New Conditional Payment Portal Functionality Expected in January

By on November 20, 2018
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Long awaited improvements to the Medicare conditional payment reimbursement process may be available at the start of the new year, according to a November 19 alert from The Centers for Medicare and Medicaid Services (CMS). Back in August, CMS announced the Medicare Secondary Payment Recovery Portal (MSPRP) would offer enhanced functionality in 2019, including the ability for authorized Non-Group Health Plan (NCHP) users to self-report leads on liability, auto, no-fault or workers’ compensation cases. According to the alert, this functionality will be effective on January 7, 2019.  CMS is hosting a webinar regarding this enhancement on December 18th, 2018 at 1:00PM EST. A link to register for this webinar can be found here>>CMS 12.18.18 Webinar Registration

The ability to self-report leads will generate Medicare Conditional Payment information that authorized parties can review and/or dispute in accord with their reimbursement obligations under the Medicare Secondary Payer laws. Such enhanced portal functionality should eliminate several weeks of wait time per claim in obtaining Medicare conditional payment information.

This enhancement was initially introduced as a possible improvement for 2019 during a webinar CMS conducted on August 16. A second enhancement allowing online payment of Medicare conditional payments to the MSPRP was also referenced at that time as a possible improvement for 2019. The November 19 CMS alert makes reference to online payment.

Stay tuned to the Gordon & Rees MSPulse for a summary of the December webinar. In the meantime, please contact us should you have any questions.

Filed under CMS, In the News, Medicare, Medicare Secondary Payer, Medicare Set Aside, Uncategorized

CMS Low Dollar Recovery Threshold Remains $750 for 2019

By on November 20, 2018
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There will be no change in the low dollar threshold for Medicare conditional payment reimbursement in 2019. The SMART (Strengthening Medicare And Repaying Taxpayers) Act of 2012 serves to avoid governmental waste by setting an annual amount in which the costs associated with reimbursement outweigh the benefits. The SMART Act provides that the Secretary must calculate and publish not later than November 15th a low dollar threshold amount applicable in the following year for settlements, judgments, awards or other payments in which Medicare Conditional Payment reimbursement need not be reimbursed given the costs associated with recovery. This threshold corresponds also to the $750 threshold for Medicare Mandatory Insurer Section 111 reporting requirement.

On Friday, November 15th, The Centers for Medicare and Medicaid Services released their updated Computation of Annual Recovery Thresholds for Non-Group Health Plans.  Below are the Agency’s findings:

  • The 2019 reporting threshold remains $750 for no-fault, workers’ compensation and liability cases.
  • The estimated cost to process any individual case is $297
  • The average Medicare conditional payment demand amount for settlements of $500 is $368 (74%)
  • The average Medicare conditional payment demand amount for settlements around $750 is $518 (69%)

These metrics once again demonstrate exceedingly high percentages of cost versus recovery for low dollar settlements. The SMART Act applies a common sense approach to recovery efforts, given such costs associated with reimbursement and the interest of avoiding wasteful spending of government money,. The complete notice can be found in the link here>> CMS Computation-of-Annual-Recovery-Thresholds-for-NGHP–2019.pd

Should you have any questions regarding the above or need any Medicare compliance assistance, please do not hesitate to contact Gordon & Rees Medicare Compliance Group.

Filed under CMS, In the News, Medicare, Medicare Conditional Payment, Medicare Set Aside

CMS Issues New WCMSA Reference Guide and Section 111 NGHP User Guide

By on October 10, 2018
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As of October 1, 2018, CMS has issued updated versions of both the WCMSA Reference Guide and the Section 111 NGHP User Guide.

 WCMSA Reference Guide Version 2.8:

The updates found in version 2.8 of the Workers’ Compensation Medicare Set-Aside Reference Guide are as follows:

– As a part of an ongoing process, CMS must discontinue use of Social Security Number-based Medicare identifiers and distribute new randomly selected Medicare identification numbers to all beneficiaries, referred to as Medicare Beneficiary Identifiers (MBIs). Accordingly, all fields formerly labeled HICN are now labeled “Medicare ID” and will accept either an individual’s HICN or MBI (if assigned)

– The link to the CDC Life Expectancy Table has been updated. This link can be found at bullet #7 of Chapter 10.3 of the Reference Guide.

– The Verifying Jurisdiction and Calculation Method for medical reviews has been updated. This information can be found in Tables 9-1 and 9-2 in Chapter 9.4.4 of the Reference Guide.

– Version 2.8 of the WCMSA Reference Guide can be found here.

NGHP Section 111 User Guide Version 5.4:

The updates found in version 5.4 of the Section 111 Non-Group Health Plan User Guide are as follows:

– To meet Section 111 requirements, a Paperwork Reduction Act (PRA) disclosure statement has been added to this guide. This disclosure can be found on page iii of the User Guide.

– The contact protocol for the Section 111 data exchange escalation process has been updated. This escalation process can be found in Sect. 8.2 of the User Guide and in short, provides the contact information for the newly appointed EDI Director.

– In order to ensure updates are applied to recovery cases appropriately, RREs are asked to submit the policy number uniformly with a consistent format. When reporting updates enter the policy number exactly as it is entered on the original submission whether blank, zeros, or a full policy number. This requirement is discussed in greater detail in Sect. 6.6.5 of the User Guide

– The excluded and no-fault excluded ICD-10 diagnosis codes have been updated for 2019. These codes can be found in Table I-1 and J-1 of Chapter V of the User Guide.

– The placement of the decimal point in the excluded ICD-10 “Y codes” of table I-1 has been corrected. For example, in version 5.3 of the User Guide these codes were written as Y921.10 whereas it should be written Y92.110. These codes are now written correctly.

Each chapter of the Section 111 NGHP User Guide, version 5.4 can be found here.

Gordon & Rees remains committed to bringing you the most up to date information regarding all things Medicare Secondary Payer related. Please do not hesitate to contact us should you have any questions about the newest versions of these reference guides.

 

Filed under CMS, In the News, Medicare, Medicare Secondary Payer, Medicare Set Aside

MSP Recovery v. Travelers

By on July 16, 2018
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On June 21, 2018, the U.S. District Court for the Southern District of Florida granted with prejudice, Travelers’ motion to dismiss MSP Recovery’s claim against it for recovery under the Medicare Secondary Payer Act (MSP). This motion was granted, and the case dismissed, based on lack of subject matter jurisdiction. In MSP Recovery Claims v. Travelers Cas. & Sur Co., the court was faced with deciding whether MSP Recovery had standing under the private cause of action provision of the MSP to bring suit against Travelers for recovery of medical payments made to Medicare beneficiaries. See generally MSP Recovery Claims v. Travelers Cas. & Sur. Co., 2018 U.S. Dist. Lexis 105078.

As a brief background, MSP Recovery, LLC is an entity whose business model is relatively simple- it sets out to obtain assignments from Medicare Advantage Organizations (MAOs) in order to attempt to sue and recover for payments made by the MAO for medical treatment of a Medicare beneficiary that allegedly should have been made by a different insurer, or primary payer. This case is similar to a multitude of cases that MSP Recovery and its subsidiaries have filed against insurers across the country, alleging recovery on behalf of an MAO under the MSP. Gordon & Rees has previously covered, and will continue to provide updates on similar cases such as Recovery v. State Farm Mut. Auto. Ins. Co –

In the case at hand, the court did not have to decide whether MSP Recovery’s arguments for recovery here were valid, as it must first determine whether MSP Recovery had standing to bring the case in the first place. MSP Recovery argues that has received an executed assignment from Health First Administrative Plans, Inc. (HFAP), and therefore should be permitted to bring this case under the MSP. While MSP Recovery may have very well received such an assignment, it has been made very clear in several cases now that HFAP is not an MAO, and therefore does not have standing to bring a cause of action against Travelers under the Medicare Secondary Payer Act. The court here agrees with and relies on the reasoning of other district courts in other similar cases, including MSP Recovery Claims, Series LLC v. Auto-Owners Insurance Co. and Recovery v. State Farm Mut. Auto. Ins. C., in holding that HFAP is in fact not an MAO, and at most, the administrative arm of another company that may have an MAO. Given that HFAP, and therefore MSP Recovery, is not an MAO it has not suffered an injury and further, lacks standing under the MSP, this case was dismissed based on lack of subject matter jurisdiction.

While this case represents an unsuccessful attempt by MSP Recovery, LLC to bring a case on behalf of a Medicare Advantage Organization under the MSP, the landscape surrounding MAO recovery rights continues to grow and change. Gordon & Rees will continue to provide the most up to date information as these cases develop.

 

Filed under CMS, In the News, Medicaid Third Party Liability Recoveries, Medicare, Medicare Secondary Payer, Medicare Set Aside

Potential Medicare Legislation and its Impact on The Medicare Approval Process

By on June 26, 2018
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The path from submission of a Medicare Set-Aside (MSA) to final approval can be riddled with many twists, turns and roadblocks along the way. Legislation has been introduced in the last several years to reform this process, but has failed to gain necessary momentum in both the House and Senate for passage. On June 18, 2018, a revised version of this legislation was introduced in the Senate by prior sponsors, Senators Portman (R-OH) and Nelson (D-FL). Senate Bill 3079, Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2018, amends title XVIII of the Social Security Act to include Medicare Set-Aside provisions and guidance for the Medicare approval process.

Bill Highlights

The revised version of this legislation contains many key provisions that would impact Workers’ Compensation Medicare Set-Asides. Some highlights of this Bill are as follows:

  • The Bill allows for an optional proportional adjustment to the MSA in certain circumstances. Specifically, a party to the settlement may elect to calculate a percentage reduction in the MSA “for the total settlement amount that could have been payable under the applicable workers’ compensation law…had the denied… portion of the claim not been subject to a compromised agreement.” Calculation of the MSA reduction is equal to the denied percentage of the settlement. It is unclear how this would actually be argued and implemented to reduce the MSA. Further, this option is only available if the party requesting this reduction has written consent to do so from the other party to the settlement.
  • Submission of a formal MSA proposal is still a voluntary process. In the event of submission, the Secretary of Health and Human Services has sixty (60) days from receipt of the submission to issue a decision approving or denying the MSA. If the MSA amount is denied, the reasons for denial must be clearly outlined in the denial letter.
  • The Bill also offers a formalized appeal process with the potential for judicial intervention. Specifically, subsequent to a request for reconsideration, the parties can request a hearing before an administrative law judge and judicial review of the Secretary’s final determination after the hearing.
  • Rather than self administer or have the MSA professionally administered the MSA fund can be sent directly to CMS. This is an option that could help relieve the financial stress which is currently on the Medicare Trust Fund. All parties must agree to elect this option. The legislation is silent on what would happen if the MSA funds were not depleted by the claimant.
  • In addition, the legislation provides that State Workers’ Compensation Laws should be final and conclusive as to any and all matters within the jurisdiction of the State in determining the reasonableness of settlement value; allocation of settlement funds; the projection of future indemnity or medical benefits expected to be paid under the State Workers’ Compensation Law; and the total amount that could have been payable for a claim in the event of a compromised agreement.

If passed, this legislation would become effective on January 1, 2019. Currently the legislation has been referred to the Committee on Finance.

Follow Up Thoughts:

The legislation is a step forward in defining and implementing a more consistent and clearer Medicare approval process. There are still issues however that remain outstanding including transparency in how the exact amount of the MSA should be calculated, how to create a more realistic approach to controlling prescription drug costs in Medicare Set-Aside allocations, and how these provisions will actually be implemented by CMS. This legislation is an attempt to formalize a more defined MSA process and may make the path to Medicare Set-Aside approval much less thorny and in the end, hopefully, much more rosy.

 

Filed under CMS, Legislation, Medicare Secondary Payer, Medicare Set Aside

What’s in a Name? MSP Recovery LLC Sanctioned in Latest MAO Litigation

By on June 15, 2018
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MSP Recovery LLC, welcome to the Illinois federal courts. This may not be the jurisdiction for you. In a recent decision from the United States District Court for the Central District of Illinois, Peoria Division, not only did the legal group from Miami, now infamous for bringing hundreds of complaints against various insurance carriers under Medicare Secondary Payer reimbursement theories, fail to prevail in yet another effort to collect big money, but it ended up costing them and their attorneys $5,000 each in sanctions.

There are several written decisions about MSP Recovery LLC, many sounding familiar. Assignments, amended complaints, failure to state a claim – it all begins to run together. But when a court states: “This is when things got hairy” halfway through its written decision, something is going down.

The case of Recovery v. State Farm Mut. Auto. Ins. Co 2018 U.S. Dist. LEXIS 95789, U.S. District Court for the Central Dist. Of Ill. (June 7, 2018), began back in March of 2017 when the Plaintiffs filed their original complaint alleging that they were assigned the right to seek reimbursement from the Defendant for Medicare conditional payments made on behalf of a Medicare Advantage Organization. The Defendant filed a successful Motion to Dismiss on the grounds that there was no standing because no injury-in-fact had been alleged. The complaint alleged the Plaintiff had received assignments from the MAO to seek recovery under the MSP, however, the Plaintiffs failed to name the MAO.

On June 2, 2017, the Plaintiffs filed the first Amended Complaint, apparently adding nothing more of consequence to the original complaint than the names of a representative Beneficiary (R.F.) and a representative MAO called Health First Administrative Plans (HFAP). Without furnishing additional details to support an injury-in-fact, the Plaintiffs’ Amended Complaint did not establish standing and was subsequently dismissed.

Undaunted, a Second Amended Complaint was filed on January 30, 2018, substituting the previous representative Beneficiary R.F. with the more representative R.Y. The allegation was that R.Y. was an enrollee in HFAP and Defendant, as a primary payer under the MSP, failed to reimburse HFAP for medical items and services in a timely manner. Illustrating the relationship between MSP Recovery and HFAP, the Plaintiffs attached documentation including a Recovery Agreement and an Assignment document, in which Plaintiff MSP Recovery LLC assigned the rights of HFAP to MSP Recovery Claims Series, LLC. On March 6, 2018, the Defendant filed a Motion to Dismiss the Second Amended Complaint due to lack of standing.

Elsewhere, a court in the Southern District of Florida was busy working on another similar lawsuit filed by MSP Recovery LLC against Auto-Owners Insurance Group. In the course of this litigation it was determined by the testimony of HFAP’s Chief Operating Officer that HFAP was a company that performed administrative duties for a Medicare Advantage Organization called Health First Health Plans.

This distinction was news to the U.S. District Court for the Central District of Illinois, Peoria Division. And they were none too happy that while the Plaintiff had known about it since April 12th, it took a call from the Defendant on April 26th to notify the Court of the mistaken identity. The next day the Court ordered the Plaintiffs to file a response as to why the case should not be dismissed.

That’s when things got hairy.

Apparently the Plaintiffs did not think it was significant to know details like exactly which company assigned to them its rights of recovery. In their May 11, 2018 response to the Court, the Plaintiffs admitted that it was HFHP, not HFAP that had made conditional payments on behalf of R.Y., but had they had an opportunity to make a “minor clarifying” amendment to the Second Amended Complaint, they may have been more precise. Next that they stated that said potential clarification “would not change the substantive validity of the Health First assignments or R.Y.’s adequacy as an exemplar beneficiary,” a position the Court referred to as “palpably absurd and clearly wrong under the law.” The Court was further perturbed that MSP Recovery had not brought the identity of their intended Defendant to their attention until there was a threat of sanctions, rather than when they learned of the distinction weeks earlier.

When a lawsuit is filed, there are obligations that exist to ensure that the facts alleged are truthful and well-researched. The Federal Rules of Civil Procedure provide for sanctions against frivolous lawsuits, and case law indicates that the imposition of sanctions is allowable if the litigating parties should have known their position was groundless. By bringing a lawsuit against a company that does not make any medical payments, much less Medicare conditional payments on behalf of R.Y., a question exists as to whether MSP Recovery’s position was groundless. The law recognizes that corporations are separate and distinct legal entities and cause must be shown to ignore the corporate form.

The MSP Recovery LLC attorneys attempted to show they were not personally involved in the Auto-Owners matter, presumably to suggest they weren’t aware of the testimony, because they had not entered appearances in that case. The Court did not buy it, nor did they buy the Plaintiff’s explanation that the two separate companies are all part of the Health First “corporate family,” complicating their ability to identify the correct entity. And while this case is certainly not the longest legal battle in MSP history, it went on long enough for the Court to acknowledge the Plaintiff had wasted time and resources with its groundless claim.

Upon issuing the sanctions, the Court stated its purpose to “deter repetition of the conduct or comparable conduct by others similarly situated.” Given the prolific manner in which MSP Recovery LLC has been filing complaints that other courts have also determined to be less than adequate, it will be interesting to see whether this case results in a true deterrent or merely a slap on the wrist.

 

Filed under In the News, Medicare Advantage Plans, Medicare Secondary Payer

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