By Christie Britt, Senior Vice President of Operations, ExamWorks Clinical Solutions
By Devon Mahaney, PharmD Manager of Pharmacy Services for ExamWorks Clinical Solutions
On February 17, 2017, Congressman Tim Murphy (R-PA) re-introduced the Secondary Payer Advancement, Rationalization, and Clarification Act, or SPARC Act. The bill is styled as HR 1122 and is co-sponsored by Rep. Ron Kind (D-WI). The aim of the SPARC Act is to clarify the Medicare Secondary Payer (MSP) program when Medicare Part D is involved. For historical precedent, click here.
Last week CMS released a change request to modify Medicare’s Common Working File (CWF) to address a new Liability Medicare Set-Aside (LMSA) policy. The announcement establishes a timeline for back-end technical changes and provides clues to Medicare’s new policy. A copy of the notice can be found here.
ExamWorks Clinical Solutions (ECS) announced today an exclusive agreement with structured settlement broker, Chronovo, to deliver an innovative solution to the Medicare Set-Aside (MSA) space for workers’ compensation and liability settlements, called the iMSA.
After announcing two months ago that CMS was maintaining the recovery threshold for physical trauma-based liability settlements at $1,000 for 2016, CMS has now issued an Alert that as of 1/1/2017 the liability recovery threshold will be reduced to $750. CMS further announced in this 11/15/2016 Alert that in 2017 it will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals.
The Centers for Medicare and Medicaid Services (CMS) released an updated version of the Medicare Secondary Payer Recovery Portal (MSPRP) User Guide (Version 3.5) which documents improved functionality and access on the MSPRP including portal use for matters pending with the Commercial Repayment Center (CRC). Given the delays in obtaining documentation from the CRC, the expansion of the portal to cover claims with the CRC is an improvement in CMS’s Medicare conditional payment processes.
ExamWorks Clinical Solutions recently issued an Industry News Bulletin concerning an abrupt rule change to a long-standing CMS policy regarding approval of Legal Zero MSAs (see article here). CMS provided no notification of the rule change prior to the rule’s implementation by the Workers’ Compensation Review Contractor (WCRC). Accordingly, following our confirmation of the rule change with the WCRC, we immediately placed all Legal Zero MSA matters on hold and voiced ours concerns regarding this unannounced rule change to the CMS Central Office in Baltimore.
ExamWorks Clinical Solutions (ECS) was advised by the Centers for Medicare and Medicaid Services (CMS) that a Legal Zero MSA (“no liability” or “Zero allocation” MSA) based solely upon the employer or carrier’s complete denial of the claim will not be approved. Such a denial is typically evidenced by a claim payment history documenting no payments for medical treatment and indemnity and a letter from the adjuster or defense attorney confirming such a denial.
A September 26, 2016 CMS Alert (Alert) announced the implementation of a $750 conditional payment recovery threshold for no-fault and workers’ compensation settlements. CMS also announced it is maintaining the $1,000 conditional payment recovery threshold for liability settlements, a threshold which has been in place since January 1, 2014.
The 11th Circuit U.S. Court of Appeals, which includes Florida, Alabama and Georgia under its jurisdiction, has found that Medicare Advantage Plans (MAPs) may assign their rights of recovery under the MSP Act to another party. The consequence of the ruling is that MAPs or their assignees may assert a claim for reimbursement against no-fault and personal injury protection (PIP) plans for payments made by the MAPs deemed to be related to a claimed injury, including a claim for double damages.
Double Damages and MAPs – What You Need To Know: On August 8, 2016, the U.S. Eleventh Circuit Court of Appeals upheld an order from the lower federal district court granting summary judgment in favor of Humana[i] regarding Western Heritage Insurance Company’s (Western’s) obligation to reimburse Humana for Medicare benefits paid on behalf of its Medicare Advantage plan enrollee, Mary Reale, and its claim for double damages pursuant to the Medicare Secondary Payer Act (MSP). In affirming the district court’s order, the Eleventh Circuit specifically agreed with and adopted the Third Circuit Court of Appeals’ reasoning and holding in In re Avandia[ii] a prior successful decision for Medicare Advantage plans
A law passed in 2015 eliminated Social Security Numbers (SSNs) from Medicare ID cards, also known as Health Insurance Claim Numbers (HICNs). Congress and the President required use of a MBI to minimize the risk of identity theft for Medicare beneficiaries and to reduce opportunities for fraud within the program.
The Centers for Medicare and Medicare Services (CMS) is considering expanding the voluntary Workers’ Compensation MSA review process to include review of liability and no-fault insurance MSA amounts. The June 9, 2016 notice states as follows:
On May 17, 2016, the Centers for Medicare and Medicaid Services (CMS) published a final rule entitled “Medicare Program: Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal”. While the rule will be effective June 16, the process defined by the rule was initiated by CMS in December 2015. See prior ECS article "CMS Initiates Process Allowing for Obtaining Final Conditional Payment Amount Pre-Settlement". The final rule provides the official guidance on the how and when this Pre-Settlement Final Conditional Payment process may be utilized by the settling parties.
CMS published a Bulletin on February 9, 2016 addressing issues encountered in implementation of Conditional Payment recovery actions against insurers. See bulletin here. According to CMS, the CRC has issued more than 33,000 Conditional Payment Letters (CPLs) and Conditional Payment Notices (CPNs) since the transition. CMS advised that it is aware that many insurers and WC entities are awaiting CPLs, CPNs, or demand letters. CMS has engaged with the CRC to improve responsiveness to requests for conditional payment information and the handling of correspondence.
One of the most significant recent developments in limiting unnecessary medical care costs in California workers’ compensation came with the July 1, 2013, implementation of the Independent Medical Review (IMR) process. The IMR statute allows workers’ compensation claimants to appeal Utilization Review (UR) denials of medical care with the resulting IMR determination binding upon the parties. Initially, the Centers for Medicare and Medicaid Services (CMS) refused to recognize IMR determinations as providing a basis for limiting medical care in a Medicare Set Aside (MSA), thus maintaining their normal practice of largely relying upon the opinions and recommendations of the treating physician to allocate future medical care. More recently, ExamWorks Clinical Solutions (ECS) has identified favorable trends in CMS recognition of IMRs in MSA submissions.
A suit under the Federal False Claims Act against more than 50 insurance stakeholders filed in the U.S. District Court for the Western District of New York has been dismissed. In 2011, Dr. Kent Takemoto filed this action to recover damages and civil penalties on behalf of the United States of America arising from insurers and self-insured companies for their alleged failure to repay known government obligations in violation of the Federal False Claims Act, 31 U.S.C. §§ 3729 et seq. Specifically, the suit requested damages for failure to comply with the obligations imposed by the Medicare Secondary Payer ("MSP") statute, 42 U.S.C. § 1395y(b)(2).
In late December CMS launched the long-awaited process for obtaining the final conditional payment amount prior to settlement. The process is very rigid in its requirements making very easy for one to run afoul of its strict timelines. ExamWorks Clinical Solutions is pleased then to offer this one-hour web presentation which will provide attendees a how to guide for utilizing this new process to obtain the final conditional payment amount pre-settlement. The presentation will also update attendees with the latest on actions by CMS's Commercial Repayment Center (CRC) to recover for conditional payments made during periods of ongoing responsibility for medical by the employer or insurer.
On Monday, December 21, 2015 the Centers for Medicare and Medicaid Services (CMS) published an Alert entitled: Modification of the Medicare Secondary Payer Recovery Portal (MSPRP) for Inclusion of Final Conditional Payment (CP) Process Functionality. CMS has completed the implementation of an electronic method that allows claimants or their authorized representatives to obtain the final conditional payment amount within three days of final settlement as opposed to initiating lien investigation and resolution in anticipation of settlement without a concrete time frame. The process through the MSPRP is very rigid in its requirements which may limit its usefulness to parties settling workers’ compensation and liability cases.
On Tuesday, August 23rd, 2015 CMS held a webinar further explaining the new policies and procedures for conditional payment recovery through the Commercial Repayment Center (CRC) and the Benefits Coordination and Recovery Center (BCRC). On July 1, 2015, CMS first announced that it would be transitioning a portion of the NGHP recovery workload from the Benefits Coordination & Recovery Center (BCRC) to the CRC. CMS explained that the transition was part of a continuing effort to improve the conditional payment recovery and its accuracy in Medicare Secondary Payer (MSP) situations.
The latter half of 2014 and, thus far, 2015 have been busy times for Medicare Advantage Plans (MAPs) seeking clarification of their rights under the Medicare Secondary Payer (MSP) Act. MAPs, or “Part C providers” argue that the MSP Act and federal regulations outlining the right of Medicare Advantage Organizations are broad enough to allow providers of Medicare benefits to enjoy the same federal preemptive rights that Medicare Parts A and B routinely resort to when seeking recovery against settling parties. They argue that they are entitled to maintain a private cause of action against insurers who fail to reimburse them for care provided to a Medicare beneficiary and to recover double damages from those entities.
On Monday, July 13th, 2015 the Centers for Medicare and Medicaid Services (CMS) published version 4.7 of the MMSEA Section 111 Non-Group Health Program (NGHP) User Guide, found here.