The OMB Issues Intent of Notice of Proposed Rule Making for Section 111 Penalties

In an abstract entitled “Civil Money Penalties and Medicare Secondary Payer Reporting Requirements,” the Office of Management and Budget has issued another intent of Notice of Proposed Rulemaking this time involving Section 111 Reporting penalties.  Specifically, the abstract of the Notice provides as follows:

Section 516 of the Medicare Access and CHIP Reauthorization Act of 2015 amended the Social Security Act (the Act) by repealing certain duplicative Medicare Secondary Payer reporting requirements. This rule would propose to remove obsolete Civil Money Penalty (CMP) regulations associated with this repeal. The rule would also propose to replace those obsolete regulations by soliciting public comment on proposed criteria and practices for which CMPs would and would not be imposed under the Act, as amended by Section 203 of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act).

Pursuant to the SMART Act, civil penalties for non-compliance with Section 111 are up to $1,000 per day, per claimant.  However, no official guidance regarding how these penalties will be determined and enforced has been issued by CMS.  Similar to the Notice issued by the OMB we reported on last week involving Liability Medicare Set-Asides, action to be taken on the Notice of Proposed Rulemaking is set to take place in September 2019.  NuQuest will continue to keep you abreast of any additional developments as they become available.  For  further questions regarding this Notice or for any of your Medicare compliance needs, please contact the NuQuest Legal Team.

NuQuest’s Diligent Monitoring of CMS Determinations Results in a Successful Re-Review and MSA Reduction

Pursuant to Section 9.4.6.1 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 9.4.6.1 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.

CMS Determines TENS Treatment Ineffective for Chronic Low-back Pain (CLBP), June 15, 2012

On June 8, 2012, CMS published its final decision regarding the use of TENS for CLBP. It has been decided that TENS is not reasonable and necessary treatment for CLBP and is no longer a Medicare-allowable expense. 

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Stanton v. State Farm Mutual Insurance

Stanton v. State Farm Mutual Insurance
Automobile Insurance Company
No. 11-cv-282-JPG-DGW

2011 WL 3678912 (S.D.Ill.Aug. 22, 2011) 

This case involved an attempt by a defendant insurer (State Farm) to include Medicare’s recovery contractor (MSPRC) on the settlement check in relation to the resolution of a wrongful death claim to ensure that Medicare’s interests were properly protected for conditional payments issued by Medicare.

The plaintiff objected and sought a court order from the Illinois state court ruling that the MSPRC need not be included as a payee on the settlement draft.  State Farm filed an interpleader action against the Secretary of the Department of Health and Human Services bringing Medicare into the action. Continue reading “Stanton v. State Farm Mutual Insurance”

Phillips v. Kaiser Health Plan, Inc., et.al.

Phillips v. Kaiser Health Plan, Inc., et. al.
No. C 11 – 02326 CRB
2011 WL 3047475 (N.D.Cal.July 25, 2011)

This case involved a putative class action filed against Kaiser Health Plan, Inc. (Kaiser), a Medicare Advantage (MA) Plan, and other related MA entities. 

The plaintiff alleged that (a) Kaiser was improperly and “illegally” demanding reimbursement of its accident related medical expenditures in an amount greater than that which would have been recoverable under traditional Medicare, and (b) that certain marketing and business practices employed by Kaiser violated California’s Unfair Competition Law and Consumer Legal Remedies Act.

The plaintiff filed this case in California state court, which Kaiser removed to the United States District Court for the Northern District of California (hereinafter referred to as the “court”).   This case then came before the court on (a) the plaintiff’s motion to remand and (b) Kaiser’s motion to dismiss.  Continue reading “Phillips v. Kaiser Health Plan, Inc., et.al.”