Medicare in Personal Injury Claims: Understanding the Fundamentals - - PowerPoint PPT Presentation

Medicare in Personal Injury Claims: Understanding the Fundamentals

Complying with Reporting Requirements and Satisfying Medicare Liens When Settling a Claim

Today’s faculty features:

1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific

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THURS DAY, MARCH 8, 2012

Presenting a live 90-minute webinar with interactive Q&A

Jeremy T . Burt on, Part ner, Williams Montgomery & John, Chicago

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Medicare Trial and Settlement Considerations

Williams Montgomery & John Ltd. jtb@willmont.com

Trial and Settlement Considerations

 Introduction  Getting your cases settled  Considerations for Plaintiff’s counsel  Considerations for Defense counsel  Settlement language  Negotiating Settlement with the CMS

6

Introduction

Medicare is a government program providing health care. Under Medicare, the government reimburses health care providers for covered care provided. Until 1980, Medicare was the primary payer of all medical costs except in workers’ compensation cases. After 1980, Medicare is always a secondary payer to liability insurance, self-insurance, no-fault insurance, and workers’ compensation insurance. Medicare is also a secondary payer to group health plan coverage in certain situations.

7

Introduction

Insurers are not allowed to write policies secondary to

• Medicare. Such policies

would supersede federal law.

8

Introduction

Since 1980, Medicare beneficiaries, attorneys, insurers, self-insured entities, third party administrators and their agents have been responsible for

(1)

understanding when there is coverage primary to Medicare,

(2) notifying Medicare when applicable, (3) and for paying appropriately.

9

Introduction

The new law, Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA Section) “Adds mandatory reporting requirements with respect to Medicare beneficiaries who have coverage under group health plan arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards or other payment from liability insurance, no-fault insurance,

• r

workers’ compensation.”

10

Introduction

Implementation dates for the new law were originally January 1, 2009 for group health plans to register and July 1, 2009 for liability insurers to register. Insurers must report claims with settlement dates on or after October 1, 2011. In certain cases where an insurer has ongoing responsibility for medical claims, claims arising after January 1, 2010 must be reported.

11

Introduction

The new law is designed to enforce the statutes passed in 1980.

 It does not substantively change the pre-existing

Medicare law and statutes.

 It adds new reporting rules.  It includes penalties for noncompliance.

12

Considerations for Plaintiff’s Counsel

Intake Considerations Is the client 65 or older? Receiving Social Security Disability? Suffering from end-stage renal disease? Obtain your client’s Medicare identification card Advise Defense counsel

13

Considerations for Plaintiff’s Counsel

Lien Concerns Explain to your client that a substantial portion of their settlement will be payable to Medicare. Inform your client that Medicare costs may have a significant impact on your chances to favorably resolve the case.

14

Consideration for Plaintiff’s Counsel

Future Medicals Advise your client that Medicare has a right to recover any amount they expend on future medical care. You may want to consider the availability of a special needs trust or other ways to escrow money for future medical costs.

15

Considerations for Plaintiff’s Counsel

Future Medicals “You should also be aware that if you do not repay Medicare in full, it may decide to recover any amounts you owe (including accrued interest) from any Social Security or Railroad Retirement benefits to which you might otherwise be entitled, or from future Medicare payments.”

16

Considerations for Plaintiff’s Counsel

Penalty Provisions 42 C.F.R. Sect. 411.24(g) Recovery from parties that receive primary payments. CMS has a right of action to recover its payments from any entity, including a beneficiary provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.

17

Considerations for Plaintiff’s Counsel

Penalty Provisions U.S. v. Harris, 2009 WL 891931 (N.D.W.Va) The CMS calculated the amount it was owed, after subtracting amounts for attorney’s fees and costs. The CMS made its demand by letter, and after the statutory time elapsed without appeal the government filed suit. The court granted summary judgment to the government and ordered the Plaintiff’s counsel to pay the judgment plus interest.

18

Considerations for Defense Counsel

Discovery Is the plaintiff a beneficiary? Has the plaintiff received benefits? What has the plaintiff done with respect to the lien?

19

Considerations for Defense Counsel

Discovery Form A-1 Allows an insurer to determine whether the plaintiff is a Medicare beneficiary. Obtain with interrogatories. Full name, Medicare claim number (HICN), date of birth, social security number and sex.

20

Considerations for Defense Counsel

Reporting Make certain your client – insurer or self-insured entity is registered to report. If a complaint or discovery lists the date of a plaintiff’s injury or exposure after December 5, 1980, Medicare will require a report.

21

Considerations for Defense Counsel

Reporting Plaintiffs cannot claim a settlement, judgment or award does not contemplate medical liability in an effort to circumvent Medicare, even if a court accedes to such a compromise.

22

Considerations for Defense Counsel

Third Party Administrators The new Medicare reporting requirements are complicated enough that the CMS has anticipated that RREs will hire Third-Party Administrators (TPAs) to handle reporting and payment obligations. 42 U.S.C. 1396y(b)(7)&(8)

23

Considerations for Defense Counsel

Medicare Penalties Medicare beneficiaries are required to reimburse Medicare within 60 days of receipt of settlement. If Medicare is not reimbursed by the beneficiary, payment becomes the responsibility of the primary payer.

24

Why Report

The CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment. 42 CFR Sec. 411.24(g) 25

Why Report

If Medicare is not reimbursed as required by paragraph (h) of this section, the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party. 42 CFR Sec. 411.24(i) 26

Why Report

The United States can collect double damages and attorneys fees against any entity not paying under the new statute. Furthermore, An applicable plan that fails to comply with the Medicare reporting requirements is subject to a civil money penalty

• f

$1,000 for each day

• f

noncompliance with respect to each claimant. 42 USC Sec. 1395y(b)(8)(E)(i)

27

Considerations for Defense Counsel

New Process (1) Determine the Medicare status of all claimants (2) RRE must report settlements (3) RRE must resolve liens (4) RRE must give consideration to Medicare’s interest in future payments

28

Considerations for Defense Counsel

ORM/TPOC and Date of Settlement

It may be but not always is the check date or payment date, it is the date the obligation is signed, if there’s a written agreement, unless court approval is required. If court approval is required it is the later of the date the obligation is signed or the date of court approval. If there is no written agreement it is the date the payment, or the first payment if there will be multiple payments is issued.

See http://www.cms.gov/MandatoryInsRep/Downloads/March11NGHPTranscript.pdf, pg. 15.

29

Considerations for Defense Counsel

ORM/TPOC and Date of Settlement

Application of the December 5, 1980 date is specific to a particular claim/defendant. If exposure for Defendant “BW” ended prior to December 5, 1980 but exposure for other defendants did not, a settlement, judgment, award or other payment with respect to Defendant “BW” would not be reported. Certain representatives of Medicare have indicated they do not intend to follow this rule and so it may be necessary to report client specific claims that fall outside of this rule but

• therwise have exposure after December 5, 1980.

30

Considerations for Defense Counsel

Medicare Set Asides

1.

Medical damages from the date of injury through the date of settlement.

2.

Future medical damages from the date

• f

settlement forward.

31

Medicare Set Asides

In non-workers’ compensation cases, you are not required to set aside money for future damages to pay for plaintiff’s future medical expenses. There is some disagreement on this topic. Many defense firms are advising clients to set aside funds for future medical expenses. The CMS has confirmed that set asides are not required in liability cases, though they have also noted that they “reserve their right” to both challenge agreements which do not adequately cover Medicare costs and the future right to require set asides in liability cases. You should consider something like a Medicare Set Aside (MSA) for future medical damages. This set aside is required in workers’ compensation cases to “reasonably protect Medicare’s future interests.” If the CMS approves the proposed set-aside all parties will receive “safe harbor” protection from future government collection action.

32

Medicare Set Asides

Unfortunately, CMS is not in a position to review set asides at this time. As an alternative you can make a Claims Settlement Allocation (CSA). 33

Medicare Set Asides

The following standards apply to MSAs in workers’ compensation cases and should be taken into account in

• ther liability cases.

A MSA is available where the claimant is currently a Medicare beneficiary and the TPOC is greater than $25,000. Or where the plaintiff will soon be a Medicare beneficiary and the TPOC amount for future medical expenses, disability and lost wages is expected to be greater than $250,000.

34

Medicare Set Asides

A MSA is not necessary where:

1.

The facts of the case demonstrate that the injured individual is only being compensated for past medical expenses; and

2.

There is no evidence that the individual is attempting to maximize the other aspects of settlement to Medicare’s detriment; and

3.

The individual’s treating physicians conclude in writing that, to a reasonable degree of medical certainty, the individual will no longer require any Medicare-covered treatments related to the workers’ compensation injury.

35

Medicare Set Asides

A MSA/CSA must show a good-faith consideration of future medical expenses. Remember that expenses must be related to the injury and in the appropriate case, you may want to consider a second review of medical records to eliminate

• verpaying for unrelated medical conditions.

Is there a need for a trust? Can a Third Party administer the trust?

36

Medicare Set Asides

“We have continued to say with respect to set-asides

• r liability situations that set-asides are not required in

terms of CMS being involved in any type of determination of how much the set-asides should be. We have also said that our regional offices have the ability to evaluate proposed set-aside amounts for liability if their workload permits them to do so.”

37

Medicare Set Asides

“This is not the same thing as a blanket statement that liability set asides are simply not required or not appropriate. Regardless of the mechanism, Medicare’s interests need to be protected. The statute says that we don’t make payment where payment has already been

• made. Whether or not this is protected through setting up a formal set-

aside, setting up a formal trust, simply keeping the money and insuring that it’s being [paid] in a priority manner to Medicare until the appropriate funds are exhausted; those are all choices, but we need to make it clear that’s not the same thing as saying – and that we are not in fact saying that liability set-asides aren’t appropriate.”

http://www.cms.gov/MandatoryInsRep/Downloads/Jan2810NGHPTranscript.pdf, pg. 17.

38

Medicare Set Asides

The CMS has noted their “standard expectation is that they will be pursuing recoveries against settlements received by individual beneficiaries.” However the CMS further notes that “there are limited instances where CMS has gone back to an insurer or to an attorney particularly if, for instance, an attorney for a beneficiary who ignores CMS’s demand, technically, there are some risks under the regulation. Is it any type of standard practice for us to routinely go back to an insurer or attorney or other entity when we’ve issued the demand to the beneficiary? No.”

See http://www.cms.gov/MandatoryInsRep/Downloads/Feb2510NGHPTranscript.pdf, pg. 37. 39

Creating Medicare Set Asides

If both sides have obtained medical records in written discovery, you likely have a blue print to create a successful MSA. If both sides have testimony from medical experts regarding permanency and anticipated future medical damages you are in an even better position. If one or both sides have hired an economist to analyze future medical needs, your work is almost complete.

40

Creating Medicare Set Asides

As a general rule in creating a set aside, your Medicare Allocation Report should include the following.

 The beneficiary’s name  The beneficiary’s address  The beneficiary’s social security number  The beneficiary’s current age  The beneficiary’s life expectancy  The date of the injury  The state of jurisdiction

41

Creating Medicare Set Asides

 The related diagnoses and ICD-9 Diagnosis Codes  An introduction and description of the injury  A medical history including relevant doctors’ visits,

examinations, and surgeries

 Summaries of the relevant doctors’ visits, examinations,

and surgeries

 Physician diagnoses, prognoses, recommended course

• f treatment and if available opinions on possible future

surgeries and all future costs.

 A list of pre-existing and unrelated conditions

42

Creating Medicare Set Asides

 A summary of the plaintiff’s current functional states and

ability to perform activities of daily living.

 A summary of the future treatment plan including doctors’

visits, future surgery, and anticipated prescription costs.

 A bottom line MSA number.

Your report should also contain the methodology utilized to explain how you calculated the final number, e.g. adjusted life expectancy and discount rate. The more you rely on verifiable medical information, the more protected you and your client will be.

43

Settlement Language

Madison County, Illinois has entered an order in Asbestos cases with helpful suggested settlement language. As part of settlement, Plaintiff’s counsel must complete Medicare Form B in order to finalize any settlement agreement. Medicare Form B requires all of the same information contained in the A-1 form as well as information that Medicare requires such as the diagnosis code for the plaintiff’s illness, the name of the settling defendant, the date of the settlement, the amount of settlement and information on the funding of settlement.

44

Settlement Language

Releases should be tailored to discuss Medicare obligations. If there are no future medical damages, that should be stated in the release. If possible, obtain indemnification, defense and hold harmless language from the plaintiff’s firm ensuring that a paying RRE will be protected from double paying and double damages. At the very least, all settlement agreements should state who is responsible for investigating Medicare liens, and who is responsible for satisfying any Medicare liens.

45

Settlement Language

The language of the Madison County order notes that (1) Defendant will not include Medicare on the settlement check. (2) PLAINTIFF'S FIRM agrees to hold in its trust account sufficient funds to pay all Medicare claims or liens relating to such settlement …or has in fact satisfied all Medicare claims or liens in full. PLAINTIFF'S FIRM will notify ... CMS, of any settlement which this Agreement governs and will work to satisfy or otherwise obtain discharge or release of any Medicare claim or lien including "set asides," if any.

46

Settlement Language

(3) If defendant receives a claim for any unsatisfied Medicare claim … defendant will notify PLAINTIFF'S FIRM … and request from them any evidence that the claim or lien has been satisfied in full … If such evidence is not forthcoming or fails to resolve the claim in full without payment by defendant, defendant may by regular mail notify PLAINTIFF'S FIRM to undertake the principal response to the matter or to arrange payment or other resolution. If the U.S. government or its designee including CMS brings suit, PLAINTIFF'S FIRM will undertake the principal defense of such matter … PLAINTIFF'S FIRM will be liable to defendant for the amount owed or paid by such defendant to the United States Government … for the allegedly unsatisfied Medicare claim or lien plus all attorney fees and out of pocket expenses reasonably necessary …

47

Settlement Language

But consider Many plaintiff’s firms will refuse an indemnification provision. Some states have ruled finding that a plaintiff’s attorney cannot agree to indemnify an opposing party for unpaid liens. Illinois Adv. Op. 06-10 (2006).

48

Other settlement options

Medicare has acknowledged that it can be a joint payee on settlement

• checks. The main issue with such a solution is that it puts the burden
• n the plaintiff to contest non-suit related charges and it will inevitably

delay payment to the plaintiff, especially in cases where significant future medical costs are anticipated. Moreover, drafting a check in such a manner does not absolve a RRE from further following up to ensure that Medicare is reimbursed.

49

Other settlement options

Tomlinson v. Landers, 2009 WL 1117399 (M.D.Fla.) In Tomlinson the defendant included Medicare on the settlement check. The plaintiff returned the check and requested that Medicare not be included on the check, promising instead that it would hold the defendant carrier harmless for any Medicare liens. The court found that including Medicare on the settlement check was not required under the rules, and further held that due to the disagreement between the parties that the settlement was invalid as the parties never had a meeting of the minds. Tomlinson does not stand for the proposition that Medicare cannot be included on the check when both parties are in agreement.

50

Settlement Considerations

In the case of a joint and several settlement, where each defendant technically is responsible for the whole settlement, each entity must report the entire settlement, judgment, award or other payment. If each defendant enters into a separate settlement, they are each responsible for reporting the separate settlement, judgment, award or other payment.

See http://www.cms.gov/MandatoryInsRep/Downloads/Jan2810NGHPTranscript.pdf, pg. 20

51

Settlement Considerations

What about cases wherein a discounted settlement does not allow for reimbursement of Medicare due to questionable liability? “Waiver of Rights. The Secretary may waive (in whole

• r in part) the provisions of this subparagraph in the

case of an individual claim if the Secretary determines that the waiver is in the best interests of the program established under this title.” 42 USC Secs. 1395 et seq.

52

Negotiating Settlement with the CMS

Conditional Payment Estimate We are writing to advise you that Medicare has identified a claim or number of claims for which you have primary payment responsibility and Medicare has made primary payment. The Medicare Secondary Payer provisions of the statute, 42 CFR 1395y(b)(2), precludes Medicare from paying for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made … under no- fault insurance”.

53

Negotiating Settlement with the CMS

However, Medicare may pay for a beneficiary’s covered medical expenses conditioned on reimbursement to Medicare from proceeds received pursuant to a third party liability settlement, award, judgment, recovery or from any entity responsible for making primary payment. Medicare must recover these payments from the entity responsible for payment or when payment has been made from the entity/individual who has received payment for these claims.

54

Negotiating Settlement with the CMS

Enclosed is an itemization of conditional payments made by Medicare on behalf of the Medicare beneficiary referenced above. Currently, Medicare has paid _______ in conditional payments related to your claim.

55

Negotiating Settlement with the CMS

Final Demand Letter We are writing to you because we recently learned that you have made a liability claim relating to an illness, injury, or incident occurring on or about _____ and obtained a recovery. We have determined that you are required to repay the Medicare program _______ for the cost of medical care it paid relating to your liability recovery. (The term “recovery” includes a settlement, judgment, award or any other type of recovery.

56

Negotiating Settlement with the CMS

 Right to Request a Waiver - you have the right to

request that the Medicare program waive recovery of the amount you owe in full or in part. Your right to request a waiver is separate from your right to appeal our determination, and you may request both a waiver and an appeal at the same time. The Medicare program may waive recovery of the amount you owe if you can show that you meet both

• f the following conditions:



57

Negotiating Settlement with the CMS

1. This overpayment (for purposes of re questing waiver of recovery, the amount you owe is considered an overpayment) was not your fault, because the information you gave us with your claims for Medicare benefits was correct and complete as far as you knew; and when the Medicare payment was made, you thought that it was the right payment; AND 2. Paying back this money would cause financial hardship or would be unfair for some other reason.

58

Negotiating Settlement with the CMS

Right to Appeal - You also have the right to appeal our determination if you disagree that you owe Medicare as explained in Part I of this letter, of if you disagree with the amount that you owe Medicare ______ as explained in Part II of this letter. To file an appeal, you should send us a letter explaining why you think the amount you owe Medicare is incorrect and/or any reason(s) why you disagree with our determination. 120 days from receipt of letter.

59

Negotiating Settlement with the CMS

Counsel should be familiar with whether their request is for a complete waiver, a compromise allocation or a full commutation before contacting any Medicare

• representative. In the case of a compromise request,

counsel should be familiar with 42 CFR § 411.47 which governs compromise settlements in workers’ compensation cases and is currently the best tool available for an argument reducing a Medicare payment in a liability case. That section states:

60

Negotiating Settlement with the CMS

42 CFR § 411.47 proposes a ratio analysis. If a settlement does not apportion the sum granted, the portion to be considered as payment for medical expenses is computed as follows: Determine the ratio of the amount awarded to the total amount that would have been payable … if the claim had not been compromised. Multiply that ratio by the total medical expenses incurred as a result of the injury or disease up to the date of the settlement.

61

Negotiating Settlement with the CMS

Similar language governs the plaintiff’s counsel’s recovery under 42 C.F.R. Sec. 411.37(c) Determine the ratio of the procurement costs to the total judgment or settlement payment. Apply the ratio to the Medicare payment. The product is the Medicare share of procurement costs.

62

EXP O SURE, IN G ESTIO N A N D IM P LA N TA TIO N C LA IM S

CMS UPDATES

63

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

DOI – T he Da te o f I nc ide nt. (T he Da te o f I nc ide nt fo r a n a uto mo b ile a c c ide nt is the da te o f the a c c ide nt.) F

• r e xpo sure c la ims, the DOI

is the da te o f first e xpo sure . F

• r ing e stio n c la ims, the DOI

is the da te o f first ing e stio n. F

• r c la ims invo lving impla nts,

the DOI is the da te o f the impla nt.

64

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Whe n the injure d pa rty is a Me dic a re b e ne fic ia ry a nd the da te o f inc ide nt is o n

• r a fte r

De c e mb e r 5, 1980, lia b ility insura nc e is prima ry to Me dic a re .

65

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Applic a tio n o f the De c e mb e r 5, 1980 da te is spe c ific to a pa rtic ula r c la im/ de fe nda nt. I f e xpo sure fo r De fe nda nt “X” e nde d prio r to De c e mb e r 5, 1980 b ut e xpo sure fo r o the r de fe nda nts did no t, a se ttle me nt, judg me nt, a wa rd

• r
• the r

pa yme nt with re spe c t to De fe nd a nt “X” wo uld no t b e re po rte d.

NGHP Use r Guide , Ve r. 3.2,, p. 115

66

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

I nitia lly, c e rta in re pre se nta tive s

• f

Me dic a re indic a te d the y did no t inte nd to fo llo w this rule a nd tha t it ma y b e ne c e ssa ry to re po rt c lie nt spe c ific c la ims tha t fa ll o utside o f this rule b ut o the rwise ha ve e xpo sure a fte r De c e mb e r 5, 1980.

67

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

T he CMS o n Oc to b e r 11, 2011 a nno unc e d the fo llo wing : T he Ce nte rs fo r Me dic a re & Me dic a id Se rvic e s ha s c o nsiste ntly a pplie d the Me dic a re Se c o nda ry Pa ye r (MSP) pro visio n fo r lia b ility insura nc e (inc luding se lf- insura nc e ) e ffe c tive 12/ 5/ 1980. As a ma tte r o f po lic y, Me dic a re do e s no t a sse rt a MSP lia b ility insura nc e b a se d re c o ve ry c la im a g a inst se ttle me nts, judg me nts, a wa rd s o r o the r pa yme nts, whe re the da te o f inc ide nt (DOI ) o c c urre d b e fo re 12/ 5/ 1980.

68

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re in the ir Oc to b e r 11, 2011 a nno unc e me nt indic a te d tha t whe re c o ntinue d e xpo sure

• r

ing e stio n e xists – Me dic a re fo c use s o n the da te o f last e xpo sure o r ing e stio n fo r purpo se s

• f

de te rmining whe the r the e xpo sure o r ing e stio n o c c urre d o n o r a fte r 12/ 5/ 1980.

69

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

F

• r impla nt c a se s, the da te o f la st e xpo sure is use d

fo r rupture d impla nts a nd fo r no n-rupture d impla nts, the da te the impla nt wa s re mo ve d is the da te o f la st e xpo sure . Me dic a re no te s tha t the te rm e xpo sure re fe rs to a c la ima nt’ s physic a l e xpo sure to the ha rm ra the r tha n a de fe nda nt's le g a l e xpo sure to lia b ility.

70

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re will a sse rt a re c o ve ry c la im whe n:

ONE

E xpo sure , ing e stio n o r the a lle g e d e ffe c ts o f a n impla nt o n o r a fte r 12/ 5/ 1980 is c la ime d, re le a se d , o r e ffe c tive ly re le a se d.

71

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re will a sse rt a re c o ve ry c la im whe n:

T WO

A spe c ifie d le ng th o f e xpo sure o r ing e stio n is re q uire d in o rde r fo r the c la ima nt to o b ta in the se ttle me nt, judg me nt, a wa rd , o r o the r pa yme nt, a nd the c la ima nt’ s da te o f first e xpo sure plus the spe c ifie d le ng th o f time in the se ttle me nt, judg me nt, a wa rd o r

• the r pa yme nt e q ua ls a da te o n o r a fte r 12/ 5/ 1980.

T his a lso a pplie s to impla nte d me dic a l de vic e s.

72

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re will a sse rt a re c o ve ry c la im whe n:

T HRE E

A re q uire me nt o f the se ttle me nt, judg me nt, a wa rd , o r

• the r pa yme nt is tha t the c la ima nt wa s e xpo se d to ,
• r ing e ste d , a sub sta nc e o n o r a fte r 12/ 5/ 1980. T

his rule a lso a pplie s if the se ttle me nt, judg me nt, a wa rd ,

• r o the r pa yme nt de pe nds o n a n impla nt tha t wa s

ne ve r re mo ve d o r wa s re mo ve d o n o r a fte r 12/ 5/ 1980.

73

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re will not a sse rt a re c o ve ry c la im whe n: All e xpo sure o r ing e stio n e nde d , o r the impla nt wa s re mo ve d b e fo re 12/ 5/ 1980; a nd E xpo sure , ing e stio n, o r a n impla nt o n o r a fte r 12/ 5/ 1980 ha s no t b e e n c la ime d a nd/ o r spe c ific a lly re le a se d; a nd T he re is e ithe r no re le a se fo r the e xpo sure , ing e stio n, o r a n impla nt o n o r a fte r 12/ 5/ 1980; o r whe re the re is suc h a re le a se , it is a b ro a d g e ne ra l re le a se (ra the r tha n a spe c ific re le a se ), whic h e ffe c tive ly re le a se s e xpo sure o r ing e stio n o n o r a fte r 12/ 5/ 1980. T he rule a lso a pplie s if the b ro a d g e ne ra l re le a se invo lve s a n impla nt.

74

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

“E ffe c tive Re le a se s” Me dic a re se e ms to c o ntra dic t itse lf o n the issue o f whe the r the y will a sse rt o r no t a sse rt re c o ve ry whe n e xpo sure is “e ffe c tive ly re le a se d .” Mo st c o mme nte rs o n this vie w it a s a n issue o f kno wn

• r a lle g e d e xpo sure .

75

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Whe re e xpo sure o r ing e stio n is c la ime d in the c o mpla int o r thro ug h disc o ve ry, Me dic a re is like ly to pursue re c o ve ry whe re a se ttle me nt do e s no t c o nte mpla te tha t e xpo sure b ut re le a se “e ffe c tive ly re le a se s” the e xpo sure . T he kind o f re le a se Me dic a re is o ka ying is o ne whe re e xpo sure a fte r De c e mb e r 5, 1980 is no t ra ise d in the c a se , is unkno wn, b ut is “e ffe c tive ly re le a se d.”

76

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

F

• r this re a so n, it is impe ra tive fo r se ttling c o unse l,

e spe c ia lly de fe nd a nts to re vie w the c o mpla int, a nswe rs to inte rro g a to rie s a nd de po sitio n te stimo ny fo r a ny sug g e stio n o f e xpo sure a fte r De c e mb e r 5,

• 1980. T

ha t info rma tio n sho uld a lso b e pro vide d to the c lie nt. I f the re is e vide nc e o f e xpo sure a fte r tha t da te , re po rt to Me dic a re . I f the re is no e vide nc e , the n re po rting is mo st like ly no t ne c e ssa ry.

77

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Me dic a re ha s indic a te d whe re the o nly e vide nc e o f po st De c e mb e r 5, 1980 e xpo sure is the re le a se , the y will no t pursue re c o ve ry. We lo o k a t wha t’ s c la ime d o r re le a se d … a nd we ha ve c a rve d o ut this o ne e xc e ptio n whe re the o nly b a sis … fo r us lo o king to … prima ry pa yme nt re spo nsib ility wa s a b ro a d g e ne ra l re le a se . We ha ve sa id in tha t situa tio n we wo n’ t pursue a re c o ve ry pla n.

Se e http:/ / www.c ms.g o v/ Ma nda to ryInsre p/ Do wnlo a ds/ 10192011NGHP.pdf

78

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

Ano the r issue to c o nside r is whe the r a po lic y whic h e xpire d prio r to De c e mb e r 5, 1980 c a n b e lia b le to Me dic a re in a c a se whe re e xpo sure do e s no t te rmina te o n tha t da te a nd the se ttle me nt b y virtue

• f the po lic y do e s no t c o ve r sub se q ue nt e xpo sure .

79

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

I n suc h a c a se . T he CMS ha s indic a te d tha t it ha s a re c o ve ry c la im a g a inst tha t se ttle me nt. …le t’ s sa y a po lic y e nde d in 1979, b ut no ne the le ss tha t pa rty wa s sue d a nd pa rt o f the b e ne fic ia ry’ s c o mpla int wa s I c o ntinue d to b e e xpo se d a t this lo c a tio n thro ug h suc h a nd suc h. I f tha t insure r se ttle s with the m, we ha ve a re c o ve ry c la im a g a inst tha t se ttle me nt. I t’ s no t b a se d o n whe n the ir le g a l lia b ility e nde d fo r the pa rtic ula r e xpo sure tha t’ s c la ime d o ur re c o ve ry c la im is lo o king to wha t wa s c la ime d o r re le a se d… .

Se e http:/ / www.c ms.g o v/ Ma nda to ryI nsre p/ Do wnlo a ds/ 10192011NGHP.pdf

80

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

T he c la ima nt wa s e xpo se d to a to xic sub sta nc e in his ho use . He mo ve d o n 12/ 4/ 1980. T he c la ima nt did no t re turn to the ho use . E xpo sure e nde d b e fo re 12/ 5/ 1980. T he c la ima nt wa s e xpo se d to a to xic sub sta nc e in his ho use . He mo ve d o n 12/ 4/ 1980. T he c la ima nt ma ke s mo nthly visits to the ho use b e c a use his mo the r c o ntinue s to live in the ho use . E xpo sure did no t e nd b e fo re 12/ 5/ 1980.

81

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

T he c la ima nt wa s e xpo se d to a to xic sub sta nc e while he wo rke d in Building A. He wa s tra nsfe rre d to Building B o n 12/ 4/ 1980, a nd did no t re turn to Building A. E xpo sure e nde d b e fo re 12/ 5/ 1980. T he c la ima nt wa s e xpo se d to a to xic sub sta nc e while he wo rke d in Building A. He wa s tra nsfe rre d to Building B o n 12/ 4/ 1980, b ut ro utine ly g o e s to Building A fo r me e ting s. E xpo sure did no t e nd b e fo re 12/ 5/ 1980.

82

EXPOSURE, INGESTION AND IMPLANTATION CLAIMS

T he c la ima nt ha d a de fe c tive impla nt re mo ve d o n 12/ 4/ 1980. T he impla nt ha d no t rupture d. E xpo sure e nde d b e fo re 12/ 5/ 1980. T he c la ima nt ha d a de fe c tive impla nt tha t wa s ne ve r re mo ve d. E xpo sure did no t e nd b e fo re 12/ 5/ 1980.

83

SEC TIO N 1 1 1 REPO RTING

CMS UPDATES

84

SECTION 111 REPORTING

T he a dministra to r o f a ny lia bility insura nc e pla n must re po rt mo ne y pa id pursua nt to a ny se ttle me nt, judg me nt, a wa rd o r o the r pa yme nt. 42 USC 1395y(b )(8)(F ). L ia b ility insura nc e is de fine d a s c o ve ra g e tha t inde mnifie s o r pa ys o n b e ha lf o f the po lic yho lde r o r se lf-insure d e ntity a g a inst c la ms

• f

ne g lig e nc e , ina ppro pria te a c tio n, o r ina c tio n whic h re sults in injury

• r illne ss to a n individua l o r da ma g e to pro pe rty.

85

SECTION 111 REPORTING

A prima ry pla n, a nd a n e ntity tha t re c e ive s pa yme nt fro m a prima ry pla n, sha ll re imb urse [Me dic a re ] fo r a ny pa yme nts ma de … if it is de mo nstra te d tha t suc h prima ry pla n ha s o r ha d a re spo nsib ility to ma ke pa yme nt …. A prima ry pla n’ s re spo nsib ility fo r suc h pa yme nt ma y b e de mo nstra te d b y a judg me nt, a pa yme nt c o nditio ne d upo n the re c ipie nt's c o mpro mise , wa ive r o r re le a se … 42 USC Se c . 1395 y(b )(2)(A)(ii)

86

SECTION 111 REPORTING

T he CMS ha s a rig ht o f a c tio n to re c o ve r its pa yme nts fro m a ny e ntity, inc luding a b e ne fic ia ry, pro vide r, supplie r, physic ia n, a tto rne y, Sta te a g e nc y o r priva te insure r tha t ha s re c e ive d a prima ry pa yme nt. 42 CF R Se c . 411.24(g )

87

SECTION 111 REPORTING

I f Me dic a re is no t re imb urse d a s re q uire d b y pa ra g ra ph (h) o f this se c tio n, the prima ry pa ye r must re imb urse Me dic a re e ve n tho ug h it ha s a lre a dy re imb urse d the b e ne fic ia ry o r o the r pa rty. 42 CF R Se c . 411.24(i)

88

SECTION 111 REPORTING

T he Unite d Sta te s c a n c o lle c t do ub le da ma g e s a nd a tto rne ys fe e s a g a inst a ny e ntity no t pa ying unde r the ne w sta tute . F urthe rmo re , An a pplic a b le pla n tha t fa ils to c o mply with the Me dic a re re po rting re q uire me nts is sub je c t to a c ivil mo ne y pe na lty

• f

$1,000 fo r e a c h da y

• f

no nc o mplia nc e with re spe c t to e a c h c la ima nt. 42 USC Se c . 1395y(b )(8)(E )(i)

89

SECTION 111 REPORTING

I mple me nta tio n da te s fo r the ne w la w we re o rig ina lly Ja nua ry 1, 2009 fo r g ro up he a lth pla ns to re g iste r a nd July 1, 2009 fo r lia b ility insure rs to re g iste r. I nsure rs o rig ina lly we re re q uire d to re po rt a ll c la ims with se ttle me nt da te s o n o r a fte r Oc to b e r 1, 2011. I n c e rta in c a se s whe re a n insure r ha s o ng o ing re spo nsib ility fo r me dic a l c la ims, c la ims a rising a fte r Ja nua ry 1, 2010 must b e re po rte d.

90

SECTION 111 REPORTING

T he da te o f a Se ttle me nt is the da te o f the pa yme nt

• b lig a tio n wa s e sta b lishe d.

I t ma y b e b ut no t a lwa ys is the c he c k da te o r pa yme nt da te , it is the da te the o b lig a tio n is sig ne d , if the re ’ s a writte n a g re e me nt, unle ss c o urt a ppro va l is re q uire d . I f c o urt a ppro va l is re q uire d it is the la te r o f the da te the

• b lig a tio n is sig ne d o r the da te o f c o urt a ppro va l. I

f the re is no writte n a g re e me nt it is the da te the pa yme nt, o r the first pa yme nt if the re will b e multiple pa yme nts is issue d.

• Se e http:/ / www.c ms.g o v/ Ma nda to ryInsRe p/ Do wnlo a ds/ Ma rc h11NGHPT

ra nsc ript.pdf, pg . 15.

91

SECTION 111 REPORTING

On Se pte mb e r 30, 2011, One da y b e fo re the ne w re po rting re q uire me nts we re se t to g o into e ffe c t, the CMS issue d a

Re vise d Imple me ntation T ime line

92

SECTION 111 REPORTING

T he re po rting da te fo r Se ttle me nt Pa yme nts is de te rmine d b y the a mo unt o f the se ttle me nt. Sta rting o n Oc to b e r 1, 2011, a ll se ttle me nts o ve r $100,000 must b e re po rte d. Sta rting o n April 1, 2012, a ll se ttle me nts o ve r $50,000 must b e re po rte d. Sta rting o n July 1, 2012, a ll se ttle me nts o ve r $25,000 must b e re po rte d.

93

SECTION 111 REPORTING

Sta rting o n Oc to b e r 1, 2012, a ll se ttle me nts o ve r the “minimum thre sho ld” must b e re po rte d. T he minimum thre sho lds a re a s fo llo ws: Until De c e mb e r 31, 2012, se ttle me nts o f unde r $5,000 a re e xe mpt fro m re po rting . Be twe e n Ja nua ry 1, 2013 a nd De c e mb e r 31, 2013, se ttle me nts o f unde r $2,000 a re e xe mpt fro m re po rting . Be twe e n Ja nua ry 1, 2014 a nd De c e mb e r 31, 2014, se ttle me nts o f unde r $600 a re e xe mpt fro m re po rting . Afte r Ja nua ry 1, 2015, a ll se ttle me nts must b e re po rte d.

94

SECTION 111 REPORTING

Me dic a re b e ne fic ia rie s who re c e ive a lia b ility se ttle me nt, judg me nt, a wa rd o r o the r pa yme nt ha ve a n

• b lig a tio n

to re fund a sso c ia te d c o nd itio na l pa yme nts within 60 da ys o f re c e ipt o f suc h se ttle me nt, judg me nt, a wa rd, o r o the r pa yme nt. I f Me dic a re is no t re imb urse d b y the b e ne fic ia ry, pa yme nt b e c o me s the re spo nsib ility o f the prima ry pa ye r.

95

A D D ITIO NA L C M S A NNO UNC EM ENTS

CMS UPDATES

96

ADDITIONAL CMS ANNOUNCEMENTS

T he $300 T hr e shold

Unde r pre ssure fro m se ve ra l so urc e s, Me dic a re ha s re le nte d a nd a nno unc e d it is no t fina nc ia lly via b le fo r the g o ve rnme nt to se e k re c o ve ry o f se ttle me nts o f $300 a nd unde r.

97

ADDITIONAL CMS ANNOUNCEMENTS

I f the fo llo wing c rite ria a re me t, MSPRC will no t re c o ve r a g a inst a se ttle me nt, judg me nt, a wa rd o r o the r pa yme nt. (1) T he re c o ve ry is re la te d to a tra uma -b a se d inc id e nt (no t a c a se invo lving ing e stio n, impla nta tio n o r e xpo sure ) (2) T he re c o ve ry is $300 o r le ss. (3) T he b e ne fic ia ry ha s no t re c e ive d a nd d o e s no t e xpe c t to re c e ive a ny o the r se ttle me nts, judg me nts, a wa rds, o r

• the r pa yme nts re la te d to the inc ide nt.

(4) Me dic a re ha s no t pre vio usly issue d a re c o ve ry de ma nd le tte r.

98

ADDITIONAL CMS ANNOUNCEMENTS

T he $300 thre sho ld do e s no t a pply whe re a n insure r is pa ying o r ha s pa id me dic a l b ills dire c tly o r o n a n

• ng o ing b a sis.

K e e p in mind tha t the $300 thre sho ld is a re c o ve ry thre sho ld ra the r tha n a re po rting thre sho ld.

Se e : http:/ / www.msprc .info / fo rms/ 300%20T hre sho ld%20o n%20L ia b ility%20Se t tle me nts.pdf

99

ADDITIONAL CMS ANNOUNCEMENTS

T he F ixe d Pe r c e ntage Option

Sta rting o n No ve mb e r 7, 2011 the CMS ha s a nno unc e d a F ixe d Pe rc e nta g e Optio n whic h g ive s b e ne fic ia rie s who ha ve a se ttle d a c a se s fo r $5,000 o r le ss the a b ility to re so lve Me dic a re ’ s c la im b y pa ying Me dic a re 25% o f the se ttle me nt inste a d

• f

using the re c o ve ry pro c e ss.

100

ADDITIONAL CMS ANNOUNCEMENTS

F

• r the F

ixe d Pe rc e nta g e Optio n to a pply, the fo llo wing c rite ria must b e me t. (1) T he lia b ility insura nc e (inc luding se lf-insura nc e se ttle me nt is fo r a physic a l tra uma b a se d injury. T his me a ns tha t it do e s no t re la te to ing e stio n, e xpo sure , o r me dic a l impla nt. (2) T he to ta l lia b ility insura nc e se ttle me nt, judg me nt, a wa rd o r o the r pa yme nt is $5000 o r le ss.

101

ADDITIONAL CMS ANNOUNCEMENTS

F

• r the F

ixe d Pe rc e nta g e Optio n to a pply, the fo llo wing c rite ria must b e me t. (3) T he b e ne fic ia ry e le c ts the o ptio n within the re q uire d time fra me a nd Me dic a re ha s no t issue d a de ma nd le tte r o r o the r re q ue st fo r re imb urse me nt re la te d to the inc ide nt. (4) T he b e ne fic ia ry ha s no t re c e ive d a nd do e s no t e xpe c t to re c e ive a ny o the r se ttle me nts, judg me nts, a wa rds, o r o the r pa yme nts re la te d to the inc ide nt.

102

ADDITIONAL CMS ANNOUNCEMENTS

F

• r the F

ixe d Pe rc e nta g e Optio n to a pply, the re q ue st must b e sub mitte d b e fo re o r a t the sa me time No tic e o f Se ttle me nt do c ume nta tio n is sub mitte d. I f the re q ue st is ma de in re spo nse to a Co nditio na l Pa yme nt No tic e , it must b e re c e ive d b y the re spo nse due da te re fe re nc e d in the CPN.

103

ADDITIONAL CMS ANNOUNCEMENTS

I f the F ixe d Pe rc e nta g e Optio n is e le c te d a nd a ppro ve d, the b e ne fic ia ry ma y no t se e k a n a ppe a l

• r wa ive r o f re c o ve ry.

Se e http:/ / www.msprc .info / fo rms/ F ixe d%20Pe rc e nta g e %20Optio n%20I nfo r ma tio n.pdf

104

ADDITIONAL CMS ANNOUNCEMENTS

MSPRC Se lf Se r vic e

On Se pte mb e r 30, 2011 the CMS a nno unc e d a Se lf-Se rvic e I nfo rma tio n fe a ture whic h g ive s c a lle rs the a b ility to g e t the mo st up-to -da te De ma nd a nd Co nditio na l Pa yme nt a mo unts.

105

ADDITIONAL CMS ANNOUNCEMENTS

I n o rde r to a c c e ss the Se lf-Se rvic e F unc tio ns use :

• T

he Ca se I de ntific a tio n numb e r

• T

he b e ne fic ia ry’ s da te o f b irth

• T

he first five le tte rs o f the b e ne fic ia ry’ s la st na me .

• T

he la st fo ur dig its o f the b e ne fic ia ry’ s So c ia l Se c urity Numb e r.

106

CMS UPDATES

JEREM Y BURTO N WILLIA M S M O NTG O M ERY & JO HN LTD JTB@ WILLM O NT.C O M ( 3 1 2 ) 4 4 3 -3 2 8 6

107