Review of MSP Compliance

The Medicare Secondary Payer Compliance industry had an eventful 2016. Between Commercial Recovery Center’s (CRC) conditional payment recovery issues, CMS’ change in its process and then unchanging the process, Medicare Advantage Organization case law and more, there has been plenty to keep everyone engaged throughout the entire year. With a transition of the government in 2017, we expect another year of excitement and high involvement

Regarding conditional payments, the following highlights occurred in 2016:
• CRC’s “grouper” includes diagnosis/charges for unrelated charges forcing applicable plans to appeal conditional payment notices and initial determinations on massive scale
• CRC’s town hall presentation:
 Importance of proper authorizations from both claimant and applicable plan
 Process of transferring collection to BCRC and against the claimant and/or recipient without notice to the applicable plan
 Intent to Refer to U.S. Department of Treasury correspondence process

• Regarding 2017, the CRC has advised plans to:
 Provide the diagnosis codes reported to CRC and used in searching for conditional payments on their conditional payment repayment correspondences. This will allow the applicable plan to determine if the diagnosis and conditions have been correctly reported
 Provide additional functions to the Medicare Secondary Payer Recovery Portal (MSPRP) allowing for upload of appeal of initial determination, viewing of account receivable information and downloading of redetermination

With respect to workers’ compensation MSAs and liability MSAs:
• In reviewing workers’ compensation MSAs, CMS without notice began requesting a court order demonstrating the non-compensability of a claim, in addition to proof of no payment, to approve a zero waiver request. This change by CMS was quickly retracted due to the huge response from the stakeholders in the industry
• CMS requests bids for MSA review contract that includes LMSAs
• 2017 Re-Review process for WCMSAs in specific circumstances where CMS already approved
a MSA.
• 2017 Re-Review process incorporating utilization review

With respect to case law, the following provides highlights for the year:
• Oklahoma Supreme Court finds workers’ compensation opt-out law unconstitutional – Vasquez v. Dillard, Inc., 2016 OK 89 (Sept. 13, 2016)
• Medicare Advantage Organizations’ big win in 11th Circuit of the United States Court of Appeal who upheld award of double damages against liability insurance carrier – Humana Medical Plan v Western Heritage Insurance Company case, No: 15-11436 (U.S.C.A. 11th Cir. 8/8/2016)
• Medicare Advantage Organization can collect against a claimant’s attorney fees – Insurance Co. v Parris Blank, LLP, 3:16CV79HEH (E.D. Va.2016)
• Dr. Takemoto appeals the dismissal of his False Claims Act suit by the District Court (U.S.C.A. 2d Cir., docket number 16-365). Oral arguments are currently scheduled for 1/9/2017.

Contract for No-Fault insurance demonstrates responsibility to reimburse Medicare Advantage Organizations – MSP Recovery LLC v. Allstate Ins. Co., (U.S.C.A. 11th Cir. 2016) (consolidated dockets: 15-cv-21532-JLK, 15-cv-20213-UU, 15-cv-20208-UU, 15-cv-20616- FAM, 15-cv-21687-JLK, 15-cv-21504-JLK, 15-cv-20732-RNS) Not every Medicare compliance event is reflected in this article, however, a few important items that should be kept in mind moving into 2017 are:

• CRC case closure letters may not be the end of the conditional payment collection process. BCRC may be attempting to collect from the claimant or a recipient of settlement funds. If BCRC cannot collect, they have a right to pursue collection against the associated workers’ compensation, liability (including self-insured), or no-fault plan
• Medicare Advantage Organization’s reimbursement rights must be taken seriously
• Contractors will be bidding to provide CMS liability MSA review

With the delay and difficulties the industry had with CRC and CMS’ about face in its zero waiver procedure, 2017 looks to be a promising adventure with changes on the horizon that appear to be in the right direction.

We will keep you posted as more develops in 2017.