Best Practices for Complying with New Medicare Reporting Requirements What Every Attorney Needs to Know By Ervin A. Gonzalez, Esq.

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1 Best Practices for Complying with New Medicare Reporting Requirements What Every Attorney Needs to Know By Ervin A. Gonzalez, Esq. I. Overview: How does the MMSEA impact personal injury and mass tort settlements? These new rules apply to defendants and insurance companies. Just as the 2003 changes to the Medicare Secondary Payer Act focused on plaintiffs and their attorneys, these rules focus on the other side of the settlement table. In single event cases, the obligation on the one side will be to verify and resolve, while the obligation on the other side (insurers) will be to register and report. If both parties commit to integrating these processes, settlements should not be affected; provided the right procedures are in place to verify Medicare beneficiaries. For mass tort settlements, CMS recognizes and is looking into specialized reporting procedures but none have been provided as of the date of this posting. On February 25, 2010 CMS posted new information on its Web site informing liability insurers, workers compensation insurers and self-insured entities (defined as NGHPs ) that reporting of live claim input files is moved from the original deadline of April 1, 2010 to January 1, The immediate impact of this change is that entities subject to the reporting requirements now have additional time to register and test their processes for reporting claims to CMS. Additionally, CMS indicates that in February they will publish the next version of the NGHP Section 111 User Guide and alerts related to particular policy issues. By way of background, Section 111 of the MMSEA amended the Medicare Secondary Payer Statute to impose mandatory data reporting requirements on liability insurers, no-fault insurers and workers compensation insurers. MMSEA Section 111 now places an affirmative obligation on insurers to: (a) determine if a claimant is entitled to Medicare; and (b) notify CMS of said entitlement and report specific information regarding the claim directly to CMS. MMSEA builds off of a separate federal statute called the Medicare Secondary Payer (MSP) Statute. Under the MSP Statute, Medicare is designated as the secondary payer for Medicare beneficiaries who also have group health plan (GHP) coverage, as well as for Medicare beneficiaries who receive settlements, judgments, awards or other payment from liability insurance (including self-insurance), no-fault insurance, or workers compensation (non-group health plans or NGHPs). The purpose of the Section 111 mandatory reporting requirement is to notify CMS of instances when Medicare beneficiaries receive payments that relieve CMS of its obligation to cover medical costs. Notwithstanding the recent delay in the reporting schedule, we have begun to see the first stages of action by some responsible reporting entities (RREs), which is the term used under Section 111 to identify those GHP and NGHPs that will be making reports. These entities are 1

2 beginning to gather the information necessary to generate the necessary reports. Specifically, a NGHP RRE is now required to report to CMS: 1. any claim that is addressed or resolved, fully or partially, through a settlement, judgment, award or other payment; 2. on or after October 1, 2010; 3. with a Medicare beneficiary (broadly defined to include all persons age 65 years of age or older or certain people under 65 years of age with qualifying disabilities); 4. where medicals are claimed or paid; 5. regardless of whether there is a determination or admission of liability. The registration period for NGHPs on the Coordination of Benefits Secure Web site (COBSW) began on May 1, 2009 and by now most RRE s are registered and ready to begin the Claim File Testing process. Significantly, in light of CMS recent delay in the reporting schedule, the targeted claims subject to reporting are claims made on or after October 1, CMS has indicated that RREs may choose, from a process perspective, to report claims prior to October 1, However, pursuant to the new information, the only claims subject to reporting are those occurring after October 1, Additionally, some lingering questions remain in the insurance industry about whether the Section 111 rules have now added a requirement that Medicare Set Aside (MSA) arrangements be implemented in liability settlements involving a Medicare beneficiary. From the start of the Section 111 rule-making process, CMS has made it clear that MMSEA Section 111 does not change or alter any legal obligation/requirements under the Medicare Secondary payer statute. Therefore, insurers are still responsible for protecting Medicare s interest and Medicare still needs to be considered for both past (conditional payments/liens) and future payments. Satisfying Medicare s interest for future injury-related care in liability settlements has a host of issues that do not exist in the workers compensation context, were MSAs are regularly employed. As a general principle, the standard relative to evaluating whether an MSA should be considered in a liability settlement is based on the concept of whether the parties have properly considered Medicare s interest in negotiating the liability settlement. Some factors to consider in this regard include: (1) whether the parties have addressed Medicare s past conditional payments (e.g. issuing third-party checks listing Medicare as payee) and (2) whether future injury related care is expected (if not, is there physician written certification of this fact). All this being said, in some cases, the sheer size of some liability settlements, for instance in catastrophic injury cases, may suggest that there will necessarily be some future costs of care that Medicare will likely be paying for. These instances should be evaluated on a caseby-case basis to determine whether a MSA Arrangement may be appropriate. II. The Medicare Medicaid and SCHIP Extension Act (MMSEA)- A. What is it and why is it important to most personal injury matters? 2

3 Answer: Resolving Medicare s right to reimbursement of payments for medical treatment related to an injury upon which a negligence, workers comp, malpractice, no fault or other civil law claim has been made is the obligation of every party to the injury claim. The Medicare Secondary Payer (MSP) statute -42 USC 1395y(b)(2)-, regulations under that statute -42 CFR et seq.- and the Medicare, Medicaid and SCHIP Extension Act of USC 1395y(8)- create obligations on the part of the Medicare beneficiary, the beneficiary s attorney, the party against whom a civil claim is made by a Medicare beneficiary and the insurers of both the beneficiary and the claim respondent. Those obligations include reporting the claim to the Centers for Medicare and Medicaid Services (CMS), reimbursing past payments made by Medicare related to the claim and protecting Medicare s interests related to future payments related to the claim. B. What is so important about October 1, 2010 and January 2, 2011? October 1, 2010 is the trigger date for the new reporting guidelines. An entity is responsible for reporting the claim, under the new guidelines, as follows: Specifically, a NGHP RRE is now required to report to CMS: 1. any claim that is addressed or resolved, fully or partially, through a settlement, judgment, award or other payment; 2. on or after October 1, 2010; 3. with a Medicare beneficiary (broadly defined to include all persons age 65 years of age or older or certain people under 65 years of age with qualifying disabilities); 4. where medicals are claimed or paid; 5. regardless of whether there is a determination or admission of liability. On January 2, 2011, these new Medicare reporting obligations apply to all insurance companies, self-insured businesses and other businesses that make payments to Medicare beneficiaries as a result of legal claims. Medicare has termed these defendant organizations Responsible Reporting Entities (RRE). The RRE is the party responsible for actually reporting the payments to the Centers for Medicare and Medicaid Services (CMS). The process begins with a query to CMS to determine whether the plaintiff is a Medicare beneficiary. The RRE is required to provide to CMS either the plaintiff's Medicare Health Insurance Claim Number or the plaintiff's Social Security Number. C. What you need to know now. Both attorneys and Medicare beneficiaries are subject to interest fees and penalties if Medicare is not reimbursed. Attorneys may be exposed to increased legal malpractice insurance rates and ethical rules violations for failing to notify Medicare of payments, even if the plaintiff s attorney was not aware the claimant was a beneficiary. Because of the MMSEA reporting 3

4 requirements, Medicare will discover cases unreported by plaintiffs attorneys. Make sure you are prepared. What do I do when the RRE puts Medicare on the check? 1 Putting Medicare s name on the check will effectively delay payment for up to ten weeks. This is a drastic step that is completely unnecessary. The RRE is likely doing this to absolutely ensure Medicare s past interests are being satisfied. This situation can be avoided if you can show the RRE that you have already begun the process of verifying your client s Medicare entitlement status and are ready to reimburse Medicare upon receipt of the settlement proceeds. Medicare is not interested in being a named party on the settlement check. Starting early and sharing your formal process of Medicare compliance with the RRE often satisfies them enough to stop the RRE from putting Medicare s name on the check. What do I do when the RRE asks for my client s Social Security Number? Though it is counterintuitive for plaintiff s counsel to provide the RRE with this personal information, the Garretson Firm recommends that the parties work together and collaborate when handling MMSEA related issues. This includes providing the claimant s Social Security Number and other information necessary to submit a query to CMS. The RRE is asking for this as a way of determining whether the claimant is entitled to Medicare. Since the RRE has an obligation to report certain settlements to CMS, the RRE needs to determine which cases are reportable and which cases need not be reported. Providing the RRE with the claimant s Social Security Number will assist them in making this determination. Since the settlement itself may be held up if the RRE cannot determine its reporting obligations under MMSEA in a case, we encourage plaintiff s counsel to provide this limited information to help the RRE determine whether the settlement will be reportable. Once the RRE can make that determination, it can focus on getting the case settled. There are at least 49 pieces of mandatory, situational or optional data elements that CMS is requiring that insurers report. In brief, the data relates to the injured party, his/her attorney (including SSN or TIN), the type of insurance paying the claim, the nature of the incident (including the insurer s statement on the cause, nature and extent of injury), and finally details of the resolution. What do I do when the RRE asks for the Social Security Number of a derivative claimant in the case? The RRE is asking for the Social Security Number of that derivative claimant in the case because it is trying to determine the Medicare entitlement status of that derivative claimant. Much like the situation discussed above, the RRE will use the Social Security Number to query CMS to determine whether that person is entitled to Medicare or not. CMS has told the legal community that requesting the Social Security Number for this limited purpose is a necessary and proper use of the Social Security Number. Because the RRE will delay settlement until it is satisfied it has fully complied with all reporting obligations posed by the MMSEA, you should provide the derivative claimant s Social Security Number with the understanding it will be used for that limited purpose. 1 The next series of questions and answers is available from: 4

5 What do I do when the RRE refuses to release the settlement proceeds? The RRE is likely refusing to release the settlement proceeds as it is not yet comfortable with its reporting obligation to CMS being satisfied. The Garretson Firm encourages plaintiff s counsel to share with the RRE its progress in verifying the claimant s Medicare entitlement status as well as identification/resolution of any conditional payments made by Medicare for injury-related care. We suggest even going as far as providing the RRE with a redacted version of the CMS correspondence. This shows the RRE that the claimant is being proactive about handling Medicare obligations. What do I do when the RRE insists on establishing a MSA as a part of settlement of my 3rd Party Liability Case? The RRE is likely insisting on a MSA in your 3rd Party Liability Case because it is misinformed about its obligations under the MMSEA. According to the MMSEA teleconference call on September 30, 2009, Section 111 reporting is not related to MSAs. This call reinforced the fact that MMSEA is intended to address Medicare s past interests (items paid by Medicare for injuryrelated care from date of injury to date of settlement) as opposed to Medicare s future interests (anything Medicare may pay out for future injury-related care going forward). Any MSA obligation in a 3rd Party Liability Case is the same as it was prior to the MMSEA being enacted on December 29, You should help educate the RRE about its obligations under the MMSEA, particularly when to comes to MSAs. Visit the Learning and Resource Center on our website where you will find articles and practice tips you can provide to the RRE to help educate the RRE about its Medicare compliance obligations. As a secondary step, you can obtain a plaintiff oriented MSA evaluation from an independent 3rd party that understands Medicare compliance and how the MMSEA affects settling parties. An MSA evaluation like this documents your file and memorializes the fact that you are considering Medicare s interests at the time of settlement. Such an evaluation could also be provided to the RRE to document its file. D. Best practices for handling claims and compliance strategies, including how to improve government response timelines. Start early. E. The roles and benefits of using a third party administrator (TPA) and understanding the system-set-aside arrangements. 5

6 TOP 10 MEDICARE LIEN MYTHS SOURCE: CHRIS GULLEN, 1. Resolving the Medicare lien is the claimant s problem. Resolving Medicare s right to reimbursement of payments for medical treatment related to an injury upon which a negligence, workers comp, malpractice, no fault or other civil law claim has been made is the obligation of every party to the injury claim. The Medicare Secondary Payer (MSP) statute -42 USC 1395y(b)(2)-, regulations under that statute -42 CFR et seq.- and the Medicare, Medicaid and SCHIP Extension Act of USC 1395y(8)- create obligations on the part of the Medicare beneficiary, the beneficiary s attorney, the party against whom a civil claim is made by a Medicare beneficiary and the insurers of both the beneficiary and the claim respondent. Those obligations include reporting the claim to the Centers for Medicare and Medicaid Services (CMS), reimbursing past payments made by Medicare related to the claim and protecting Medicare s interests related to future payments related to the claim. 2. The personal injury claim respondent and its insurer need not worry about the Medicare lien if there is no finding or admission of liability for the injury that was treated by Medicare. The MSP statute makes clear that the party / insurer claimed to be responsible to cover treatment that in fact has been provided by Medicare becomes primary to Medicare and thus owes reimbursement by making any payment in settlement of the claim, even if liability for the injury/treatment is never established and in fact is denied. 42 USC 1395y(b)(2)(ii). 3. No one needs to worry about a Medicare lien unless Medicare takes some affirmation action to notify parties of the lien and requests reimbursement. Medicare is not required to notify anyone of its right to reimbursement and is not required to make a request for reimbursement in order to enforce its right to recovery. Federal law obligates the parties to the injury claim to notify Medicare of the claim and to take specific action to determine the amount of the reimbursement amount and to make reimbursement within a specified period of time. 6

7 4. Medicare is only entitled to recover reimbursement from that portion of the settlement allocated to medical expenses. Medicare s right to reimbursement is not dependent on whether or to what extent there is any allocation of the settlement to various types of loss. However, Medicare does recognize allocations of settlements to nonmedical losses when payment is based on a court order on the merits of the case and will not seek recovery from portions of court awards designated as payment for nonmedical losses. Medicare Secondary Payer Manual, section Initiating contact with Medicare regarding resolution of its right to reimbursement should not be done until the claim is settled. Resolving a Medicare lien is a multi-step process that can take months to complete and should be started well before settlement is reached. Those steps include reporting the claim to Medicare s Coordination of Benefits Contractor, communicating with the Medicare Secondary Payer Recovery Contractor to determine what Medicare payments were and were not related to the underlying claim and, when required, asking that the Medicare lien amount be compromised or waived in order to allow the claim to settle. In many cases it makes more sense to handle lien waiver and compromise negotiations before settlement is reached. 6. There is no process for review or appeal from a determination on a Medicare lien determination. There is an established, multi-level review and appeal process from the determination of the amount Medicare is entitled to recover. 7. The new mandatory insurer reporting law requires the use of Medicare set-asides in settlement of non-workers compensation cases. The Medicare, Medicaid and SCHIP Extension Act of 2007 imposes new requirements for reporting of negligence, no fault, malpractice, uninsured motorist and other non-workers compensation claims of Medicare beneficiaries. The law does not expand the requirement for the creation of Medicare set-aside accounts beyond the current requirement for use of set-asides in settlement of certain workers compensation cases. Implementation of the new reporting requirements has led to greater awareness of the already existing obligation of the parties to personal injury claims of all kinds to protect Medicare s interests in settlement of those claims. Even in non-workers compensation settlements, Medicare set-asides may be used to demonstrate that the parties took Medicare s interests into 7

8 consideration in the settlement. However, there are other ways to protect Medicare s interests in non-workers compensation settlement short of creating a set-aside account. 8. Where the Medicare lien exceeds the amount of the settlement (or exceeds the amount of the policy limits) the entire settlement amount will be taken by Medicare. Medicare s final reimbursement demand will reflect reductions in consideration of attorney fees and costs incurred in prosecuting the personal injury claim under 42 CFR and Medicare has a process for waiving its reimbursement or compromising the amount of its recovery depending on the individual facts and circumstances of the case. 42 CFR ; 42 CFR Attorneys representing parties to personal injury claims don t have to worry about penalties or sanctions directed at them if their clients don t comply with Medicare reimbursement and reporting requirements. CFR (g) makes an attorney who receives funds from a primary payer liable to reimburse Medicare conditional payments. The federal courts have recognized the attorney s obligations and liability for payment to Medicare when reimbursement requirements are not met. U.S. v. Paul J. Harris, 2009 WL (N.D.W.Va.) In most states rules are in effect governing attorney conduct modeled on ABA Model Rule 1.15(d), requiring attorneys to notify third parties (such as Medicare) when client funds in which the third party may have an interest come into the attorney s hands and to deliver client funds to the third party once the third party s interests are established. Attorneys have an established obligation to Medicare and May 2009 amendments to the federal False Claims Act create the opportunity for expanded sanctions against attorneys for failing to comply with an obligation owed to an agency of the federal government. 10. Medicare reimbursement requests only include payments made by Medicare that were for treatment related to the injury involved in the underlying personal injury claim. 8

9 Although Medicare is only entitled to reimbursement of payment made for treatment of the injury involved in the personal injury claim the reality is that many Medicare requests for reimbursement include payments made by Medicare to treat medical conditions that pre-existed the claim injury or were otherwise unrelated to the claim injury. It is important to audit the reimbursement requests to identify and then challenge the request for reimbursement of payments for unrelated treatment 9

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