Friday, May 29, 2009

Not Collecting from Liability Insurance

Posted by Mary Skinner

In a big personal injury case where the patient has Medicare what is the consequence of a medical provider not even attempting to collect from the liability insurance within 120 days? I believe that some providers have absolutely no intention to collect from liability insurance within 120 days when it's a big case and they take no action at all. Is the consequence that they are limited to the Medicare amounts? Or is there no consequence at all?

-Colorado Attorney

Unfortunately, there is no consequence to providers if they choose not to bill the liability insurance. As of May 2006, providers no longer have to bill Medicare. They have the option of either billing Medicare or waiting for settlement at which time they can receive payment for actual charges. With that said, once a provider submits a claim to Medicare, although they can refund Medicare for the claims they have paid, submission to Medicare negates their right to seek actual charges.

-Mary Skinner

Tuesday, May 26, 2009

Medicare Part C

Posted by Matthew Garretson

Currently, I represent a lady covered under Wellcare PFFS which is self-described as a Medicare advantage private fee-for-service plan. Under these circumstances and assuming there is no inpatient hospitalizations, who has a right of subrogation/recovery? Does Medicare, Wellcare or both have any right of recoupment? I already plan to submit a SSA-3288 request for information from the social security administration but wanted to run this by you as well. Also, are there any other special concerns I need to be aware of under these circumstances? Thanks in advance for all your assistance.

-Ohio Attorney

Under these facts, the right of recovery would lie with Wellcare. As a general rule, you need to look at the plan language because these are programs that “may” assert a right of recovery (under the applicable statute), but they must have it in their plan language. Hope that helps…

Monday, May 18, 2009

Medicare Set-Aside Payment Determination

Posted by Karen Sanning

I have a set-aside from a workers' comp injury and don’t quite understand all the rules. I recently was in an accident and re-injured myself. I need to have surgery in the same area from the previous injury. Because of this I won’t need to use my set-aside money because the other person’s insurance company has to pay for my new injury and surgery. If I don’t ever have to use the set-aside money who gets to use it?

The world of Medicare Set-Asides can be very complex; however you are correct in your assumption that since your new injury is the result of a third party injury, your MSA is not responsible for payment of any claims resulting from this injury. With that being said, your inquiry as to what happens to the funds that are currently in your MSA should you not use them is very valid.

Previously, The Centers for Medicare and Medicaid Services (CMS) allowed for a 25% reduction of the total dollar amount of the MSA should a claimant's condition improve after 5 years (CMS memo dated July 11, 2005), but in the August 25, 2008 CMS memo, they have rescinded that decision and require that the MSA fulfill the original requirements regarding the dollar amount assigned and the life expectancy of the claimant. This means your funding must stay intact and cannot be reduced.

-Karen Sanning

Thursday, May 14, 2009

Client Advisory Update 5/11/09: Update on MMSEA Procedural Changes

Posted by John Cattie

On May 11, 2009, the Centers for Medicare and Medicaid Services (“CMS”) posted an alert (the “Alert”) on its website related to the pending implementation of Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (the “MMSEA”). The Alert provides updated reporting guidance to all liability insurance (including self-insurance), no-fault insurance and workers’ compensation responsible reporting entities (“RREs”). The Alert details several procedural changes to MMSEA implementation since publication of the User Guide on March 16, 2009. Those changes are as follows:

1. Extension of Registration Period. The registration period for non-Group Health Plan RREs, previously scheduled to end on June 30, 2009, has been extended through September 30, 2009.

2. Submission of Live Production Files. RREs are now required to submit its first live production files no later than its assigned window in Q2 2010 (April – June) instead of Q1 2010 (January – March).

3. Testing Period. The testing period for the submission of Claim Input Files will take place from January 1, 2010 through March 31, 2010. Previously, this period was to last from July 1, 2009 through December 31, 2009.

4. Early Submission. If an RRE completes the registration process and completes testing successfully prior to its assigned submission window, it may begin submitting live production files starting January 1, 2010.

5. Query Files. Query files may be submitted starting on July 1, 2009, but only if the RRE has completed registration and is in testing status according to CMS standards.

6. TPOC Reporting Exception. A Total Payment Obligation to the Claimant (“TPOC”) does not have to be reported if the settlement occurs between July 1, 2009 and December 31, 2009.

7. ORM Reporting. Reporting related to Ongoing Responsibility for Medicals (“ORM”) must still be reported if it occurs on or after July 1, 2009, but should be reported according to the revised time periods provided in the Alert.

8. Multiple TPOCs. If there are multiple TPOCs present, only those occurring on or after January 1, 2010 should be reported.

In light of the Alert, the revised MMSEA implementation timeline looks like this:
• May 1, 2009 – Sept. 30, 2009: Registration
• July 1, 2009: Test/Production Query Input Files Accepted
• January 1, 2010: Claim Input File Testing Begins
• January 1, 2010: Production Claim Input Files Accepted
• April 1, 2010 – June 30, 2010: Initial Production Claim Input Files Due

We view these changes as a positive development for RREs to have the necessary time to comply with Section 111 reporting rules. Given these changes, however, we would expect CMS to put a premium on proper reporting once live production files are mandated.

To view the Alert, please click here.

Thursday, May 7, 2009

ERISA plan’s reimbursement rights

Posted by Matthew Garretson

Which plan document governs an ERISA plan's subrogation/reimbursement rights: The plan documents in effect at the time of the beneficiary's injury, the plan documents in effect at the time each health benefit is paid for treatment of the injury, the time of the settlement of the beneficiary's liability claim, the time the beneficiary receives settlement payments (for example structured settlement payments) or some other date? I've seen where the Pa. Supreme Ct. held that a plan's subrogation rights are determined at the time the benefit payment is made (Wilmer v. PEBTF, 939 A2d 843 (Pa. 2007)), but I've also seen general references to the time of injury as the determinative date.

-Georgia Attorney

In our experience, it is the plan in force at the time of the injury through the treatment in question. Please let us know if we can be of any further assistance.

-Matt Garretson

Monday, May 4, 2009

MMSEA Reporting Deadlines

Posted by Marlene Wilson

I am confused as to the reporting deadlines. After reading the guide and several articles on this subject, including some of the posts on this blog, I am under the impression that an RRE will submit information regarding claimants/beneficiaries and the potential and/or ongoing litigation on the scheduled quarterly basis; however, if and once an actual settlement/payment/judgment/award is reached and/or made, the RRE should immediately report same regardless of the next quarterly file submission. In other words, it would not make sense from a settlement standpoint to reach a settlement and then wait anywhere from a month to four months, depending on how far out the next quarterly submission date comes, before reporting the settlement because that would just be 1-4 more months that the claimant would have to wait for the final demand letter. Can you confirm that the RRE should immediately report the settlement/judgment/award/payment rather than waiting to include same on the next quarterly file submission?

-Louisiana Attorney

There is a seven day reporting period in each quarter when an RRE can submit claims information on Medicare eligible claimants. That is the only time that a submission can be made. When you reach a settlement, you will report that settlement during your next quarterly submission. You do not need to report a potential claim.

You can submit a query to determine whether the claimant is Medicare eligible once a month. The fact that you submit a query does not mean that you are obligated to include that claimant in a subsequent reporting of claims.

Please let us know if you have any further questions.

-Marlene Wilson