Workers' Compensation Claims and the Medicare Secondary Payer Act - - PowerPoint PPT Presentation

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Workers' Compensation Claims and the Medicare Secondary Payer Act

Meeting Reporting Requirements, Satisfying Liens, and Establishing Set-Asides in Settlements

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, FEBRUARY 1, 2017

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Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

John V. Cattie, Jr., Founding Member , Cattie, P.L.L.C., Charlotte, N.C.

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5

Workers’ Workers’ Compensation Claims Compensation Claims and the Medicare and the Medicare Secondary Payer Act Secondary Payer Act Workers’ Workers’ Compensation Claims Compensation Claims and the Medicare and the Medicare Secondary Payer Act Secondary Payer Act

6

I.

Medicare Secondary Payer – A Statutory Analysis

II.

• II. MMSEA Section 111

MMSEA Section 111

III.

• III. Conditional Payments

Conditional Payments

IV.

• IV. Future Medicals and MSAs

Future Medicals and MSAs

V.

• V. MSP Changes in 2017

MSP Changes in 2017

I.

Medicare Secondary Payer – A Statutory Analysis

II.

• II. MMSEA Section 111

MMSEA Section 111

III.

• III. Conditional Payments

Conditional Payments

IV.

• IV. Future Medicals and MSAs

Future Medicals and MSAs

V.

• V. MSP Changes in 2017

MSP Changes in 2017

7

I.

Medicare Secondary Payer – A Statutory Analysis A) Conditional Payments B) Medicare Set-Asides C) MMSEA Section 111 Reporting Common theme = Was Claim Accepted or Denied?

I.

Medicare Secondary Payer – A Statutory Analysis A) Conditional Payments B) Medicare Set-Asides C) MMSEA Section 111 Reporting Common theme = Was Claim Accepted or Denied?

8

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

MSP – A Statutory Analysis

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

9

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

MSP – A Statutory Analysis

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

10

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

MSP – A Statutory Analysis

“Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that – payment has been made or can reasonably be expected to be made under a workmen’s compensation law

• r plan of the United States or a State

…” 42 U.S.C. § 1395y(b)(2)(a)(ii)

11

MSP – A Statutory Analysis

“Payment Reasonably Expected To Be Made” “Payment Has Been Made”

12

Past Medicals Future Medicals

“ … an applicable plan shall –

(i) Determine whether a claimant (including an

individual whose claim is unresolved) is entitled to benefits under the program under this subchapter on any basis; and

(ii) If the claimant is determined to be so entitled,

submit the information described in subparagraph (B) with respect to the claimant to the Secretary in a form and manner (including frequency) specified by the Secretary.” 42 U.S.C. § 1395y(b)(8)

MSP – A Statutory Analysis

“ … an applicable plan shall –

(i) Determine whether a claimant (including an

individual whose claim is unresolved) is entitled to benefits under the program under this subchapter on any basis; and

(ii) If the claimant is determined to be so entitled,

submit the information described in subparagraph (B) with respect to the claimant to the Secretary in a form and manner (including frequency) specified by the Secretary.” 42 U.S.C. § 1395y(b)(8)

13

MMSEA Section 111 MMSEA Section 111

14

II. MMSEA Section 111 A) What Triggers MMSEA Section 111? B) Reporting Nuts & Bolts C) Low Dollars Thresholds II. MMSEA Section 111 A) What Triggers MMSEA Section 111? B) Reporting Nuts & Bolts C) Low Dollars Thresholds

15

Who Must Report? “Information is to be reported for claims related to liability insurance (including self-insurance), no-fault insurance, and workers’ compensation where the injured party is (or was) a Medicare beneficiary and medicals are claimed and/or released or the settlement, judgment, award, or

• ther payment has the effect of releasing

medicals.” User Guide v. 5.2, Chapter 6.5.1

MMSEA Section 111

Who Must Report? “Information is to be reported for claims related to liability insurance (including self-insurance), no-fault insurance, and workers’ compensation where the injured party is (or was) a Medicare beneficiary and medicals are claimed and/or released or the settlement, judgment, award, or

• ther payment has the effect of releasing

medicals.” User Guide v. 5.2, Chapter 6.5.1

16

2 Possible Reports 2 Possible Reports

ORM – Ongoing Responsibility for Medicals TPOC – Total Payment Obligation to Claimant

MMSEA Section 111

2 Possible Reports 2 Possible Reports

ORM – Ongoing Responsibility for Medicals TPOC – Total Payment Obligation to Claimant

17

MMSEA Section 111

Report Required for Cumulative Total TPOC Amounts Reporting Optional for Cumulative Total TPOC Amounts Most Recent TPOC Date is On or Between Reporting Required Quarter Beginning

TPOC > $5,000 $300 < TPOC ≤ $5,000 10/1/2010 to 9/30/2013 1/1/2011 TPOC > $2,000 $300 < TPOC ≤ $2,000 10/1/2013 to 9/30/2014 1/1/2014

User Guide v. 5.2, Chapter 6.5.1

18

$300 < TPOC ≤ $2,000 10/1/2013 to 9/30/2014 TPOC > $300 N/A 10/1/2014 or after 1/1/2015 TPOC > $750 $0 < TPOC ≤ $750 10/1/2016 or after 1/1/2017

Conditional Payments

19

III. Conditional Payments A) The CRC – a new process for E/Cs B) CPNs v. CPLs – a distinction with a difference III. Conditional Payments A) The CRC – a new process for E/Cs B) CPNs v. CPLs – a distinction with a difference

20

Conditional Payments CRC

• Commercial

Repayment Center;

• Accepted WC claims

and No Fault Claims where limits not yet exhausted. BCRC

• Benefits Coordination

and Recovery Center;

• Liability Insurance,

Auto and No Fault Claims where limits exhausted. CRC

• Commercial

Repayment Center;

• Accepted WC claims

and No Fault Claims where limits not yet exhausted. BCRC

• Benefits Coordination

and Recovery Center;

• Liability Insurance,

Auto and No Fault Claims where limits exhausted.

21

1) 1)

CMS notified that applicable plan has CMS notified that applicable plan has responsibility for medicals. responsibility for medicals.

2) 2)

CRC searches CMS records for claims CRC searches CMS records for claims paid based on information reported. paid based on information reported.

3) 3)

CRC issues CPN to applicable plan. CRC issues CPN to applicable plan.

4) 4)

Applicable plan submits a dispute. Applicable plan submits a dispute.

5) 5)

CRC issues recovery demand letter CRC issues recovery demand letter advising amount of money owed to CMS. advising amount of money owed to CMS.

6) 6)

Applicable plan submits an appeal. Applicable plan submits an appeal.

7) 7)

Applicable plan submits payment. Applicable plan submits payment.

Conditional Payment Recovery Process

1) 1)

CMS notified that applicable plan has CMS notified that applicable plan has responsibility for medicals. responsibility for medicals.

2) 2)

CRC searches CMS records for claims CRC searches CMS records for claims paid based on information reported. paid based on information reported.

3) 3)

CRC issues CPN to applicable plan. CRC issues CPN to applicable plan.

4) 4)

Applicable plan submits a dispute. Applicable plan submits a dispute.

5) 5)

CRC issues recovery demand letter CRC issues recovery demand letter advising amount of money owed to CMS. advising amount of money owed to CMS.

6) 6)

Applicable plan submits an appeal. Applicable plan submits an appeal.

7) 7)

Applicable plan submits payment. Applicable plan submits payment.

22

Difference between CPN and CPL

CPN = Conditional Payment Notice

• Medicare believes rights have ripened;
• Money owed immediately;

Clock has started – submit a dispute timely; If no dispute submitted timely, recovery demand issued. CPL = Conditional Payment Letter Medicare does not believe rights have ripened (yet); Money not owed immediately; Clock does not start until claim is resolved.

Conditional Payment Recovery Process

Difference between CPN and CPL

CPN = Conditional Payment Notice Medicare believes rights have ripened; Money owed immediately;

• Clock has started – submit a dispute timely;
• If no dispute submitted timely, recovery demand issued.

CPL = Conditional Payment Letter

• Medicare does not believe rights have ripened (yet);
• Money not owed immediately;
• Clock does not start until claim is resolved.

23

Future Medicals and Future Medicals and MSAs MSAs Future Medicals and Future Medicals and MSAs MSAs

24

IV . Future Medicals and MSAs A) MSAs in Accepted Claims B) MSAs in Denied Claims

25

MSAs in Accepted MSAs in Accepted Claims Claims MSAs in Accepted MSAs in Accepted Claims Claims

26

Future Medicals and MSAs

• MSP Act prohibits Medicare from paying for

medicals where payment has been made under a workers’ compensation plan;

• MSP Act does not require MSAs (nor mention

them);

• Therefore, look next to the MSP regulations for

CMS’ official statutory interpretation.

27

• MSP Act prohibits Medicare from paying for

medicals where payment has been made under a workers’ compensation plan;

• MSP Act does not require MSAs (nor mention

them);

• Therefore, look next to the MSP regulations for

CMS’ official statutory interpretation.

Future Medicals and MSAs – 42 C.F.R. § 411.46 Commutations

• 42 C.F

.R. § 411.46(a);

• Stipulation by parties

means Medicare won’t pay until entire lump sum allocation exhausted Compromises

• 42 C.F

.R. § 411.46(d);

• Basic rule = Medicare

pays future meds;

• Exception = where

parties make future medical allocation, claimant pays down 1st. Commutations

• 42 C.F

.R. § 411.46(a);

• Stipulation by parties

means Medicare won’t pay until entire lump sum allocation exhausted Compromises

• 42 C.F

.R. § 411.46(d);

• Basic rule = Medicare

pays future meds;

• Exception = where

parties make future medical allocation, claimant pays down 1st.

28

Future Medicals and MSAs – CMS Guidance

• Started in 2001 with Patel Memo;
• 16 WCMSA policy memos overall;
• Now consolidated into WCMSA Reference Guide.

29

• Started in 2001 with Patel Memo;
• 16 WCMSA policy memos overall;
• Now consolidated into WCMSA Reference Guide.

30

Future Medicals and MSAs – CMS Guidance Sections of Interest

• § 1.0 – CMS review not required.
• § 3.0 – Claimant’s responsibility to consider

Medicare’s future interest;

• § 4.1.4 – Hearings on the merits of a case;
• § 8.1 – Review thresholds ≠ safe harbors;
• § 10.2 – Consent to release note required;
• § 16.0 – No appeals process.

31

Sections of Interest

• § 1.0 – CMS review not required.
• § 3.0 – Claimant’s responsibility to consider

Medicare’s future interest;

• § 4.1.4 – Hearings on the merits of a case;
• § 8.1 – Review thresholds ≠ safe harbors;
• § 10.2 – Consent to release note required;
• § 16.0 – No appeals process.

MSAs in MSAs in Denied WC Claims: Denied WC Claims: Fact Vs. Fiction Fact Vs. Fiction MSAs in MSAs in Denied WC Claims: Denied WC Claims: Fact Vs. Fiction Fact Vs. Fiction

32

Fact: Medicare’s Fact: Medicare’s recovery rights under recovery rights under the MSP Act are not the MSP Act are not automatic. automatic. Fact: Medicare’s Fact: Medicare’s recovery rights under recovery rights under the MSP Act are not the MSP Act are not automatic. automatic.

33

Fiction: The MSP Act Fiction: The MSP Act requires MSAs. requires MSAs. Fiction: The MSP Act Fiction: The MSP Act requires MSAs. requires MSAs.

34

Fact: An MSA might be Fact: An MSA might be appropriate for appropriate for anyone, not just anyone, not just current beneficiaries. current beneficiaries. Fact: An MSA might be Fact: An MSA might be appropriate for appropriate for anyone, not just anyone, not just current beneficiaries. current beneficiaries.

35

Fiction: When future Fiction: When future medical expenses are medical expenses are expected to be expected to be incurred, an MSA must incurred, an MSA must be funded. be funded. Fiction: When future Fiction: When future medical expenses are medical expenses are expected to be expected to be incurred, an MSA must incurred, an MSA must be funded. be funded.

36

Fact: A denied WC claim Fact: A denied WC claim represents a compromise represents a compromise situation as opposed to a situation as opposed to a commutation under the commutation under the federal regulations. federal regulations. Fact: A denied WC claim Fact: A denied WC claim represents a compromise represents a compromise situation as opposed to a situation as opposed to a commutation under the commutation under the federal regulations. federal regulations.

37

Fiction: The CMS WCMSA Fiction: The CMS WCMSA Reference Guide is the Reference Guide is the

• nly place to look for how
• nly place to look for how

CMS handles future CMS handles future medical expenses. medical expenses. Fiction: The CMS WCMSA Fiction: The CMS WCMSA Reference Guide is the Reference Guide is the

• nly place to look for how
• nly place to look for how

CMS handles future CMS handles future medical expenses. medical expenses.

38

Fact: The regulations, Fact: The regulations, like the statute itself, like the statute itself, do not address MSAs. do not address MSAs. Fact: The regulations, Fact: The regulations, like the statute itself, like the statute itself, do not address MSAs. do not address MSAs.

39

Fiction: The regulations Fiction: The regulations address future medicals address future medicals for commutation cases for commutation cases exactly how they address exactly how they address future medicals for future medicals for compromise cases. compromise cases. Fiction: The regulations Fiction: The regulations address future medicals address future medicals for commutation cases for commutation cases exactly how they address exactly how they address future medicals for future medicals for compromise cases. compromise cases.

40

Fact: Submitting MSAs Fact: Submitting MSAs is a voluntary process. is a voluntary process. Fact: Submitting MSAs Fact: Submitting MSAs is a voluntary process. is a voluntary process.

41

Fiction: CMS workload Fiction: CMS workload review thresholds review thresholds provide safe harbor for provide safe harbor for those cases failing to those cases failing to meet threshold. meet threshold. Fiction: CMS workload Fiction: CMS workload review thresholds review thresholds provide safe harbor for provide safe harbor for those cases failing to those cases failing to meet threshold. meet threshold.

42

Fact: CMS is willing to Fact: CMS is willing to review a $0 MSA review a $0 MSA proposal. proposal. Fact: CMS is willing to Fact: CMS is willing to review a $0 MSA review a $0 MSA proposal. proposal.

43

Fiction: It takes CMS the Fiction: It takes CMS the same amount of time to same amount of time to review a $0 MSA review a $0 MSA proposal as it does any proposal as it does any

• ther MSA proposal.
• ther MSA proposal.

Fiction: It takes CMS the Fiction: It takes CMS the same amount of time to same amount of time to review a $0 MSA review a $0 MSA proposal as it does any proposal as it does any

• ther MSA proposal.
• ther MSA proposal.

44

Fact: Once you’ve Fact: Once you’ve voluntarily asked CMS voluntarily asked CMS to review your $0 MSA, to review your $0 MSA, you’ve agreed to play you’ve agreed to play by CMS’ own rules. by CMS’ own rules. Fact: Once you’ve Fact: Once you’ve voluntarily asked CMS voluntarily asked CMS to review your $0 MSA, to review your $0 MSA, you’ve agreed to play you’ve agreed to play by CMS’ own rules. by CMS’ own rules.

45

Fiction: The MSP Act Fiction: The MSP Act always preempts state always preempts state law with respect to law with respect to future medical future medical expenses. expenses. Fiction: The MSP Act Fiction: The MSP Act always preempts state always preempts state law with respect to law with respect to future medical future medical expenses. expenses.

46

Fact: Medicare is not a party Fact: Medicare is not a party to the WC claim; instead, it’s to the WC claim; instead, it’s the most important potential the most important potential “lienholder” to consider “lienholder” to consider when resolving the WC when resolving the WC claim. claim. Fact: Medicare is not a party Fact: Medicare is not a party to the WC claim; instead, it’s to the WC claim; instead, it’s the most important potential the most important potential “lienholder” to consider “lienholder” to consider when resolving the WC when resolving the WC claim. claim.

47

V . MSP Changes in 2017

48

MSP Changes in 2017 CMS Seeking New WCMSA Review Contractor

• Bids due February 8, 2017;
• Anticipated contract award date June 30, 2017;
• Contract start date July 1, 2017.

Why is this important?

49

CMS Seeking New WCMSA Review Contractor

• Bids due February 8, 2017;
• Anticipated contract award date June 30, 2017;
• Contract start date July 1, 2017.

Why is this important?

LMSA Development

Date Action

Sept 2011

CMS Issues Its Only LMSA Policy Memo.

June 2012

ANPRM Issued.

50

June 2012 August 2013

NPRM Issued.

October 2014

NPRM Voluntarily Withdrawn.

June 2016

CMS Alert re: Considering Expanding Formal Review to LMSAs.

December 2016

CMS Issues RFP for WCMSA Review Contractor Services, Reveals Intent to Launch Formal LMSA Review Process.

RFP for WCMSA Review Contractor

51,000 51,000 LMSAs LMSAs

• New RFP contains

LMSA direction;

• 51,000 = high-end

estimate CMS places

• n its contractor’s

ability to review LMSAs;

• Appears CMS is

foregoing rulemaking process route.

51,000 51,000 LMSAs LMSAs

• New RFP contains

LMSA direction;

• 51,000 = high-end

estimate CMS places

• n its contractor’s

ability to review LMSAs;

• Appears CMS is

foregoing rulemaking process route.

51

Why LMSAs ≠ WCMSAs

Workers’ Compensation Liability Insurance Statute Statute Regulations Regulations

52

Regulations Regulations CMS Guidance CMS Guidance Formal Review Process Formal Review Process

Conclusions

• Recent changes in all MSP areas
• Make sure you can stay on top of all the changes
• If you can’t, seek help:



Reporting agent



Recovery agent



Law firm or MSA vendor

Conclusions

• Recent changes in all MSP areas
• Make sure you can stay on top of all the changes
• If you can’t, seek help:



Reporting agent



Recovery agent



Law firm or MSA vendor

53

54