Under the title “ Miscellaneous Medicare Secondary Payer Clarifications and Updates,” the Office of Management and Budget issued proposed rulemaking to address Medicare Secondary Payer obligations in the context of automobile and liability insurance, no-fault insurance and workers’ compensation recovery. The abstract of the proposed rule states as follows:
“This proposed rule would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. Currently, Medicare does not provide its beneficiaries with guidance to help them make choices regarding their future medical care expenses when they receive automobile and liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or payments, and need to satisfy their Medicare Secondary Payer (MSP) obligations.”
Although there is no legal deadline listed as part of the posting, the timetable for the Notice of Proposed Rule Making is September 2019. NuQuest will continue to monitor the proposed rulemaking process and will provide updates as they become available. Should you have any questions regarding the above or need any Medicare compliance assistance, please contact the NuQuest Legal Team.
For more information, go to: https://bit.ly/2QCe6d
Pursuant to Section 16.0 of the Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide, Version 2.8, October 1, 2018, COBR-Q4-2018-v2.8, CMS will conduct a Re-Review of a prior WCMSA determination in certain circumstances. Specifically, CMS will complete this process in cases involving a mistake in the allocation; mathematical error; or when there is missing documentation that pre-dated the WCMSA submission date that could change its value. CMS will also perform an Amended Review when there are changes to the WCMSA that post-date CMS approval and the case meets certain criteria. Knowing when and how to use the appropriate Re-Review process is imperative in helping to prevent inaccurate or over-inflated WCMSAs.
One recent example of NuQuest successfully utilizing the appropriate Re-Review option involved an appellate court order that was issued after the date of the WCMSA submission. The case involved whether claimant required ongoing treatment for a work-related lumbar spine injury. The appellate court determined that the description of injury was an aggravation of a lumbar sprain and claimant’s intervening injuries as well as a gap in treatment evidenced that claimant’s work injury had resolved. Highlighting the timeline of the appellate process; the court’s rationale; medical evidence; and the nature of injury, NuQuest was able to successfully advocate for a zero dollar WCMSA. This resulted in over an $18,000 savings to the client.
Critical review of a WCMSA to determine if a Re-Review is warranted is a necessary part of the Medicare compliance process. However, identifying these issues is only one part of the equation. Knowing the appropriate arguments to include in a Re-Review as well as the appropriate mechanism to make this request is equally important to obtain a successful result.
For further information regarding WCMSAs or any Medicare compliance needs, please contact the NuQuest Legal Team.
On 11/15/2018, Medicare issued its annual recovery threshold calculation. This threshold determines the amount of settlement, judgement or award that must be reported to Medicare under the Section 111 reporting rules. For 2019, any settlement, judgement, award at or above $750.00 should be reported to Medicare through Section 111 reporting. Medicare’s announcement can be found here.
Also, Medicare will be increasing the MSPRP’s functionality by allowing a party to self-report a workers’ compensation, liability or no-fault claims through the web portal. This option is projected to be available on 1/7/2019. Medicare is providing a webinar over this function 12/18/2018 at 1:00pm ET. Medicare’s announcement and registration information can be found here.
We will keep you posted as more updates are available.
Pursuant to Section 220.127.116.11 of the WCMSA Reference Guide, version 2.8, prescription medication pricing is based upon the Average Wholesale Price (AWP) of the drug with generic drugs being priced at the lowest non-repacked AWP rate. In accordance with WCMSA pricing guidelines, NuQuest submitted a WCMSA utilizing the lowest AWP price for a prescribed generic medication. CMS thereafter issued an approval letter increasing the price of the medication by approximately $17,000. After a critical review of the CMS determination by the NuQuest medical team, it was found that CMS did not follow the protocol outlined in Section 18.104.22.168 of the Guide and, instead, priced the generic medication at a much higher rate. NuQuest thereafter filed a Re-Review outlining the mistake in pricing. CMS agreed with the Re-Review and issued a new approval letter including our original pricing for the medication.
This case not only illustrates the importance of understanding WCMSA guidelines, but also the need to critically review CMS determinations to make sure these guidelines are followed. Failure to do so can result in increased WCMSA costs and missed opportunities for WCMSA reductions. NuQuest will continue to advocate for clients throughout the WCMSA process to help ensure CMS protocols are followed. Should you have any questions or need further information on our MSA services, please contact NuQuest at (866) 858-7161.
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.