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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.


 

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.

 


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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.

 


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24/Apr/2023

A Medicare Set-Aside (MSA) is a device intended to fund expenses in the future, but it’s a product of the here and now. MSAs are priced based on today’s costs. But inflation assures that tomorrow’s healthcare costs will outstrip today’s healthcare costs. So, it should be no surprise that MSAs are likely to run out of money earlier than projected. That usually means both Medicare and the beneficiary will be stepping in to pay when the money runs out.

Example 1: Lump Sum Funded MSA

Let’s consider a lump sum funded $87,500 MSA for an individual with a life expectancy of 10 years. That’s an average of $8,750 a year in funding to match expenses. The U.S. healthcare inflation rate in January 2023 was 3.06%. Assuming treatment matches the allocation and inflation remains constant, healthcare costs will be a little over 3% higher the next year, and each year following. The table below shows the impact that inflationary healthcare costs have on a Medicare Set-Aside arrangement that, by its standard projection methodology, assumes flat costs across a fixed period.

Lump Sum Funded MSA

YearFundingExpensesBalanceOther Payers
1$87,500(8,750)$78,750-
20(9,018)$69,732-
30(9,294)$60,439-
40(9,578)$50,860-
50(9,871)$40,989-
60(10,173)$30,816-
70(10,485)$20,332-
80(10,805)$9,526(1,279)
90(11,136)-(11,136)
100(11,477)-(11,477)
TOTAL:87,500(100,587)(23,892)

As we can see, expenses will exceed the available balance by the eighth year and the MSA fund will permanently exhaust. Another payer, preferably Medicare, will become responsible for their share of the beneficiary’s medical expenses and the beneficiary will begin paying Medicare co-pays.

Example 2: Structure-Funded MSA

Let’s take the same MSA from Example 1 and schedule the funding through a structured settlement annuity. The expected average annual expenses and the healthcare inflation rate will be the same.

Structure-Funded MSA

YearFundingExpensesBalanceOther Payers
1$17,500(8,750)$8,750-
2$7,778(9,018)$7,510-
3$7,778(9,294)$5,994-
4$7,778(9,578)$4,194-
5$7,778(9,871)$2,100-
6$7,778(10,173)-(295)
7$7,778(10,485)-(2,707)
8$7,778(10,805)-(3,028)
9$7,778(11,136)-(3,358)
10$7,778(11,477)-(3,699)
TOTAL:$87,500(100,587)-(13,087)

We observe two differences in Example 2: First, because the MSA fund is not fully funded up front, the toll of inflationary healthcare costs is felt earlier, but the impact is less severe. Instead of permanent exhaustion in year 8, we begin to see temporary exhaustion in year 6. In each year that follows, the structured annual payments are inadequate to cover the ever-higher healthcare costs. But over the life of the MSA, the total deficit is less than if the MSA was lump sum funded.

Perfect is Probably Not Good Enough

These examples demonstrate how aggressive a self-administering beneficiary will have to be to stretch their MSA funds over the course of their life. Even if their medical providers were to stick to the healthcare regimen contemplated by their MSA (uncommon) and the beneficiary only pays for Medicare allowable, injury-related expenses (thankfully, all beneficiaries are formulary experts) at the fee schedules used to price their MSA (beneficiaries know medical coding and billing, right?), healthcare inflation means they will eventually need Medicare coverage for their injury-related healthcare expenses, and that means Medicare co-pays up to 20%. Snarky parentheses aside, a beneficiary might have to dig into their own pockets for thousands of dollars in copays over their lifetime, even if the MSA administration is perfectly compliant.

Professional Administration Can Be a Hedge Against Healthcare Inflation

Many people think that professional administration is mostly a tool to ensure compliance and protect both Medicare’s interests and the beneficiary’s benefits. But a professional administrator can also obtain considerable savings on healthcare expenses over the life of the MSA. This secondary benefit enhances the first for both Medicare and the beneficiary because if the MSA stays solvent, neither the beneficiary nor Medicare will have to pony up for Medicare allowable, injury-related expenses.

As a professional administrator, Medivest applies a number of strategies to contain the rising costs of healthcare faced by beneficiaries. These include, but are not limited to, pharmacy benefit management relationships, supply and equipment vendor relationships, healthcare networks, negotiation, and system tools that look for excessive rates, inaccurate rates, and double billing. Probably one of the most underappreciated aspects of professional administration is the administrator’s ability to negotiate and obtain payment terms through good communication and establishing rapport with healthcare providers.

Professional administration is more affordable today than it has ever been. And in the face of rising healthcare costs, it may be reasonable to argue that most Medicare set-asides can’t afford to do without it. If you would like to begin the process of setting up a MSA for professional administration or have additional questions about how, in most cases, Medivest is able to stretch the lifespan of a MSA please call us at 877.725.2467 or reach out to us here.

 


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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?

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.

 


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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.


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27/Feb/2023

In what has become a familiar sight for Medicare Secondary Payer (MSP) rule watchers, CMS has released a notice to delay a proposed rule. This time it is in regard to Section 111 civil money penalty regulations that were announced three years ago. The final rule has now been pushed back for an additional year.

 

The Proposed Rule

On February 18, 2020, the Proposed Rule regarding MSP and Certain Civil Monetary Penalties (CMPs) 85 Fed. Reg. 8793 was released, and the agency opened a public comment period to allow for feedback until April 20, 2020. CMS was expected to complete and release its final rule within the standard three-year period for release, which in this instance would be sometime on or before February 2023.  The proposed rule can be found here.

 

Section 111 Background

The Section 111 penalty provision, which allows the Centers for Medicare and Medicaid Services (CMS) to impose Civil Monetary Penalties against NGHP RREs as follows:

    • Up to $1,000 for each day of noncompliance with respect to each claimant.
    • Up to $1,000 penalty amount will be adjusted annually for inflation under 45 CFR part 102.
    • Current maximum penalty amount as adjusted for inflation is $1,247.
    • As part of its NPRM, CMS outlines proposed situations when it could impose a CMP, along with specific instances when it would not impose a CMP.

     

    Summary

    This final proposed rule specifies how and when CMS must calculate and impose civil money penalties (CMPs) when group health plan (GHP) and non-group health plan (NGHP) responsible reporting entities (RREs) fail to meet their MSP reporting obligations in any one or more of the following ways: When RREs fail to register and report as required by MSP reporting requirements; when RREs report as required, but report in a manner that exceeds error tolerances established by the Secretary of the Department of Health and Human Services (the Secretary); when RREs contradict the information the RREs have reported when CMS attempts to recover its payments from these RREs. This proposed rule would also establish CMP amounts and circumstances under which CMPs would and would not be imposed.

     

    Extension Timeline for Publication of Final Rule

    On February 18, 2023 the Federal Register published the Medicare Secondary Payer of Certain Civil Money Penalties, Extension of Timeline of Final Rule.  Along with the filing, CMS admitted it was “not able to meet the initial targeted 3-year timeline for publication due to delays related to the need for additional, time-consuming data analysis resulting from public inquiry.” The agency has extended the timeline for another year and has until February 18, 2024 to release the announcement.  Click here to read the memo.

     

    Stay Informed

    If you would like to stay current on CMS updates, industry changes, and the latest happenings at Medivest, please sign up today for the Medivest blog. All updates will be sent directly to your email the day they are posted. For additional questions regarding any new regarding CMS or MSP Compliance please contact us here.


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06/Feb/2023

When an individual has a Medicare Set-Aside (MSA) account, they have the option to either self-administer the funds or have them professionally administered.  If self-administration is chosen, it can be a difficult and trying task to comply with the CMS’ rules; opening a MSA checking account, learning what type of expenses can be paid and cannot be paid out, coordinating health insurance benefits, keeping accurate records, and when to send reporting to CMS.  This blog will discuss what you need to know if you choose Self-Administration, and if self-administering your MSA is the right choice for you.

What is Self-Administration?

Self-administration is the process of managing the medical portion of your settlement, compromise and release, judgment, award or other payment/arrangement (“Settlement”) arising from an incident on the job and/or due to the negligence of another party. After a settlement, the individual is responsible for paying the medical claims following the process and guidelines set forth by the Centers for Medicare & Medicaid Services until the funds have been permanently depleted.

What is Professional Administration? 

Professional administration is the practice of using a qualified third party to oversee and manage funds for future medical expenses following a liability or Workers’ Compensation settlement. Though not required, Medicare strongly suggests the professional administration of a MSA. However, for those who choose self-administration, the individual is still responsible for using their MSA account to pay for injury-related and Medicare covered expenses in accordance with the Medicare Secondary Payer (MSP) Statute. The MSP provisions protect Medicare Trust Funds by ensuring that Medicare does not pay for items and services that certain health insurance or coverage, such as a MSA account, is primarily responsible for paying.

Two Ways to Fund Your MSA Account

Before the settlement has occurred, the settling parties will discuss the ways a MSA account can be funded. Typically, there are two options:
  1. Lump-Sum – a single lump sum payment to fund your MSA account.
  2. Structured Settlement Annuity Funding – an initial deposit to fund your account and smaller annual deposits in the following years. The initial deposit covers the first two years of annual funding for treatments plus any cost for proposed first surgeries. If the MSA funds are not spent down in a given year, the funds must remain in the account and carry forward into the next year.

Establishing a Self-Administration Bank Account

Below is a list of CMS’ requirements regarding opening up a separate bank account for the MSA funds.
  • Deposit MSA funds into its own account, separate from any other accounts you may have
  • The account must earn interest and the interest must stay in the account
  • The account should be insured by Federal Deposit Insurance Corporation (FDIC)
  • Choose a bank or an account that does not charge fees if you have a low balance
  • Select an account that allows you to write checks

 

Know What Is Covered

It is important to recognize that not every medical bill or service can be paid out of the MSA account. For individuals self-administering their account, it is highly important to be aware of qualified expenses. Below is a partial list of the expenses that can and cannot be paid out of the account:

Expenses That Can Be Paid

  • Funds can only be used to pay for future care that is Medicare covered and related to your injury.
  • Cost of copying documents
  • Mailing fees/postage
  • Any banking fees related to the account
  • Paying income tax on the interest income earned in the account*
*Note – The MSA funds are not considered taxable income, but the interest earned is taxable. Each year your bank will issue an IRS 1099-INT form for the interest earned in the account.

Expenses That Cannot Be Paid

  • Fees for trustees, custodians, or other professionals hired to help administer the account
  • Expenses for administration of the MSA other than those listed above
  • Attorney costs for establishing the MSA
  • Cannot use to purchase a Medicare supplemental insurance policy or a Medigap policy
  • Medicare premiums, co-payments, and deductibles
  • Acupuncture
  • Routine dental care
  • Eyeglasses
  • Hearing aides
For a more extensive list of what Medicare will pay, click here to obtain a copy of the free handbook “Medicare & You”.

Keep Accurate Records of All Transactions

Bank statements, receipts, and tax records should all be kept and recorded.  Self-administering parties will not need to submit these records annually, but Medicare may request them as proof that the account is being used correctly. It is also recommended that settlement documents showing the date the case was settled, diagnosed injury, and date of injury are also kept. Consider keeping accurate records for each transaction such as:
  • Transaction date
  • Check number
  • “Payable to” or provider’s name
  • Date of service
  • Description – procedure, service or item received, deposit, interest, other allowable expenses
  • Amount paid
  • Deposit amount
  • Account balance
  • Interest earned

What is Coordination of Benefits for a MSA?

The MSP program is in place to ensure that Medicare is aware of situations where it should not be the primary payer of claims.  Sometimes a Medicare beneficiary with a MSA account, public benefits, and other health insurance; the Coordination of Benefits (COB) rule decides which entity should pay first on a claim. In certain situations, if Medicare has paid a claim by mistake, CMS will take action to receive the mistaken Medicare payment.

What is the MSA Attestation?

If the MSA proposal was approved, CMS requires the attestation form to be signed, attesting that the injured party has used the account correctly and to report the amounts spent. If Medicare is satisfied that the right amount of money has been spent appropriately, Medicare will pay for future treatments for this work injury. Below is the information found on the attestation form.
  • Total spent for medical services
  • Total spent for prescription drugs
  • Grand total of expenditures
  • Total of interest income the account earned if any
  • Balance of MSA account at the end of the calendar year

Annual Attestation or Expenditure Letters Reporting

CMS’ Benefit Coordination & Records Center (BCRC) is responsible for monitoring and receiving the submitted attestations forms. The attestation informs Medicare that they are now primary payer when your funds have exhausted.  Note, once the account funds are exhausted you must continue to pay your Medicare monthly premiums, co-pays, and deductibles in order for Medicare to pay your claims. CMS has the right to demand and receive a complete accounting of payments made from the account at its discretion. The following only applies if the MSA proposal has been approved by CMS.
  • Annual Attestations must be submitted every year, no later than 30 days after the end of each reporting period (beginning one year from the date of establishment of the MSA account). Annual attestations should continue through final exhaustion of the account.
  • Temporary Exhaustion occurs when the MSA account funds have exhausted before the next annuity has been deposited into the account.
  • Final Depletion or Permanent Exhaustion is where the MSA account has no money left and no future deposits of funds are expected.
  • Death Occurs / Inheritance before the MSA account is permanently exhausted you will need to notify the BCRC of death. This may require the MSA account to stay open for some time to pay outstanding claims.
  • Completely Exhausted within 60 days of the date the MSA account is depleted, send the BCRC a final attestation that the account is ‘Completely Exhausted”.
  • Loses Medicare Entitlement
  • Re-Establishes Medicare Entitlement

How to Submit Your Attestation to CMS’ BCRC

  1. Electronical Attestation is a Medicare web portal that allows submission of either yearly or final attestations electronically. For more information about how to submit an attestation electronically, please see the MSAP User Guide.
  2. Mail-in Submission / Paper Copy

MSA Proposal/Final Settlement
PO Box 138899
Oklahoma City, OK 73113-8899

  1. Call BCRC

855-798-2627 or TTY/TDD
855-787-2627 for the hearing and speech impaired
Opened: Monday – Friday, from 8am – 8pm | Eastern Time

Medivest’s Solutions

If handling a Self-Administrated account becomes too difficult of a task, Medivest can help. We provide the following options that may reduce the burden of keeping track of the details:
1. Switch to Medivest’s Professional Administration Service
For over 25 years, Medivest has been helping clients navigate the complexities of the MSP and protecting their Medicare benefits. Our services guarantee the most comprehensive and cost-effective professional administration program available and provides:
  • Streamlined reporting and compliance
  • Savings on treatment, equipment, and pharmaceuticals
  • Expert support and service
2. Purchase Medivest’s Self-Administration Kit
Medivest offers a Self-Administration Kit that equips individuals who opt to manage their own Worker’ Compensation or Liability settlement with many of the tools and services available to Professionally Administers settlements. The Medivest Self-Administration Kit has been designed to give the individual the flexibility in determining just how “hands-on” they wish to be in managing their medical funds, while providing to the settling parties the piece of mind that comes from knowing due diligence has been considered.   Below are the services that are included Medivest’s Self-Administration Kit Services:
  • Detailed Booklet
  • Unlimited Phone
  • Medical Bill Review
  • Pharmacy and Durable Medical & Equipment (DME) Discounts

 

For additional information regarding Medivest’s Professional Administration Services or Self-Administration Kits or to get started with one of these options today call us at 877.725.2467 or contact us here.

 


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17/Nov/2022

On Tuesday, December 6, 2022, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar entitled, “Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation”. The full notice can be read below:

 


 

CMS will be hosting a Section 111 NGHP webinar. The format will be opening remarks by CMS, a presentation that will include NGHP reporting best practices and reminders followed by a question and answer session. For questions regarding Section 111 reporting, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110- 173SEC111-comments@cms.hhs.gov.

Date:          December 6, 2022
Time:          2:00 PM ET

Webinar Link:  https://cms.zoomgov.com/j/1604816351?pwd=QmlUVUl1MkU4Y3htY1J0M0tUN3hoUT09

Passcode:  001534

Or to connect via phone:

Conference Dial In:          1-833-568-8864
Conference Passcode:    160 481 6351

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


 

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.

 


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15/Nov/2022

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSAReference Guide (“Reference Guide”) Version 3.8 on November 14, 2022. This Reference Guide replaces Version 3.7 which was released on June 6, 2022. There are a few notable changes when comparing the two Reference Guides.
 

CMS’s Version 3.8 Reference Guide, Section 1.1 includes the following changes:

Changes in This Version of the Guide Version 3.8 of this guide includes the following changes: Clarification has been provided regarding re-review requests when errors exist in the submission documentation, as well as re-review limitations (Sections 16.1 and 16.2). Note: These re-review changes are only available for approvals from September 1, 2022 forward.

To download the new WCMSA Reference Guide v3.8 Click Here.

For your convenience, we have included the entirety of Section 16.1 and 16.2, so you will have the most up to date information regarding the process of re-review:

16.1 Re-Review

When CMS does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is no formal appeals process. However, there are several other options available. First, the claimant may provide the WCRC with additional documentation in order to justify the original proposal amount. If the additional information does not convince the WCRC to change the originally submitted WCMSA amount and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement. Medicare will exclude its payments for the medical expenses related to the injury or illness until WC settlement funds expended for services otherwise reimbursable by Medicare use up the entire settlement. Thereafter, when Medicare denies a particular beneficiary’s claim, the beneficiary may appeal that particular claim denial through Medicare’s regular administrative appeals process. Information on applicable appeal rights is provided at the time of each claim denial as part of the explanation of benefits.

 

A request for re-review may be submitted based one of the following:
  1. Mathematical Error: Where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred), or
  1. Missing Documentation: Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
    • Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
    • Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
    • Should no change be made upon response to a re-review request (i.e., no error was identified), additional requests to re-review the same error will not be entertained.
  1. Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual. Note: This submission option is only available for approvals from September 1, 2022 forward.
    • Examples include, but may not be limited to; medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

 

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.
Re-review shall be limited to no more than one request by type.
Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.

 

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 direct at 877.725.2467.

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On October 13, 2022, in a surprise move, CMS withdrew its Notice of Proposed Rulemaking (“NPRM”) pertaining to the protection of Medicare’s future interests in liability and other Non Group Health Plan (“NGHP”) settlements, judgments, awards, payments, or other arrangements (“Settlements”) without any official or unofficial comment.  Many people in the Medicare Secondary Payer Compliance industry felt that this NPRM, most recently announced in 2018 and continued for several years, was finally going to add CMS’s clarifying “take” on how it would suggest settling parties reasonably consider and protect Medicare’s future interests in liability Settlements and that CMS would issue regulations or guidance specific to Liability Medicare Set-Asides (“LMSAs”).

 

The most recent 2018 iteration of the NPRM was designed to address protection of Medicare’s future interests in any NGHP Settlement, including removing what it considered obsolete regulations.  For the past several years, stakeholders in the MSP compliance community have been waiting and speculating how such regulations could be devised to account for all the convoluted factors that exist in liability claims while adding clarity to steps CMS might suggest to be taken to protect Medicare’s interests in liability settlements.

 

Earlier in 2022, there had been a stakeholder meeting as well as a letter from the MARC coalition urging CMS to not move forward with the NPRM.  It seems that the MSP compliance stakeholder community once again rallied and provided enough reason to give CMS pause.  Some have called into question whether the MSP as enacted, gives CMS authority to issue regulations regarding liability futures, and some court decisions discussing liability MSAs and the need for an exhaustion of administrative remedies prior to a court of competent jurisdiction being able to review a LMSA proposal, may have also contributed to CMS’s decision to not move forward with this NPRM at this time.

 

The argument follows if federal courts have determined it is premature to review proposed LMSAs due to the failure of a party to exhaust their administrative remedies with CMS, then how could CMS insert its own administrative review process via guidance or regulation, unless the MSP were amended to provide for that authority.  Examples of court cases discussing these issues, include Silva v. Burwell, 2017 WL 5891753 (D. N.M. 2017); Sipler v. Trans Am Trucking, Inc., 881 F.Supp. 2d 635 (D. N.J. 2012); Bruton v. Carnival Corporation, 2012 WL 1627729 (S.D. Fla. 2012); Abate v. Wal-Mart Stores East, L.P., 2020 WL 7027481 (W.D. Pa. November 30, 2020); and Stillwell v. State Farm, et. al., 2021 WL 4427081 (M.D. Fla., September 27, 2021).

 

TAKE AWAYS:

  • The MSP still forbids Medicare from making payment when a primary plan is in place meaning if there is a Settlement from a NGHP plan including from a liability carrier or self-insured defendant, Medicare has a statutory lien right under the MSP to recover its conditional payments minus procurement costs and can charge high interest and potentially even double damages for non-compliance.
  • If a current Medicare beneficiary settles a liability case, they should be informed about the MSP and a plan for future care should be set in place.  The federal law is clear that conditional payments could arise prior to or after a settlement, so a risk tolerance cost benefit analysis should be performed between attorney and plaintiff as to the best steps to ensure Medicare is not prematurely billed.
  • Medicare has the right under the MSP to deny payment for injury related future Medicare covered medicals (items, services, and expenses, including Prescription Drug Expenses).  Will it?  We have seen times when it has flagged liability cases even while a liability claim or portion of a liability claim is pending (often because it believes the matter was settled but it was only settled with one of several defendants/carriers).  While CMS does not seem to regularly do this, the goal for an attorney representing an injured plaintiff is to provide a settling plaintiff with enough information to make an informed decision regarding what is the best course of action for them and to document what decision was made after such informed consent was provided.
  • Only two federal circuits (3rd and 11th) have held Medicare Part C – Medicare Advantage Plans (MAPs) to have identical recovery rights as traditional Medicare under the MSP.  However, those MAPs still have contractual subrogation rights, and attorneys representing Defendants, as well as attorneys representing their plaintiff clients, should evaluate whether any MAP plan or Medicare Part D – Prescription Drug Plan (PDP) have a subrogation/lien interest to be reimbursed for pre-settlement payments that were compensated by the Settlement.
  • Each attorney should provide their clients with enough information to help them assess their risks and to determine if denial of injury related future medicals or the potential for recovery of future conditional payments by Medicare is a risk they are willing to take.  There are a wide range of products being offered to address MSP exposure and to protect Medicare’s interests in liability settlements based on the varying risk tolerance levels of your client.  Count on Medivest to help you spot these intricacies so you can deliver prudent advice to your clients.

 

As background, the Medicare Secondary Payer Statute, found at 42 U.S.C. Section 1395y(b)(2), or most commonly known as the MSP, is the federal law enacted in 1980 that amended the Social Security Act and its Medicare specific amendments to make health plans other than Workers’ Compensation to be primary to Medicare.  Workers’ Compensation plans were primary to Medicare from Medicare’s enactment into law in 1965.  The MSP was Congress’ mandate to Medicare and The Centers for Medicare & Medicaid Services (“CMS”), the subagency that administers Medicare, forbidding Medicare from making payments when a primary plan was in place to promptly make payment.  The primary plans are liability including self-insureds (and automobility BI), No Fault, and Worker’s Compensation and are known as the Non Group Health Plans (NGHP) to be distinguished from Group Health plans that offer health care insurance.  While No Fault claims and Workers’ Compensation claims are typically paid immediately upon a claim being filed and accepted for Ongoing Responsibility for Medicals (“ORM”), liability carriers rarely accept responsibility to make payments early on in the life of a liability case.  Liability carriers may choose to offer a settlement but almost never accepts liability.

 

Because the regulations under the MSP define prompt payment as within 120 days, the MSP also allows Medicare to make payments for medical services when a Medicare beneficiary will be compensated by a defendant in a liability case or their/its primary plan carrier under the condition that Medicare be able to recover those conditional payments it made that were claim related and compensated by a settlement, judgment, award, or other arrangement (collectively, “Settlement”).  The MSP makes the primary plan Defendant, and any person or entity who receives a part of the Settlement proceeds, jointly and severally liable for repayment of conditional payments.  The law also allows for interest and potentially double damages against liable people and entities that fail to make payment promptly.

 

The payment by any NGHP plan is what triggers the MSP’s recovery rights under the law regardless of whether liability is accepted or not.  The protection of exposure to the MSP’s recovery rights is also commonly referred to as protecting Medicare’s past and future interests in a Settlement.  Protecting Medicare’s past interests in a settlement includes providing notification of a claim and checking with CMS to determine whether it is claiming any payments it has made from the date of an injury up to the date of settlement are conditional payments to be reimbursed.  Plaintiff attorneys typically provide this type of notification or hire third parties to confirm whether there are any conditional payments and then report settlement details to obtain a discount from the conditional payment amount and obtain a demand from CMS reflecting a deduction for pro-rated fees and expenses allowed under the regulations to the MSP.

 

The regulations to the MSP include some regulations that are generally applicable to any of the NGHP plans and some that are specific to Workers’ Compensation claims and Settlements.  CMS has never promulgated regulations that are specific to liability claims or No Fault claims and Settlements.  CMS has also issued guidance regarding the protection of Medicare’s future interests in Workers’ Compensation claims and Settlements via its Workers’ Compensation Medicare Set-Aside Arrangement (“WCMSA”) Reference Guide, now in version 3.7 issued June 6, 2022.

 

In 2012, CMS issued a Notice of Proposed Rulemaking regarding the protection of Medicare’s future interests in settlements intended to extend from the already regulated area of Workers’ Compensation (“WC”) Settlements to the other NGHP areas and even solicited comments from the MSP stakeholder community.  After many entities pointed out the extreme differences between liability claims and WC claims such as issues of comparative or contributory negligence, the fact that liability claims often contain awards for Pain and Suffering, Loss of Enjoyment of Life, Loss of Consortium for married plaintiffs, etc., CMS ultimately withdrew that NPRM in 2014.

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