Medivest - Solutions for Workers' Compensation and Liability Settlements

10/Jan/2024

CMS updated the Medicare Secondary Payer Recovery Portal (MSPRP) User Guide on January 8, 2024 to version 6.0, which outlines updated functionality and improvements to the Portal. The User Guide can be found here.

Changes of Note

Chapter 1 contains a summary of updates / changes, many of which are administrative in nature.

One change of a substantive nature is that the definition of a disputed claim has been updated (Table 15-13).

Language on the Case Creation Continued page for self-reporting a case that is non-trauma based has been updated and clarified (Table 13-3).

Also, to reduce the number of cases submitted in error, beneficiaries, insurers, and authorized representatives now have the ability to close and permanently remove a case from their account that was reported via the MSPRP in error (Sections 12.1.3 and 12.2.4).

Probably most importantly, MSPRP users can now submit any type of correspondence for BCRC or CRC cases via the MSPRP portal. A generic Submit Case Documentation action has been added to the Case Information page, along with subsequent pages used to upload and submit documents. This is extremely helpful because in the past only certain types of documents could be uploaded on the portal and otherwise, had to be faxed or mailed in with the added time and hassle of having to confirm receipt at a later date. Now, all types of documents may be uploaded. This will save time and will help simplify the process for any case and especially those more complex cases that have multiple defendant and/or UIM payers.

Lastly, the Letter Activity tab has been renamed Correspondence Activity and references to these screens and sections have been updated throughout the application (Section 15.1.2.13).

For Additional Information

Count on Medivest to help keep you up to date with the constant updates, guidance, and rule changes related to CMS’s enforcement of the MSP on a regular basis. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Medivest

04/Jan/2024

CMS will be hosting a webinar regarding Certain Civil Money Penalties Final Rule for NGHP Responsible Reporting Entities (RREs). The format will be opening remarks and a presentation by CMS that will include discussion of the Final Rule, the auditing process and important dates, followed by a question and answer session. RREs who would like to submit questions in advance of the webinar are encouraged to do so using the dedicated resource mailbox at Sec111CMP@cms.hhs.gov.

Date: January 18, 2024
Time: 1:00 PM ET

Webinar Link: https://cms.zoomgov.com/s/1614664558?pwd=enlySUNSSjF1UnMzUy9vRWJodWl1dz09
Passcode: 513018

Or to connect via phone:

Conference Dial In: (833) 568-8864
Conference Passcode: 161 466 4558

Important Note: This is a public webinar and there is no pre-registration needed. The webinar link should only be utilized the day of the webinar. Due to the number of expected participants, please log in at least 10 minutes prior to the start of the presentation.

CMS has also announced it will be hosting a webinar regarding Certain Civil Money Penalties Final Rule for GHP Responsible Reporting Entities (RREs). Information on that webinar can be found on CMS’s website.

Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.

Medivest

06/Dec/2023

On December 4th, 2023, Centers for Medicare & Medicaid Services (CMS) shared a new report titled Workers’ Compensation Medicare Set-Aside (WCMSA) Fiscal Year Statistics 2023. The report provides four fiscal years of data regarding Workers’ Compensation Medicare Set-Aside (WCMSA) Proposed Value and Workers’ Compensation Review Contractor Values (WCRC) from 2020 to 2023.

Takeaways

Total Submissions
Total WCMSA submissions to CMS declined steadily between CMS’ FY 2020 and FY 2022, descending from 16,517 to 13,752, a reduction of almost 17% in three years. FY 2023’s 15,743 submission count represents a reversal of that trend for the time being. This may be the result of the appearance of Section 4.3 in the WCMSA Reference Guide in 2022, in which CMS speaks about “non-submit” or “evidence-based” MSA programs, describing them as “a potential attempt to shift financial burden”.

Proposed vs Recommended
Those who decided to voluntarily submit their proposed WCMSA to CMS for review were rewarded with recommendations that were, all told, 22.95% percent higher than the proposed amount. For comparison, the average percentage difference between the submitter’s proposed MSA and CMS’ recommended MSA for CMS’ FY 2020 through FY 2022 was 13.9%. This is an increase of roughly 65% in CMS’ FY 2023 versus the prior three years’ average. Not only is the counter percentage higher, but the total recommended amount is higher. So, it’s not as if submitters have been lowballing their submissions. For those who embraced a non-submit program for fear of significantly higher MSA counters, CMS dangled no carrots in FY 2023 to encourage a return to voluntary submission.

Proposed MSAs and Total Settlement Amounts
WCMSAs submitted by the industry have, on average, consistently ranged between a proposed amount of $70,439 and $74,847 between CMS’ FY 2020 and FY 2023. Total Settlements utilizing WCMSAs over the same period have averaged between $159,579 and $171,170. Accordingly, WCMSAs constitute around 43% of the total settlement amount in which they are included (pre-CMS recommendation).

Medical vs Rx
Medical expenses with MSAs have increased steadily in recent years and CMS’ FY 2023 is no exception. CMS’ recommended total for the medical portion of submitted WCMSAs is up 13% since 2020. Conversely, Rx expenses have declined by 33%. While several factors are likely to be at play here, CMS’ use of sometimes aggressive NDCs to price drugs may be one culprit. Medivest consistently sees submitted MSAs priced using drug NDCs unavailable in the actual market, and well below market average.

The Big Question

These are statistics from those WCMSA’s submitted for approval, meaning they were written by industry-trained professionals in an attempt to match CMS’ recommended methodology. If the industry is consistent, what has changed at CMS? Also, what does this say about CMS’s position concerning non-submitted WCMSA’s that were written to Evidence-Based Medicine or other non-submit standards in light of the previously modified Section 4.3 of the WCMSA Reference Guide?

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us directly at 877.725.2467.

Medivest

24/Oct/2023

Last year, Medivest wrote about the importance of protecting your client’s government benefits during the settlement process. The full blog can be read here, but to quickly summarize:

If settlement proceeds are handled incorrectly, eligibility for government benefits may be jeopardized. Depending on the eligibility criteria of the specific benefit program, different planning solutions and courses of action should be considered to help the injured party maintain their benefit eligibility.

However, attorneys need to be aware of another potential risk for their clients’ means-tested benefits. If your client is fundraising to cover the cost of their medical bills and/or services and equipment that insurance does not cover, they could potentially lose their government benefits, particularly Medicaid and Supplemental Security Income (SSI) before the settlement has even begun.

How Benefits Become Endangered

Because the settlement process is often a slow one, crowdfunding services such as GoFundMe have become an increasingly common way for injured parties to cover their medical expenses. When someone engages in fundraising and receives donations or contributions, it can increase their income and assets, potentially pushing their financial situation above the eligibility threshold for these government benefits. Here is how it can happen:

1. Income Increase: Fundraising often involves receiving money or valuable items as donations from friends, family, or the community. This additional income can be considered when determining eligibility for means-based benefits. The increase in income may exceed the allowable limits set by the government program.

1. Asset Accumulation: In some cases, fundraising can lead to an accumulation of assets or resources, such as savings accounts, stocks, or valuable items. These assets can also be taken into account when determining eligibility for government benefits, as they may exceed the allowed asset thresholds.

1. Reduced Benefit Amounts: If a person’s income or assets exceed the program’s limits, they may no longer qualify for certain government benefits, or their benefit amount may be reduced. This can result in a loss of crucial financial support, including healthcare coverage, food assistance, or cash benefits.

1. Reapplication and Reporting Requirements: Individuals receiving means-based benefits are typically required to report any changes in their financial situation promptly. Failure to report increased income or assets from fundraising can result in legal consequences, including the requirement to repay benefits received improperly.

1. Loss of Eligibility: In some cases, if an individual’s income or assets exceed the program’s limits, they may become ineligible for benefits altogether. This can lead to financial hardship for the person and their family, as they may have been relying on these benefits to meet their basic needs.

This does not mean fundraising should be avoided by an injured party. It simply means it should be done carefully and with consultation. Setting up a special needs trust or ABLE account is a good practice, but most clients (and some attorneys) would need outside professional assistance setting one up. However, for plaintiffs in the early stages of settlement, a new charity called The Plaintiff Fund may provide an effective additional option.

The Plaintiff Fund

Beginning in January of 2024, the Plaintiff Fund will provide plaintiffs support in creating a medical fundraising campaign, with $1,000 toward their medical expenses, and a national resource network of medical service and product providers. So not only are plaintiffs able to get a partner experienced with fundraising and a start-up donation, but they also get peace of mind knowing their government benefits will remain intact.

Even after settlement is completed, some plaintiffs may learn that their medical bills and expenses exceed the future medicals portion of their settlement. The Plaintiff Fund is available for those individuals as well and is a great support tool for attorneys to offer their client after the case is completed.

The Plaintiff Fund will be invaluable to many plaintiffs. We at Medivest are proud to support it! Everyone who supports plaintiffs should get involved! For further information about the Plaintiff Fund or to make a donation to their cause, visit them at website. For additional services to stretch and protect the medical portion of your clients’ settlement, such as Professional Medicare Set-Aside Administration, contact Medivest here.

Medivest

19/Oct/2023

CMS will be hosting a Section 111 Workers’ Compensation Reporting Webinar on Monday November 13, 2023 applicable to all primary plans considered Non-Group Health Plans (NGHP) including Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation. Section 111 is also known as Mandatory Insurance Reporting and CMS will be focus its webinar on the expansion of Section 111 Non-Group Health Plan (NGHP) Total Payment Obligation to Claimant (TPOC) reporting to include Workers’ Compensation Medicare Set-Aside (WCMSA) information.

As usual, the format will include opening remarks and then a presentation by CMS that will include background and timelines, followed by a question-and-answer session. CMS has indicated that “because this expansion impacts reporting of WCMSAs, it is strongly recommended that Responsible Reporting Entities (RREs) who report Workers’ Compensation settlements attend.”

Date: November 13, 2023
Time: 1:00 PM ET

Webinar Link: htps://cms.zoomgov.com/j/1606789743?pwd=VzZ0Uk96ZWs1NUUvbm5xUnpJU2l4Zz09

Passcode: 100553

Or to connect via phone:

Conference Dial In: 1-833-568-8864
Conference Passcode: 160 678 9743

Due to the number of expected participants, please log in at least 10 minutes prior to the start of the presentation.

Medivest

14/Sep/2023

On September 13^th 2023, the Centers for Medicare & Medicaid Services (CMS) announced an upcoming increase to the maximum settlement amount for the Fixed Percentage Demand Calculation Option.

When settling a liability or workers’ compensation case, a beneficiary, or their attorney (or other representative) may request that Medicare’s demand amount be calculated using the Fixed Percentage Option. Currently the total settlement amount for the Fixed Percentage Option cannot exceed $5,000. Effective October 2, 2023, the maximum settlement amount will be raised to $10,000.

What is the Fixed Percentage Option?

The Fixed Percentage Option offers a simple, straightforward process to obtain the amount due to Medicare. It eliminates time and resources typically associated with the Medicare Secondary Payer (MSP) recovery process since you will not have to wait for Medicare to determine the conditional payment amount prior to settlement. The Fixed Percentage Option may be elected, if the following eligibility criteria are met:

- - The liability insurance (including self-insurance) settlement, judgment, award or other payment is related to an alleged physical trauma- based incident and;
  - The total settlement is for $5,000 (Note this amount will be raised to $10,000, effective October 2, 2023) or less.
  - You elect the option within the required timeframe and Medicare has not issued a demand letter or other request for reimbursement related to the incident.
  - You have not received and do not expect to receive any other settlements, judgments, awards, or other payments related to the incident.

For More Information

For additional information on the Fixed Percentage Option, please see the Fixed Percentage Option Presentation and the Fixed Percentage Model Language at CMS.Gov and consult the Downloads Section. To learn more about protecting the medical portion of your clients’ workers’ compensation and liability settlements, contact Medivest about Medicare Set-Aside Professional Administration.

Medivest

22/May/2023

On Tuesday, June 6th, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP Unsolicited Response File option. The full notice can be read below:

Section 111 Non-Group Health Plan (NGHP) Unsolicited Response File Webinar Tuesday June 6, 2023

Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation

CMS will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP Unsolicited Response File option. The format will be opening remarks by CMS, a presentation that will include background as well as how to opt in and what to expect, followed by a question and answer session. For questions regarding this topic, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110- 173SEC111-comments@cms.hhs.gov.

Date: June 6, 2023
Time: 1:00 PM ET

Webinar Link: https://cms.zoomgov.com/j/1601170809?pwd=YU1YN3BGYjhKWTNBR3AyT3o4emFWQT09

Passcode: 558113

Or to connect via phone

Conference Dial In: 1-833-568-8864
Conference Passcode: 160 117 0809

Due to the number of expected participants please log in at least 10 minutes prior to the start of the presentation.

Medivest

10/May/2023

On March 24, 2023, Governor Ron DeSantis signed House Bill 837 into law ushering in the most significant tort reform the state of Florida has seen in decades. The new legislation took effect immediately upon signing and will have a huge impact on the judicial system, particularly for personal injury cases against those at fault regardless of whether insured and in lawsuits directly against insurance companies when there are allegations of Bad Faith.

According to Governor Ron DeSantis, “Florida has been considered a judicial hellhole for far too long and we are desperately in need of legal reform that brings us more in line with the rest of the country. I am proud to sign this legislation to protect Floridians, safeguard our economy and attract more investment in our state.”

A Brief Summary

To read the new law in full detail click here. Some of the major highlights of the HB 837 that will have the most impact are as follows:

Modified Comparative Negligence Framework

Florida has in the past been a pure Comparative Negligence state so even if an injured party were more than 50% at fault for their injuries, they could make a claim for damages for the percentage of fault caused by a third party. Plaintiffs will now be barred from recovery if they are more than 50% at fault for their injuries. This change does not apply to actions based on medical negligence.

Two Year Negligence Statute of Limitations

The Statute of Limitations in negligence actions will cut the current statute in half. Claimants will now have two years from the time the cause of action accrues to file suit.

Limiting Bad Faith Lawsuits Against Insurers

The new law states mere negligence alone is insufficient to constitute bad faith in both statutory and common-law actions against an insurer. It also mandates the claimant and the claimant’s attorney to act in good faith when furnishing information regarding the claim, issuing demands, setting deadlines, and attempting to settle.

Attorney-Client Privilege for Treating Physicians

The referral and financial relationships between the plaintiff’s personal injury firms and the treating physicians will no longer be protected under attorney-client privilege.

Standards of Admissibility of Medical Evidence

HB 837 changes what constitutes admissible evidence in establishing past, present and future medical expenses. Going forward, the admissibility of evidence at trial of past medical treatment is limited to the amount actually paid to medical providers regardless of the source of payment (health insurance provider, workers’ compensation insurance carrier, etc.). Additionally, evidence offered to prove the amount necessary to satisfy unpaid charges will be limited to how much the claimant is obligated to pay if the claimant has health care coverage other than Medicare or Medicaid.

Regarding Attorney Fees

HB 837 eliminates multipliers for attorney fees with a presumption that the newly enacted Lodestar method is sufficient and reasonable. Additionally, many of the statutes that provide for one-way attorney’s fees in actions involving insurers have been repealed.

Presumption Against Liability of Property Owners

A new section of the Florida Statutes has been created with a presumption against liability for owners and operators of multifamily residential property in cases based on criminal acts upon the premises by third parties.

Questions About Your Liability Case?

Medivest offers a full suite of settlement solutions that address MSP exposure and protect Medicare’s interests in a liability settlement. For a free case consultation, click here and one of our settlement consultants will assist you.

Medivest

14/Apr/2023

Whether they are working for an employer or are an independent driver/owner-operator, truckers face a number of on-the-job risks that make the profession at higher risk than most others.

Obviously, driving on the road itself is a hazard. The National Highway Traffic Safety Administration (NHTSA) publishes annual statistics on motor vehicle crashes in the United States, including those involving trucks. The most recent data available is for the year 2020, during which there were 4,761 fatalities and 112,000 injuries in crashes involving large trucks. But for truckers, accidents are not just limited to the road. They can occur in parking lots, warehouses, and at other any other stops where they may load or unload their freight.

According to data from the Bureau of Labor Statistics, the trucking industry has a relatively high rate of workers’ compensation claims compared to other industries. The rate of workers’ compensation claims in the trucking industry was 2.6 claims per 100 full-time equivalent workers in 2019, compared to a rate of 0.8 claims per 100 full-time equivalent workers across all industries. However, this does not fully portray the true number of accidents and risk, as many truckers will not qualify for workers’ compensation due to their status as an owner-operator.

Determining the Liable Party

Truck accident cases are complex because of the numerous parties involved in the industry. Determining who is liable can be a difficult process for the settling parties. Depending on the cause of the accident, the fault could either be the truck driver, another driver on the road, a maintenance provider, a manufacturer or even multiple entities may share fault. All of these factors are weighed when liability is being assessed.

Employment Status May Make Difference

For a driver who is employed by a trucking company, the accident and claims process is typical and is usually handled directly by their employer. However, independent truckers/owner-operators may have a more complicated situation on their hands. More factors are potentially at play and need to be considered in the event they are an accident victim.

If an owner-operators is injured while working, they may be eligible for workers’ compensation benefits if they are considered an employee under the relevant state law. The specific requirements for qualifying for workers’ compensation benefits vary by state and may depend on factors such as the nature of the work being performed, and the degree of control exercised by the trucking company over the owner-operators ‘s work.

If the owner-operators is not eligible for workers’ compensation benefits, they may be able to pursue a personal injury claim against the trucking company or other parties who may be responsible for the accident. This could include claims for medical expenses, lost wages, pain and suffering, and other damages related to the injury.

The owner-operator should consult with an attorney who specializes in personal injury law to understand their legal options and to ensure that their rights are protected. An attorney can also help them navigate the claims process and negotiate with insurance companies on their behalf.

The Right Tools for a Transportation Related Settlement

Additionally, a representing attorney needs to consider if all needs have been met for an optimized settlement. Are any of the following services needed in order to get the maximum settlement and ensure that the medical portion of the settlement is protected?

Lien Investigation and Resolution to determine if all medical bills have been addressed and negotiated
Medicare Set-Aside Proposal to consider Medicare’s interests
Medical Cost Projection Report if Medicare’s interest do not need to be considered
Professional Administration experienced in handling both Workers Compensation and Third-Party Liability simultaneously
Trust Advisor Services to protect public benefits

For questions about any of these services or best practices for preparing for a transportation related settlement, please call us at 877.725.2467 or contact Medivest here.

Medivest

29/Mar/2023

On March 8th, 2023, Centers for Medicare & Medicaid Services (CMS), via Deputy Administrator and Director Daniel Tsai, offered its first official notification regarding the Gallardo v. Marstiller U.S. Supreme Court ruling to all state Medicaid agencies. The notification reiterates the requirement of state Medicaid agencies to recover their injury-related payments (liens) from settlement funds. It informs them that now those lien payment recoveries can be recovered from any portion of settlement funds designated as compensation for medicals. This includes funds considered to be compensation for future medicals of a Medicaid member.

A Brief Review of Gallardo v. Marstiller

In 2022, the Supreme Court of the United States (SCOTUS) took on the case of Gallardo v. Marstiller. At question was whether Florida’s Medicaid program was only entitled to be reimbursed for the money it spent for a Medicaid beneficiary’s past medicals from both the portion of the settlement that represents future medical expenses and past medical expenses or only from the portion of the settlement allocated as past medicals. The SCOTUS affirmed 7-2 that the Medicaid Act permits a State to seek reimbursement from settlement payments allocated for future medical care in addition to payments allocated to past medicals.

Medivest followed the case and decision closely in 2022, and documented the details and some new questions that the decision opened up. One of those questions was, would state Medicaid agencies and their recovery agents become more aggressive in pursuing their reimbursement/lien recoveries from any and all medical damages paid in settlements? The letter from the Deputy Administrator and Director, RE: Third-Party Liability in Medicaid: State Compliance with Changes Required in Law and Court Rulings, seems to indicate that the answer is yes.

CMS Letter – SMD # 23-002

In the letter from the Deputy Administrator and Director, the Gallardo ruling is referenced as reason for pursuing past medical payments (i.e. liens) from the future medical portions of a settlement or past medical portions of a settlement. Additionally, the Consolidated Appropriations Act, 2022 (CAA, 2022; P.L. 117-103) is referenced. This requires states to have laws in effect that bar liable third-party payers from refusing payment for an item or service solely on the basis that such item or service did not receive prior authorization under the third-party payer’s rules.

It is worth mentioning, the letter does not expand the law. It is CMS’s attempt to help remind the various state Medicaid agencies of their ongoing obligation to recover their liens and that now, post Gallardo, they may reach into any medicals to recover those liens. The full letter can be read here.

Questions Regarding Lien Resolution?

Medivest will continue to assist injured parties by auditing Medicaid lien payment ledgers to confirm only injury-related payments are reimbursed, and in negotiating the resolution of any Medicaid liens from traditional Medicaid lien holders and privately administered Medicaid Managed Care Organization (MCO) health plans. We are always working to find ways to reasonably reduce the overall reimbursement for the injured parties.

For additional questions regarding lien resolution, please contact us here.

Newer Posts

Older Posts

Changes of Note

For Additional Information

Takeaways

The Big Question

For Additional Information

How Benefits Become Endangered

The Plaintiff Fund

What is the Fixed Percentage Option?

For More Information

On Tuesday, June 6th, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP Unsolicited Response File option. The full notice can be read below:

Section 111 Non-Group Health Plan (NGHP) Unsolicited Response File Webinar Tuesday June 6, 2023

Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation

A Brief Summary

Modified Comparative Negligence Framework

Two Year Negligence Statute of Limitations

Limiting Bad Faith Lawsuits Against Insurers

Attorney-Client Privilege for Treating Physicians

Standards of Admissibility of Medical Evidence

Regarding Attorney Fees

Presumption Against Liability of Property Owners

Questions About Your Liability Case?

Determining the Liable Party

Employment Status May Make Difference

The Right Tools for a Transportation Related Settlement

A Brief Review of Gallardo v. Marstiller

CMS Letter – SMD # 23-002

Questions Regarding Lien Resolution?

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