisco will not accept any liability allocations for review. Therefore, you must know the proclivities of the CMS office when deciding to submit liability allocations for review and approval.

Points C and D above essentially constitute the gold standard for protecting Medicare’s interests in liability settlements. However, there are costs and downsides associated with taking these approaches on every case. Obviously, this type of comprehensive consideration isn’t practical for every settlement and should not be the norm.

Individual case factors will weigh heavily on how to apply a program designed to logically maintain the affirmative legal obligations Medicare enjoys as a secondary payer. So beware of the one-size-fits-all approach advocated by some MSA providers.

John D’Alusio, ARM, SCLA is an executive vice president with MEDVAL, a national MSA provider. He has over 30 years experience in the property/casualty insurance industry and is a speaker and author on MSP/MMSEA. jdalusio@medval.com, www.medval.com

Printed from: http://www.claimsadvisor.com/articles/secondary-payer-protection/

Copyright © 2011 Claims Advisor, Inc. All rights reserved.

Our firm currently has a claim where the claimant has a reasonable expectation of Medicare entitled in the next 30 months but the settlement amount is less than 250K. We had an MSA prepared and it is our position that in doing so, we have taken Medicare’s interests into consideration and that is all we need to do. Our client, however, insists that is not the case. My question is: is it?

It is all you need to do as far as I am concerned from a MSP compliance standpoint, but as you will recall from the presentation, you can do more with regard to funding and administration to make sure that the money meets its intended purpose and Medicare not placed in a position in the future of making payments even though its interests were considered and funded at settlement. You cannot force CMS to opine as to the sufficiency if doesn’t meet the criteria for review, and in fact CMS has complained recently that about a third of its submissions are non-threshold and rejecting those is bogging down its process. Another thing I’ve seen is adopting a statement of understanding as an appendix to the settlement agreement, outlining the responsibilities and understanding of all parties with regard to the MSP. Like I said in the presentation, adopt a level of compliance that you are fully prepared to defend if and when the time comes – that’s all you can do right now.

According to the presentation, an insurer is required to report a settlement. It is my understanding that a hospital is required to report any possible liable third parties that are discovered to CMS; however, is a hospital required to notify CMS at the time of settlement (if the hospital knows of the settlement) that the Medicare beneficiary is about to receive settlement proceeds? Or is it sufficient for a hospital to inquire of the patient/their representative as to whether any Medicare liens have been satisfied? (The general practice at the hospital in question is to wait to receive payment until any outstanding Medicare lien is satisfied).

The hospital has no MMSEA reporting requirement of a third party liability settlement where it is not the RRE. As a Medicare provider it has an obligation to ask all the right questions about a potential primary payer situation and report those back to Medicare, but no obligation that I am aware of to continue to follow the matter and report developments [but that is not an area of Medicare knowledge that I am proficient in so don't hold me to that]. I’m assuming you are referring to a situation where the hospital is holding a lien against the settlement rather than accepting the Medicare payment pursuant to chapter 2 of the MSP manual § 40.2. In that case, the general practice is prudent because if the hospital accepts payment from the settlement proceeds prior to Medicare being reimbursed, it is subject to a reimbursement claim pursuant to 42 USC 1395y(b)(2)(B)(ii) as a party in receipt of settlement funds.

To what degree will weak causation assist in minimizing the amount of an MSA (e.g. toxic tort case where it is questionable whether case would even survive summary judgment)?

Again I reiterate the significance of the Bradley v. Sebelius decision in the 11th circuit [621 F3d 1330]. Unless and until CMS understands that full recovery in liability settlements is uncommon and influenced by a number of legal and financial factors, we will continue to struggle with its insistence that it is entitled to full reimbursement from dollar 1 for all related medical, past and future. For those accepting of the fact that Medicare does have a future interest to protect, I merely recommend that they allocate with the means of their settlements and explain as much as they can within the settlement docs what MSP compliance measures they were able to provide. Break down the settlement amount into its component parts and the fair & reasonable portion that represents medical is what it is. Artificially inflating other claims will basically push CMS to assert its usual claim that it is not bound by such designations. Until we get more definitive guidance from CMS, Congress or the Courts, we can only adopt a defensible position and hope for a reasonable court and a better understanding of the MSP when the time comes, if it comes.
If funds are set aside and the beneficiary does not survive long enough to spend the money on treatment, who owns the remaining money?

Medicare only has rights to reimbursement for payments made, so after repaid, the money reverts to the estate of the deceased unless in some kind of a custodial situation where the carrier retained a reversionary interest or perhaps a pooled trust situation where the funds remain with the trust for the benefit of other trustees.

Jane Doe is seriously injured on 1/1/11 and incurs $250,000 in medical expense in the first 2 weeks of treatment. The adverse driver is clearly at fault and has a liability policy limit of only $100,000. The insurer wants to settle for the policy limit on 2/1/2011.before any of the medical expenses have been paid by Medicare. Can I request the conditional payment letter, which will presumably show “0″ in payments, and settle case and allow Medicare to pay the medical expenses after the settlement is completed?

You likely can’t outrun or defraud Medicare simply by acting quickly. MSPRC will never issue a demand with 30 days not matter what the circumstances, and until a demand is made, you cannot make a final payment, even if it is zero. They know the providers have 180 days to submit billing and they hold out in all cases as long as they can to make sure that they captured as much billing as they can before making demand. Because there is a demonstration of Medicare payments which would trigger the reporting to the COBC under 42 CFR 411.25 anyway, you’d be hard pressed to convince CMS that you disbursed funds unknowingly and not find yourself on the other end of a reimbursement action as a person in possession of funds from the settlement.

Do Medicare Advantage Plans have to act on behalf of Medicare to enforce Medicare’s rights to recover settlement proceeds? And, if so, to what extent are Medicare Advantage Plans obligated to pursue such Medicare rights? Can Medicare Advantage Plans settle claims without Medicare’s approval and, if so, to what extent do they have to pursue such claims?

Interestingly, the answer is yes & no. MA Plan is secondary and obligated to coordinate benefits and seek reimbursement where applicable, but does not have the power to file a claim in court for recovery. There’s a technicality in the Medicare statute that only confers all of the powers of the “Secretary of Health and Human Services” upon the MA Plan, meaning that it may make a conditional payment, charge interest and waive rights, but cannot bring an action, subrogate or seek recovery within the 3 year period beginning 3 years from the date of services (that no one uses) because those sections of the MSP state that the “United States” may…. There have been 2 cases in just the past few months that discuss the issue: Parra v. PacifiCare [2011 U.S. Dist. LEXIS 33630] and Humana v. Reale [2011 US Dist LEXIS 8909]. So in the end, it appears that not only is the MA Plan able to but required to purse recovery & completely authorized to negotiate without any input from Medicare, but should it need to pursue court action, the MS Plan needs to rely upon contract law in state court or possibly refer the claim to the DOJ where I assume that a claim for double damages would be possible since a recovery of a Medicare payment is still involved.

Hospitals can choose to bill the liability carrier, in lieu of Medicare, where liability insurance is available. You discussed the issue of future medicals related to the accident, incurred after the date of accident. If Medicare were to pay for treatment related to the accident (after the settlement), would the hospital still be a possible liable party from which Medicare could try to recover its payments? Or, if the hospital accepted its payment at a time when Medicare did not have a lien, would the hospital be free of any such liability?

If the hospital lien was satisfied from settlement proceeds and Medicare has a claim for conditional payment reimbursement, it may seek repayment from anyone in possession of settlement funds pursuant to 42 USC 1395y(b)(2)(B)(iii) and 42 CFR 411.24(g) which includes the hospital. What we don’t have is any evidence of CMS successfully asserting claims for post-settlement conditional payments, only its intent to do so as demonstrated in Stricker.

Medicare billing policy permits providers like 180 days to submit billing, so just because you managed to conclude a claim prior to Medicare being billed for related services does not diminish its reimbursement rights.

I just settled a liability bodily injury case for $125K at Friday’s mediation (4/15/11). The plaintiff had health insurance, which covered his treatment/oral surgery. Do I need to report this settlement to Medicare now?

MMSEA Section 111 reporting would not apply since does not start until 1/1/12 for claims settlement on or after 10/1/11. Reporting under 42 CFR 411.25 wouldn’t apply since there is no demonstration that Medicare made payment. While you could voluntarily report to COBC to make sure Medicare wasn’t owed, there does not appear to be any obligation to do so.

I am a Plaintiff’s attorney. I received a jury verdict and the insurance company sent me two checks, one for the Medicare conditional amount and one for the balance. The conditional payment was payable to my firm and Medicare, and I forwarded it to Medicare. I then received the final settlement letter, which was less than the conditional payment amount. I called Medicare and was told that a “Closing letter” would be sent, and 14 weeks later, the balance of the conditional payment minus final settlement would be sent back to me for my client.
3 questions:

Are you familiar with the closing letter, 14 week wait scenario?
Not surprised actually. If just making a conditional payment inquiry, MSPRC has 45 days to respond, if to do nothing but notify the parties that it will be needing more time. On average, this process takes us 3 to 6 months to obtain a demand. If you’ve reached conclusion in 14 weeks, you are still better off than waiting for all settlement checks to be issued once demand finally made.

What can I do to expedite receipt of the balance?

Typically you want to initiate a conditional payment search prior to settlement so that the balls are in motion when the check sent for final endorsement. If MSPRC is getting hit cold with a check, 120 days is not surprising nor would I think unreasonable. However given that I’d be happy with 120 days from request to demand, I still think that the 3 party check makes them act faster.

You mentioned a CA case setting a 30 day limit for returning the balance. Can you foreword that cite?

Wall v. Leavitt [2008 US Dist LEXIS 23956] (note that the court didn’t say there was a 30 day limit, only that even 30 days in this case would have been reasonable since the funds were turned around in a record 11 days)

Some health care systems have fronting PL/GL policies from domestic U.S. insurers that are 100% reinsured by the systems’ offshore captive insurance companies. If the system is self-administering the claims, the U.S. insurer typically requires that the system pay the claimants directly for settlements. The systems realize that they should be the RRE in this situation, rather than the U.S. insurer. However, they have questions about how to populate certain reporting fields, specifically fields 72, 73, and 75 (see attached). Does the system use its own TIN, office code/site ID, and claim number, or the fronting insurance company’s TIN, office code ID, and claim number?

I think you need to review the Alert from April 5, 2010 (also may be implemented in the latest user guide under foreign RREs). If the system is making payments directly than it is the RRE and the answers to your data fields lie in the creation of the fake TIN in field 72 and utilizing the options to populate the other fields with zeros or spaces pursuant to the descriptions in the chart for the other fields. The form for the fake TIN is 9999xxxxx, the x’s representing a 5 digit number of the system’s selection.

With regard to “negotiating” the amount due on the conditional payment letter – you gave a “formula” to determine the ratio of procurement – I didn’t quite catch it all – will you please provide me with the formula…..it was atty fees + expenses…….

[(attorneys' fees + expenses) / total settlement amount] x Medicare demand

See 42 CFR 411.37

If you have a Plaintiff that claims they do not have Medicare, they have a letter that shows they have been denied SSDI, but a query regarding Medicare shows this Plaintiff eligible, how can you determine whether or not they actually have Medicare? Do you have to go through the lengthy process with Medicare or is there some other way? Plaintiffs counsel believes that the letter from SSDI should be enough and is bringing a Motion to Compel. As a side note, I believe the Plaintiff did have Medicare in the past but claims that was years ago.

If the plaintiff executes a form SSA 3288, you can go to any social security office to request Medicare statue information. The problem with the query appears to be if the plaintiff was ever entitled to Medicare for any period of time, the system is continuing to kick out false positives and that sounds like what happened here.

I wondered whether there is any guidance re how to treat plaintiffs in a medical monitoring claim against defendants with liability insurance — because those types of damages are possibly similar to future-oriented medical payments under a workers comp setting. Would defendants need to determine who is likely to be eligible for Medicare in 30 months, as in a workers’ compensation setting, as opposed to who is eligible at the time of settlement?

Might need more info here. I don’t understand if you’re proactively funding the monitoring MSA style whether ultimately needed or not, or monitoring for some period to provide treatment if needed when needed. Either way, the 30 months only applies if you are seeking CMS review in a WC settlement so kind of irrelevant. If Medicare eligible during this period of time and funds provided or treatment provided if needed, you’d be in compliance by making sure that Medicare not pay. Thing I’d wonder about is the reporting requirement if providing a promise to treat if needed, because that technically would be ORM and need to be reported. Not sure if you want to flesh out that question a little more so I understand the question better

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The Medicare Secondary Payer Act (the MSP)1 was passed in 1980 with the intent of reducing Medicare spending by prohibiting the program from making payment in situations where another entity possessed a legal or contractual obligation to provide medical treatment. Although under the MSP Medicare retains the right to make conditional payments under certain circumstances and subject to statutory recovery rights, the reality is that Medicare makes payment because the intermediary or insurance carrier representing the government program is unaware that a primary payer exists.  read more…