Medicare Open Enrollment and its Potential Impact on Conditional Lien Recovery

The Medicare Open Enrollment Period or Annual Election Period runs each year from October 15 to December 7. During this period, Medicare enrollees can make changes to their current Medicare plan to best suit their needs for the upcoming year.  Medicare beneficiaries can: elect to enroll in a new Medicare Advantage Plan (MAP); switch to or from a MAP and original Medicare; change or enroll in Part D prescription drug coverage; or opt out of Part D coverage altogether.

Changes made during this open enrollment period can have a significant impact on primary payers and their conditional lien recovery efforts.  Because a beneficiaries’ Medicare plan coverage can change from year to year, primary payers may have multiple lienholders asserting recovery rights on one claim. Failure to identify these lienholders can lead to potential exposure down the road.

It is important to have a formal policy and procedure in place for MAP lien recovery in addition to traditional Medicare Part A and B lien resolution. Decide when and how MAP liens will be addressed in the claims process and who will be responsible for obtaining lien information. Once this step has been taken, it is important to create clear policies and procedures that reflect these internal decisions.

Because MAP lien enrollment can change from year to year, identifying potential lienholders can be a challenge. Unlike traditional Medicare, there is no central lien recovery portal to identify MAPs and lien amounts.  As such, it is important to consider other ways to obtain this information.  Utilizing the discovery process through well-crafted interrogatories to address MAP enrollments and production of documents requests to obtain copies of Medicare card(s) is one way. If the case is not in litigation, claims questionnaires can be crafted to request this information and documentation.  A review of medical bills can also identify various lienholders.

Further, drafting appropriate settlement language identifying all lienholders and how liens will be satisfied is also an important part of managing potential lien recovery risks. Although Medicare is not bound by the parties’ settlement language, the settlement does bind the parties.  Clear language in the settlement over this issue also can avoid confusion between the parties as to who is negotiating or reimbursing the payments.

In sum, Medicare Open Enrollment time is a good time to review internal policies on lien resolution. It is also a reminder to update claims files with any changes to Medicare/MAP enrollment that may be taking place as of January 1.

For further questions regarding the above or for help in your lien recovery needs, please contact the NuQuest Legal Team.

Medicare Secondary Payer Best Practices PRIMA Podcast with Patrick Czuprynski

Hear the Full PRIMA Podcast Here

The Medicare Secondary Payer (MSP) Act has expanded the scope of workers’ compensation and liability claims beyond each individual state’s law concerning Medicare compliance. It also extends responsibility to plaintiffs’ attorneys, claimants of state, as well as self-insureds. As a result, it is vital to realize who is making payments for medical benefits on both accepted cases and disputed cases.

There are a variety of ways that your organization can consider the MSP act and still be in compliance with its new regulations. It is advised to begin with conducting a comprehensive review of each claim prior to choosing a course    of action.

When determining Medicare’s future interest in a settlement, an entity will generally not provide a future medical allocation while documenting that no future medical allocation was provided.

Options for considering Medicare’s future interest in a settlement include:

  • Commutation approach – takes into consideration what to reasonably expect to compensate for future medical expenses after the date of the settlement as a result of a work-related injury or disease.
  • Compromise approach – takes disputes on the case into consideration and is generally computed by an MSA (Medical Savings Account) that funds an accepted portion of the claim or an MSA that is based on a percentage of the settlement.
  • Seeking CMS (Centers for Medicare and Medicaid Services) approval – A voluntary process in which parties involved in the case are not required to undertake. This process typically leads to an overfunded MSA or an MSA that funds all possible treatments rather than probable or expected treatments.

Entities can address Medicare’s reimbursement requests on payments made by asking for documentation confirming that the request is related to the case and to ensure that reimbursement is indeed owed. At times, Medicare may ask for something that is not related to the claim itself. If it is a possibility that Medicare wrongfully collected on the case, the entity should investigate/appeal the request and search for methods to reduce the amount they are asking for or they have already taken from the case.

When reviewing these cases, it is imperative to maintain the mindset that the burden of proof should lie with Medicare.

 

Despite more function on the Medicare Secondary Payer Recovery Portal (MSPRP), Commercial Repayment Center (CRC) continues to have issues

Recently, Medicare provided a webinar that touted increased functionality of the MSPRP.  These additional functions may allow a party to request an “electronic” conditional payment letter (estimate), prior to an initial determination, but also will provide a view that shows the statuses of correspondences received and sent by Medicare associated with the case number.  This feature also lets a party see if their correspondence has been received and is “open” (pending review) or “closed.”  Medicare has provided a link to its presentation that can be found by clicking here.

What Medicare did not discuss in their presentation are the issues they are currently facing in properly training its employees to handle the multifaceted issues and correspondences surrounding conditional payment negotiation and resolution.

Failure to properly process appeal documents: Medicare is receiving an appeal of conditional payments, but there are employees for Medicare that are improperly closing the appeal without providing a decision.  This means that, at times, Medicare will continue its collection processes as if the appeal was never received.

Another scenario involves when payment has been received by Medicare.  If payment is made, but an appeal is filed, the appealing party is entitled to a reimbursement from the government in the event Medicare rules in favor of the appeal.  The payment at the time of, before or after appeal, does not mean the appealing party has waived its appeal rights. Nevertheless, some employees at Medicare are improperly closing appeals when payment is received.

Failure to issue proper responses to appeals: Recently, Medicare has also started to issue “case resolved” letters.  These letters are being issued by CRC wrongfully in response to an appeal of initial determination. Federal regulation 42 C.F.R. 405.956 requires Medicare to provide a “Notice of Redetermination” when it makes a decision on an appeal of initial determination. The notice of redetermination is required among other things to have specific information regarding appeal rights, explanation of the decision, etc.  These items are not included in the case resolved letter and violate federal regulations with respect to redeterminations.

What this means for stakeholders:

  • a greater need to understand what Medicare is or is not authorized to do under the Medicare Secondary Payer Act and regulations;
  • more follow up with Medicare;
  • continued attention to Medicare’s actions with negotiating and resolving conditional payments with Medicare; and
  • demonstrates the importance of the carrier or self-insured enlisting a “recovery agent”

A possible solution to address the foregoing issues may be for Primary Payers to appoint a Recover Agent. Recovery agents (formerly identified as a third party administrator in section 111 reporting) are sent a carbon copy of all correspondences sent by BCRC or CRC that is directly sent to the carrier or self-insured. With the appropriate agent, the agent can support the carrier or self-insured in digesting and responding to the proper and improper correspondences from Medicare.

At this time, should you receive a case resolved letter, but have appealed the conditional payments, the letter may be indicative that Medicare failed to process the appeal properly and follow up may be required. NuQuest is working with Medicare to resolve this issue as quickly as possible.

More updates will be posted as they are available on these issues.

Updates to Medicare Secondary Payer Recovery Portal

The Medicare Secondary Payer Recovery Portal (MSPRP) is a tool developed by CMS several years ago to allow for online access to their recovery processes.   On Thursday August 16th, CMS hosted a Medicare Secondary Payer Recovery Portal (MSPRP) Overview Webinar to discuss some recent enhancements to the system.

To reduce the number of calls that they receive regarding the status of their cases, one of the improvements made is the new “Letter Activity” tab.  This tab allows insurers and their authorized representatives the ability to view the status of their incoming and outgoing correspondence on cases.

Another new feature allows both the insurers and beneficiaries (and their representatives) the ability to now request electronic letters including Electronic Conditional Payment Letters (e-CPL).

NuQuest looks forward to utilizing these enhancements to assist our clients in what we are hopeful will be a more efficient conditional payment recovery process and will continue to monitor the efficiency and accuracy of these recent changes.

CMS Hosts Webinar on Medicare Secondary Payer Recovery Portal

On 8/16/2018 at 1:00 PM EDT, the Centers for Medicare and Medicaid Services (CMS) will be presenting an “Overview Webinar” on its Medicare Secondary Payer Recovery Portal (MSPRP). The MSPRP is a useful tool in assisting parties regarding the Benefits Coordination and Recovery Center (BCRC) and Commercial Repayment Center (CRC)’s collection of conditional payments. Click here to be directed to the notice.

Once BCRC has been notified of the settlement, judgment or award (TPOC), BCRC will generally issue Medicare’s final lien with respect to the claim’s settlement.

This process above should not be confused with the Commercial Repayment Center’s (CRC) separate collection for Ongoing Responsibility of Medical (ORM) reporting. CRC’s notice and initial determination process is not a final lien from Medicare. If ORM has been reported or terminated, CRC may issue a separate collection against the carrier or self-insured based upon the ORM reporting. In certain circumstances both companies CRC and BCRC may initiate collection over the life of the claim.

It is important to remember that, at this time, the MSPRP only provides information with respect to payments made under Medicare Part A and Part B.  There is yet to be a mechanism requiring CMS to advise its Part C and Part D partners that it has been notified of a TPOC or ORM reporting, legislators are trying to impact this issue through the Provide Accurate Information Directly Act, “PAID Act”, H.R. 5881.

A follow up will be posted after the 8/16/18 presentation.