CMS Hosts Townhall Meeting to Address MSP Recovery Topics and Statute of Limitations
Last week, on January 14th, the Centers for Medicare & Medicaid Services hosted a townhall meeting, complete with a slide presentation to discuss several Medicare Secondary Payer Recovery topics. During the townhall meeting, CMS discussed the conditional payment recovery process along with providing time at the end of the presentation for questions. The slides from CMS’ presentation, along with the slide notes may be found here.
Much of the presentation was an overview of the conditional payment recovery process, and did not provide new information. However, CMS discussed several important new topics, which included:
The Optional Pre-Conditional Payment Notice (CPN) worksheet.
This is an optional worksheet which allows a primary payer, carrier, or a self-insured to obtain a list of cases for which the Commercial Repayment Center may issue a CPN. This sheet is available to a Responsible Reporting Entities’ (RRE) Account Manager. In order to obtain this information, an RRE must provide its taxpayer identification number (TIN) and request the information from the Contractor. Although, it is important to note the pre-CPN worksheet provides very limited information.
The Open Debt Report.
This is a report available to Medicare Secondary Payer Recovery Portal (MSPRP) Account Managers, which displays any open debts associated with the TIN. The report shows the data for open debts on-demand (with data refreshed nightly), for Non-Group Health Plans (NGHP) insurer-debtor cases. The report is created per Account ID and account managers are only able to view open debt reports that are associated with the Tax ID used to create MSPRP access.
Applicability of the Statute of Limitations (SOL) to conditional payment recovery.
CMS stated its position that the (SOL) only applies to legal actions brought by the United States or CMS; and does not apply to the administrative collection efforts of CMS’ Contractors.
Takeaway and Commentary:
Much of the continuing challenges associated with the conditional payment recovery process have been brought to CMS’ attention, which include greater access to the reports mentioned above, along with adhering to promised timeframes. CMS appears to be making very slow strides into streamlining the process.
In addition, CMS’ interpretation of the applicability of the SOL is important to dissect and explain a bit. On January 10, 2013, the SMART Act was signed into law to provide additional direction to CMS as to how to collect payment for conditional payments made. Specifically, the intent of the SMART Act was to clarify that an action for recovery of conditional payments cannot be brought by CMS, unless it is brought in less than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment. The SMART Act was added to the very end of 42 U.S.C. 1395y(b)2)(B)(iii)), making it applicable only to situations in which the United States is filing a legal cause of action. This is one the very reasons it is incumbent on payers to report settlements to CMS both accurately and timely. The trigger for the SOL is the receipt of notification of a settlement, which is done through accurate, and timely mandatory insurer reporting. While there may be still situations when presenting an SOL argument is appropriate, CMS’ contractors (the Commercial Repayment Center and Benefits Coordination and Recovery Center) are not held to the SOL as mandated by the SMART Act. Therefore, from a practical standpoint, there are two important questions to address when challenging conditional payments:
1. Has Mandatory Insurer Reporting on the claim been done accurately, and timely? Mandatory Insurer Reporting guides conditional payment recovery by providing CMS with data regarding both the Medicare beneficiary and the primary payer’s responsibility of the claim. Data provided is the driving force behind conditional payment recovery. Accurate reporting or correcting inaccurate reporting/clerical errors allows for proper mitigation and saves on disputing inaccurately identified conditional payments. Ultimately, proper Mandatory Insurer Reporting limits a payer’s exposure. In addition, timely reporting of settlements and proper termination of responsibility of a claim is also the key to notifying Medicare that a primary payer is no longer responsible for conditional payments.
2. Have the identified conditional payments been appropriately challenged? Despite accurate reporting, there are still many reasons a conditional payment may not be the responsibility of a primary payer, from both a legal and factual standpoint. There are often opportunities to advocate for the removal of identified conditional payments, but this requires diligent investigation into all identified charges.
Lastly, absent from the townhall meeting, was any discussion regarding civil money penalties and Medicare Secondary Payer reporting requirements. As a reminder, a proposed rule was scheduled to be released in December, 2019 after the original scheduled release was pushed back. Currently, the proposed rule is still pending regulatory review.