Conditional Payments in Review: 2018

In February of 2018, we saw a new contractor operating Medicare’s Commercial Repayment Center (CRC), Performant Financial Corporation.  As expected, there were growing pains or learning curves experienced with the new operator, such as: inappropriate referrals to U.S. Treasury for collection, letters of authorization inappropriately denied, statement of reimbursement forms not matching decision letters and ongoing grouper errors.

Despite these issues, we continue to see Medicare consistently seek reimbursement for payments that do not require reimbursement under the Medicare Secondary Payer Act. This is regardless of whether CRC is collecting based upon Ongoing Responsibility of Medical Reporting or the Benefits Coordinator and Recovery Center (BCRC) collecting based upon settlement reporting.

Specifically, in 2018, NuQuest had an impact rate of 95.2%. This means 95 out of 100 negotiations resulted in savings to our customers.

These savings totaled over $15.2 million dollars.

We will continue to monitor Medicare’s collection process and post updates in the near future.

Medicare’s Failure to Send Initial Determination to Carrier/Self-Insured – Collection by U.S. Treasury and Their Agencies

NuQuest has recently observed an increase in calls and letters from collection agencies that are seeking reimbursement for alleged outstanding conditional payments made by Medicare. In discussing the increase with one of the collection agencies, NuQuest was advised that companies using a vendor to report their Section 111 information may not have been properly sent a copy of Medicare’s initial determination and a copy was only provided to the Section 111 vendor.

This means if a carrier or TPA receives a call or notice from a collection agency for outstanding conditional payments and did not receive the initial determination, the letter may have only been sent to the Section 111 vendor.  In these circumstances, it is recommended the carrier of self-insured contact its Section 111 vendor to determine if they received a collection letter from Medicare regarding the underlying claim and obtain a copy.

Collection calls and letters for a particular claim should stop when either arrangement of payment has been made or the collection agency is on notice of a pending appeal. Do not send payment to a collection agency without first receiving confirmation in writing of the collecting agency’s legitimacy and the legitimacy of the underlying debt. If the carrier or TPA is arranging payment, the carrier or TPA should contact the collection agency directly to do so. Payment is not an waiver of appeal of conditional payments.  If a favorable decision is obtained after payment, Medicare usually issues a refund within 30-60 days.

If there is a pending appeal on file with Medicare over the debt, a copy of the pending appeal letter should be sent to the collection agency. In this circumstance, if NuQuest is handling the conditional payment negotiation and is notified of the collection agency’s involvement, NuQuest will automatically send a copy of pending appeal letter directly to the collection agency.  This should put a stop to any collection calls or letters until a decision is issued.

If there is not an appeal on file, NuQuest may still be able to obtain a favorable outcome through its conditional payment negotiation services.  This is because a direct appeal, a request for extension or request for a revised initial determination may be a viable option. Once NuQuest receives the initial determination or intent to refer correspondence, and an appeal is filed with BCRC/CRC, a copy will be also be faxed to the collection agency.  This should also put a stop to the collection calls.

If the collection calls or letters do not stop and payment has been arranged or the agency is on notice of appeal, the collection efforts could be a violation of debt collection law. NuQuest is a Medicare Secondary Payer Compliance vendor and does not represent customers in fair debt collection practices act litigation. If there is an issue with ongoing collection calls, contacting a supervisor or attorney who practices law in this area is recommended.

If you have any questions or would like to set up a time to discuss conditional payment issues with our Director of Lien Resolution, Patrick Czuprynski, please contact him at

NuQuest’s 98 Percent Success Rate for Conditional Payment Negotiations in 2017

In 2017, NuQuest received 1,933 conditional payment negotiation responses. 1,892 of these responses resulted in a reduction of Medicare’s reimbursement amount.

This means NuQuest limited Medicare’s conditional payment reimbursement amount 98% of the time in 2017.

There are two entities initiating the recovery of conditional payments paid under Medicare Part A and B: Benefits Coordination Recovery Center (BCRC) and Commercial Repayment Center (CRC).

BCRC is generally responsible for obtaining reimbursement for payments after a Total Payment of Obligation to Claimant (TPOC) is reported to Medicare. A TPOC is usually a settlement, judgment or an award. BCRC can collect against any party after settlement, but in most circumstances will seek collection directly from the Medicare beneficiary. CRC, on the other hand, is responsible for collection based upon Ongoing Responsibility of Medical (ORM) reporting. CRC will only collect against a carrier or self-insured with respect to ORM reporting.

There are many circumstances where reimbursement to Medicare for conditional payments is not required under the Medicare Secondary Payer Act. 2017 started with a declaration by the Central District of California’s Federal District Court that Medicare’s practice of collecting conditional payments, simply because one related diagnosis code was mixed with many other unrelated codes, was unreasonable and unenforceable. See California Insurance Guarantee Association v. Sylvia Mathews Burwell, et. al., 2:15CV01113ODW (“CIGA”). This declaration also advised that prima facie evidence can shift the burden to Medicare to justify its reimbursement.

In addition to the CIGA defense above, NuQuest has developed a variety of arguments that shift the burden to Medicare (BCRC or CRC) to justify its reimbursement request.  If Medicare has no justification for reimbursement, Medicare will generally remove the inappropriate charges requested in its recovery.

We currently are experiencing a 100% success rate in 2018 and hope to continue to restrict Medicare’s reimbursement to amounts that are required under the Medicare Secondary Payer Act.  We will keep you updated as we continue to track Medicare’s collection efforts.

Strengthening Medicare and Repaying Taxpayers Act (“SMART Act”) and Medicare’s Limited Right to Reimbursement of Conditional Payments

On January 20, 2013, the SMART Act was passed into law. The law provides direction to the Centers for Medicare and Medicaid Services (“CMS”) in the way it collects payments Medicare has made related to workers’ compensation, liability, auto and no-fault claims.

Conditional payments are payments made by Medicare where an applicable plan (workers’ compensation, liability, self-insurance, auto and no-fault insurance plan) has not made or cannot reasonably be expected to promptly make payment related to a Medicare covered item or service. Medicare has a direct right of recovery against an applicable plan for conditional payments.

This blog post’s focus is on Medicare’s limitations in obtaining reimbursement for conditional payments. The SMART Act covers much more and we encourage the reader to look at Public Law No: 112-242.

In general, disputing conditional payments has resulted in using the following two strategies:

  1. Obtaining medical records for the date of service for which Medicare is alleging a conditional payment. If unrelated to the work injury, we have had success pulling these alleged related payments off of the conditional payment letter;
  2. Using 42 C.F.R. § 411.47, apportionment of lump-sum compromise settlement of workers’ compensation claim. This involves determining a ratio between the amount a workers’ compensation claim settled for versus its overall exposure and using that ratio in determining the Medicare overpayment after certain deductions (i.e. the amount the parties are responsible for conditional payments made by Medicare).

The SMART Act has clarified and provided another bullet in the conditional payment dispute. A three year statute of limitations applies to actions for recovery brought by the Unites States for reimbursement of conditional payments it has made.

Section 205 of the SMART Act states as follows:

  • In General – Section 1862(b)(2)(B)(iii) of the Social Security Act (42 U.S.C. 1395y(b)(2)(B)(iii)) is amended by adding at the end the following new sentence: “An action may not be brought by the United States under this clause with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made pursuant to paragraph (8) relating to such payment owed.”
  • Effective Date – The amendment made by subsection (a) shall apply with respect to actions brought and penalties sought on or after 6 months after the date of enactment of this Act.

Paragraph (8) is the requirement of liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws and plans to identify claimants that are Medicare beneficiaries and submit the identity of the claimant to CMS. Many in the Medicare compliance industry define Paragraph (8) as Section 111 reporting and also the requirement of reporting Total Payment Obligation to Claimant (TPOC) payments.

What is interesting regarding the SMART Act is whether notice of termination of the ongoing reporting medical component (ORM) of Section 111, will qualify as adequate notice to CMS in starting the statute of limitations. The ORM may trigger recovery of Medicare conditional payment1, but whether the courts will qualify the notice that no further payments will be made by the applicable plan (termination of ORM) as sufficient notice for the statute of limitations to run has yet to be determined. Generally, a termination ORM notice will likely be attached to a TPOC payment on the claim and therefore the notice of the TPOC should qualify as adequate notice starting the statute of limitations clock. We are unaware of a district court that has made such a determination, distinction or offered any guidance over the issue of ORM.

Taking this a step further, 42 CFR 411.24 – recovery of conditional payments – states that CMS has a right to initiate recovery as soon as it learns that a payment could be made under an applicable plan. Therefore, if Medicare is on notice by way of an ORM and a conditional payment is made, slipping through Medicare’s Section 111 net, does the statute of limitations period begin at that time?

In United States v. Stricker, 11-14745 (11th Cir. 2013 unpublished), the United States District Court of Appeals found that the statute of limitations began on December 2, 2003, the date the right of action accrued (the date the plaintiff lawyers certified that 97% of the plaintiffs had signed releases). This likely will not be the applicable standard as the 11th circuit ruling used 28 USC § 2415 as its determination of when the statute of limitations began. The SMART Act has supplanted 28 USC § 2415 regarding conditional payments.

However, in looking at 42 USC 1395y(b)(2)(B)(vi):

Notwithstanding any other time limits that may exist for filing a claim under an employer group health plan, the United States may seek to recover conditional payment in accordance with this subparagraph where the request for payment is submitted to the entity required or responsible under this subsection to pay with respect to the item or service (or any portion thereof) under a primary plan within the 3-year period beginning on the date which the item or service was furnished.

What this means is that in the right circumstances Medicare should be barred from filing actions for reimbursement for any dates of service that are older than three years from CMS’ request for payment. For example: applicable plan provides ORM notice on June 1, 2012. The claim settles with a TPOC on April 1, 2016 and applicable plan notifies Medicare the same day of the TPOC. Medicare now sends its first request for payment dated April 15, 2016. Under this circumstance, Medicare should be barred from seeking reimbursement for any date of service that is older than April 15, 2013.

Another aspect of the statute of limitations will be its applicability to Medicare Advantage plans. In Collins v. Wellcare Healthcare Plans, 13-6759 (E.D. La. 12/16/14), the District Court opined that the three year statute of limitations applied to Medicare Advantage plans as the SMART Act statute of limitations applies to all actions brought under the Medicare Secondary Payer act.

As noted in Stricker, the statute of limitations is a mechanism to require prompt presentation of claims and in the conditional payment context, require diligence by CMS. Arguably, Medicare will be on notice that there is an obligation for an applicable plan to make a payment for a Medicare covered service once the ORM box is checked by responsible reporting entities (RRE). The litigation likely will come into play in determining whether the ORM provided adequate information to Medicare of the type of injury or diagnosis related to the ORM notice.

Thus, an applicable plan should have a clear understanding of its responsible reporting entity’s process in reporting ORMs and TPOCs to Medicare as an applicable plan cannot escape a Section 111 violation or reimbursement of conditional payment suit by Medicare2. In the event Medicare files suit for a conditional payment outside their statute of limitations, it will then be the responsibility of the applicable plan or beneficiary to provide their version of when notice was provided to CMS.

The three year statute of limitations became effective with respect to actions brought by CMS on or after 6 months of when the SMART Act was enacted and can be applied to actions filed by CMS after July 10, 2013. We will continue to update our blog as more information regarding these issues is obtained.



242 USC 1395y(b)(2)(B)(iii); 42 USC 1395y(b)(8)