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.

THE WHITTLING AWAY OF CMS OFF-LABEL USAGE ARGUMENTS IN THE WCMSA

With the transition to the new Workers’ Compensation Review Contractor (WCRC), the industry is seeing many changes in the Workers’ Compensation Medicare Set-Aside (WCMSA) review process. One of the biggest changes has been the shift from excluding Lyrica from the WCMSA when it is being prescribed for an off-label use to the inclusion of this medication regardless of usage guidelines.

Pursuant to the Food and Drug Administration, Lyrica is clinically indicated for diabetic peripheral neuropathy, post-herpetic neuralgia, partial onset of seizures, fibromyalgia and neuropathic pain associated with spinal cord injuries. However, Lyrica is highly prescribed in the Workers’ Compensation arena to treat pain complaints associated with industrial injuries.

Effective June 1, 2009, CMS began including Part D covered drugs in WCMSAs even if they were being prescribed for an off-label use.   As a result, many claims were not able to resolve due to the exorbitant price of medications.  However, on May 14, 2010, CMS issued a memorandum stating in pertinent part as follows:

“[C}overed Part D drug” is “a drug that may be dispensed only upon a prescription and that is described in subparagraph (A)(i), (A)(ii), or (A)(iii) . . .” of 42 U.S.C. section 1396r-8(k)(2). 42 U.S.C. Section 1395w-102(e)(1)(A). For a Part D drug to be covered by Medicare, and thus included properly in a WCMSA, the drug should be prescribed for an outpatient use that is approved under the Federal Food, Drug, and Cosmetic Act [21 U.S.C.A. § 301 et seq.], or supported by one or more citations included or approved for inclusion in any of the compendia described in subsection (g)(1)(B)(I) of 42 U.S.C. Section 1396r-8.”

This off-label exclusion became effective on June 1, 2010, allowing drugs such as Lyrica to be removed from the WCMSA when they were not prescribed for clinical usage as outlined by the Food and Drug Administration and medical drug compendia.  For over 7 years, the Medicare compliance industry, insurers, employers, claimants and counsel have relied on the exclusion of off-label drugs when settling claims and submitting WCMSAs to CMS for review.

However, without notice or warning, CMS has now started including Lyrica in some WCMSAs raising the cost of these allocations by hundreds of thousands of dollars.  As support for this inclusion, CMS has relied on Section 9.4.6.2 of the WCMSA Reference Guide which states in pertinent part as follows:

FDA approved drugs used for indications other than what is indicated on the official label may be covered under Medicare if the carrier determines the use to be medically accepted, taking into consideration the major drug compendia, authoritative medical literature and/or accepted standards of medical practice.

CMS is now including Lyrica in the WCMSA when it has been paid for as part of the claim.  This is contrary to its post-2010 submission review policy.  Since 2010, CMS has not considered payment of Lyrica as a basis for inclusion of the medication in the WCMSA.  Even when payment screens evidenced multiple years of payments, CMS would allow the parties to exclude this medication if it was being prescribed for an off-label use.  CMS is now not only scrutinizing prior payments of Lyrica, but is also whittling away at off-label usage arguments for other prescription medications as well.

As a result of this shift, primary payers are once again being faced with the unknown when it comes to CMS submissions and medication costs.  Because CMS allocates medications for the beneficiary’s entire life expectancy without taking into account usage guidelines, inclusion of these medications could once again preclude settlement.

Understanding CMS trends, reducing drug exposure prior to submission of a WCMSA, or utilizing an evidence based non-submission process are some ways to mitigate prescription drug costs.

For questions regarding this article or for further information on NuQuest services, please contact Bridget Smith, JD at  bsmith@mynuquest.com

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 pczuprynski@mynuquest.com

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.

 

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.