Cases & Points Blog

Bipartisan Budget Act of 2018: Medicaid Reimbursement Limited

On 2/9/2018, President Donald Trump signed into law the Bipartisan Budget Act of 2018. As a part of the 2018 Act, Section 53102 repeals section 202(b) of the Bipartisan Budget Act of 2013. Section 202(b) was the legislative response to the United States Supreme Court Decision in Arkansas Dept. of Health and Human Services, et. al. v. Ahlborn, 547 U.S. 268 (2006).

Practically speaking, the Supreme Court in Ahlborn ruled that where there is a settlement or judgment of a third party liability claim, federal law limited Medicaid’s recovery to the amount designated as payment of medical expenses. The Bipartisan Budget Act of 2013 altered the federal law the Supreme Court relied on in deciding Ahlborn. By altering the law, Congress provided direction to the Supreme Court and the public that Medicaid could recover up to the amount of settlement or judgment associated with a third party liability claims. The effective date of this change initially was 10/1/2014, but ultimately the change in recovery became effective on 10/1/2017.

The Bipartisan Budget Act of 2018 does away with Section 202(b) of the 2013 Act retroactively as of 9/30/2017 (before the 10/1/2017 effective date). This puts the Supreme Court’s interpretation of the federal law in Ahlborn back in play and may limit Medicaid’s recovery to the amount the settlement or judgment has designated as payment of medical expenses.

As more develops over Medicaid’s reimbursement rights, we will keep you posted.

NCCI Release of Medicare Set-Asides and Workers Compensation 2018 Update

NCCI Release of Medicare Set-Asides and Workers Compensation 2018 Update

The National Council on Compensation Insurance (NCCI) released its updated Research Brief on Medicare Set-Asides (MSAs) and Workers Compensation earlier this month.  The initial study had been released in 2014 and considered data on CMS submissions that had occurred between September of 2009 and November of 2013. The recently updated report includes information from 2014 and 2015 submissions.

It comes as no surprise that the updated study concluded that CMS’ processing time had improved from the earlier study.  Based on this data sample, CMS’ average processing time was 60 days for submissions involving MSAs that were under $25,000.00, with a median processing time of approximately 18 days for MSAs that were under $200,000. In addition, approximately 30% of CMS submissions for MSAs under $100,000.00 were required to provide additional claim documentation. (Exhibit 4, page 7)

The study also looked at the differences between the submitted MSA proposals and the approved MSA proposals. Although approximately 90% of the submitted MSA during December 2012 and May 2014 were approved as submitted, this was attributed to a reduced degree of scrutiny given CMS’ need to clear out the claims backlog.  Excluding this period, the study concluded that CMS   requested an average 51% increase when the submitted MSA was under $25,000.00, and an average 6% increase when the submitted MSA was greater than $200,000.00. Prescription drugs accounted for about 50% of the larger MSA amounts.  CMS’ publications of review guidelines were credited with the improved 1:16 ratio of average approved to submitted MSAs in 2015.

 When it came to administering the CMS approved MSA funds, most of the MSAs were self-administered.  Given CMS’ recommendation in its updated Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide ( Version 2.6) that funds be professionally administered, it is reasonable to assume that  MSA accounts were not being administered correctly. Without proper administration of the MSA funds, there is no “safe harbor” that comes from funding an excessive  CMS determination.

CMS processing times for MSA reviews have improved since the initial NCCI study came out in 2014. The study, however, confirms the need to build additional time into the settlement process if CMS’ voluntary review is sought.  Furthermore, the study confirms CMS’ tendency to over -project. The arbitrary nature of CMS’ review process is also evidenced in the 90% approval of MSAs as submitted during CMS’ attempts to clear their backlog.

Since the CMS review process is voluntary, parties to a settlement should consider alternative methods for Medicare Secondary Payer compliance. The NuShield certified MSA projects future injury-related Medicare-covered treatment that is reasonably likely to occur in a claim. It is based on the treating physicians’ recommendations and Evidence-Based Medicine Guidelines.  The hold harmless and indemnification agreement, coupled with the assistance in the administration of the certified MSA funds provide parties with additional assurance that the NuShield certified MSA is appropriately funded.  There is no delay in settlement or overfunding of care with the NuShield certified MSA. Although the NCCI study references the  “safe harbor” that CMS review may provide, why take the unnecessary journey for a false promise?  More information regarding the NuShield certified MSA program is available upon request by contacting Kip Daniels or Barbara Fairchild at or

Commercial Repayment Center (CRC) Transition Webinar Available

In January, the Centers for Medicare and Medicaid Services (CMS) held a webinar discussing the transition of the Commercial Repayment Center’s (CRC) operating contractor from CGI Federal to Performant Financial Corporation for Group Health Plans and Non-Group Health Plans.  The slides for the webinars are now available on CMS’ website.  The Non-Group Health Plan presentation may be found here. The Group Health Plan presentation may be found here.

A summary of the presentation can also be found through our “Cases and Points Blog” or by clicking here.

Join Us on January 31st – NuShield Certified Compromise Webinar

Join Jennifer Shymanski, JD, CMSP, and Rasa Fumagalli JD, MSCC for a webinar on January 31st, 2018 from 1:00 to 1:30 pm CST to learn about the NuShield Certified Compromise MSA. Register here. The Certified Compromise MSA is an allocation that is apportioned from the net settlement. By comparing the various damage elements in a claim, the Certified Compromise MSA avoids a cost shift of injury alleged medical expenses to Medicare while taking into account the disputed nature of the settlement.

Jennifer Shymanksi, JD, CMSP, NuQuest’s Director of Implementation and Strategy, holds a law degree from Northern Illinois University College of Law and a Bachelor of Arts in Political Science from the University of Wisconsin – Stevens Point.  She is admitted to practice law in the State of Wisconsin.  Prior to joining NuQuest in March of 2010, she spent over ten years at Nationwide Insurance working with both workers compensation and personal liability claims teams.

As Director of Implementation and Strategy, Jennifer utilizes her extensive experience in claim handling and negotiation to work with clients in choosing the correct products and services to address their particular Medicare Secondary Payer Compliance issues.  Jennifer’s focus is on assisting clients in designing their MSP compliance programs including training and implementation of those programs.  She frequently attends file conferences and provides continuing education presentations.

Rasa Fumagalli, JD, MSCC, NuQuest’s VP of MSP Compliance and Customer Relations, holds a law degree from IIT’s Chicago Kent College of Law with an undergraduate business degree from the University of Illinois. Prior to joining NuQuest, she spent over twenty years specializing in workers’ compensation defense work in the Chicago area. Rasa utilizes her extensive experience in handling workers’ compensation cases when consulting with clients about Medicare Secondary Payer (MSP) compliance issues. She is admitted to practice law in the State of Illinois and was recently elected to the Board of Directors for the National Alliance for Medicare Set-Aside Professionals (NAMSAP).  She is an active member of the Evidence-Based Medicine, Communications, and Liability Committees.


Commercial Repayment Center (CRC) Transition Update:

The Centers for Medicare and Medicaid Services (CMS) recently held a webinar discussing the transition of the Commercial Repayment Center’s (CRC) operating contractor from CGI Federal to Performant Financial Corporation (Performant) for Group Health Plans and Non-Group Health Plans.

During the transition, there will be “dark days” where CRC will not be operating, but transferring files from CGI Federal to Performant.  These dark days begin on Friday, 2/9/2018 at 8 pm and end on Monday, 2/12/2018 at 8 am EST.  On 2/12/2018, Performant Financial Corporation will be operating the CRC.

Performant has provided two contacts for use with respect to the transition:

Ted Doyle – CRC Transition Project Director            Laura Martinez – MSP CRC NGHP Recovery Manager
(925) 337-5558                                                                  (209) 858-3705                             

Additionally, Performant has provided the following email to be used for claims with special needs:

Beginning 2/12/2018, all NGHP CRC correspondence and checks should be sent to:

Medicare Commercial Repayment Center – NGHP
PO BOX 269003
Oklahoma City, OK 73126

*New fax number (844) 315-7627

Fax Number: CRC’s current fax number will be disconnected on 2/6/2018 at 8 pm, the new number begins operation at 8 am on 2/12/2018.

Customer Service Line: telephone number stays the same (855) 798-2627. The phone line will be turned off at 8 pm on 2/9/2018.  Performant to begin its operation at 8 am on 2/12/2018.

All data is being “frozen” at the end of the day on 2/7/2018.  This means no new information or data will be uploaded onto the web portal or into CRC’s system until Performant starts entering the data on 2/12/2018 at 8 am.

All pending appeals will be transferred to Performant during the dark days, to assume handling.  The timeframe for response does not change and Performant requests the industry continue with their regular follow up time-frames.  (i.e. don’t call to see if an appeal with CGI was received by Performant).

Mail sent to the old CRC address will be forwarded to the new PO BOX, however, beginning 2/12/2018, the new PO BOX should be used.  If mail is sent to Performant before 2/12/2018, Performant will hold the mail and start processing beginning 2/12/2018 8 am.