Medicare Secondary Payer Compliance: How to Mitigate Exposure in the Medicare Beneficiary Personal Injury Case - Hardcover
Medicare Secondary Payer Compliance: How to Mitigate Exposure in the Medicare Beneficiary Personal Injury Case - PDF
Chapter 7 - MMSEA Section 111 Reporting
A. Mandatory Insurance Reporting Background
1. Aliases of the Act
There is no shortage in confusion with regard to this topic. Anytime clarity can be achieved, the authors strive to bring it to the reader’s attention. The electronic requirements of the Act have many aliases. It is best to understand those aliases and where they came from in order to minimize confusion when discussing this topic. Keep in mind however, that whatever name or acronym is used, its requirements for electronic reporting are the same. Stated differently, only one law was passed.
At the close of 2007, Congress was required to extend funding, as it has done so for several years with regard to certain programs it had previously established. One of the programs to be extended was the State
Children’s Health Insurance Program or “Schip.” As was customary at the time, Congress could not pass legislation without a way to pay for it. The purpose of this rule was to keep the deficit under control. Consequently, this important funding measure was in jeopardy unless a “pay for” could be found. One key “pay for” was provided by CMS which suggested that a portion of the proposed extension bill could be funded if CMS was authorized to collect information from primary plans about liability, worker’s compensation and no-fault claims that were resolved. The Congressional Budget Office (CBO) agreed and scored savings of $2.4B1 over 10 years if the reporting requirement was added. The recommendation gathered steam and the Schip legislation was able to move forward. Consequently because of its funding relationship with the proposed extension act one of the names associated with the reporting law became “Schip.”
Full Table of Contents from "Medicare Secondary Payer Compliance: How to Mitigate Exposure in the Medicare Beneficiary Personal Injury Case"
TABLE OF CONTENTS
About the Authors
The Hard Facts About Medicare Secondary Payer
A. Entitlements and Reality -There is no free lunch!
1. Entitlement Programs - Social Security and Medicare
2. The Reality Created by Medicare
B. Historical Overview of the Act
1. Medicare Act (Established in 1965, effective July 1, 1966)
2. Omnibus Reconciliation Act (1980)
3. Common Law Development
a. Thompson v. Goetzman.
b. U.S. v. Baxter International
4. Medicare Modernization Act (2003)
5. The Medicare & Medicaid SCHIP Extension Act
C. The Advantage of CMS
1. Repayment Obligations
2. Jurisdiction Over CMS
3. Manuals, Memos, Alerts, Bulletins, Conference Calls, etc.
4. CMS is Given Deference
D. Medicare Benefits
E. The Roadmap for Finality
Best Practices to Resolve Medicare Conditional Payments
A. Does the Liability Claim Involve a Medicare Beneficiary
1. Options for the Plaintiff
2. Options for the Defendant
B. How to Notify Medicare
1. Medicare Contractors
i. Coordination of Benefits Contractor
ii. Medicare Secondary Payer Contractor (MSPRC)
C. How to Obtain Conditional Payment Information
1. Notify COBC
2. Transmittal of Request to MSPRC
3. The Conditional Payment Letter
4. Relatedness Request
D. The Demand/Recovery Letter
Disposition of the Case
1. Medicare to be Included as Payee on the Check
2. Disbursement Amount and Timeline
3. Waiver of Medicare Beneficiary Private Cause of
Action Under 42 USC 1395y(b)(3)(A)
4. Identification of Injuries and Associated ICD-9 Codes
5. Disclosure of the Medicare Beneficiary's Rights of
Waiver, Compromise, Appeal and Procurement Costs
and Impact on Future Medicare Benefits
a. Waiver Option #1: §1870(c) Waiver:
Contractor-Based Waiver Decision Based
Upon Two Key Considerations
i. Financial Hardship
ii. Equity and Good Conscience
b. Compromise: Federal Claims Collection
Act - Handled by CMS Regional Offices.
The Medicare beneficiary may attempt at this
point to argue allocation based on fault
c. Waiver Option #2: §1862(b) Waiver: Only
CMS can Consider §1862(b) Waivers. It must
be in best interest of the Medicare Program and
is virtually never used
6. Cooperation Clause and Survival of Consent to
7. Statement that the Plan has Exhausted Benefits
8. TPOC Amount and Date
9. Right to any Salvage from the Reimbursement Claim
(used when the claimant is unrepresented)
10. Waiver of Violation of Fair Claims Practices in
Regard to Distribution of Proceeds
B. Judgment or Award
1. Special Verdict Form
2. Post-trial Motions
Future Medical Care Considerations
A. The Liability Medicare Set Aside - Myth or Reality?
1. The Act and future medical considerations for
the liability industry
2. Liability settlements must address future medical
B. Suggested procedure for future medical considerations
The Case For The State Court's Role To Manage The
Medicare Secondary Payer Liability Claim
A. CMS as a Party to the Litigation?
B. What Can the Courts Do?
C. Extreme Amount of Communication with the Contractor
D. Scheduling Order
E. Impediments to the Process: How Can the Courts Help?
F. Can Medicare Bend to Consider Fault?
Hadden v. U.S
G. Making the Case for a Court Order Shaping Allocation
H. Without Court Involvement, Medicare Can Suspend Benefits
The MSP Administrative Appeal Process
A. Federal Question Jurisdiction over CMS
B. Due Process of Law
C. Available Administrative Review
1. Waiver under Section 1870(c) of the Social
2. Waiver under Section 1862(b) of the Social
3. Waiver Request Based Upon Non-Relatedness
D. Appealing CMS/MSPRC Denials for Request for Waiver
E. Judicial Review of an Agency Determination
MMSEA Section 111 Reporting
A. Mandatory Insurance Reporting Background
1. Aliases of the Act
2. Who is Responsible for Compliance?
B. Steps of Compliance for Section 111
2. Testing and Claim Data Submission Timeframes
3. General Reporting Considerations under Section 111
a. TPOC Reporting
b. ORM Reporting
C. Section 111 Data
D. CMS Defined Mass Torts
E. What will Medicare do with Section 111 Data?
Medicare and Technology
A. Mandatory Insurance Reporting
B. Common Working File
C. Confirmation of Medicare Beneficiary (Query Function)
E. Conditional Payment Information
Roy A. Franco is a principal of Franco Signor LLC, a Liability Medicare Secondary Payer Compliance group. Before joining the firm, Mr. Franco worked for Safeway Inc., a Fortune 50 grocery retailer at its corporate offices located in the San Francisco Bay Area. During his 15 year career with Safeway Roy was the Director for the Company's self administered liability claims operation. Having well over 1700 retail facilities in 26 states as well as a complement of distribution centers and manufacturing plants, there was no lack in the variety and type of tort claim that fell within his area of responsibility. Mr. Franco has been engaged with the liability industry to promote awareness and support for reform of the Medicare Secondary Payer Act. Mr. Franco has advocated change on three levels: Legislative, Regulatory and Common Law Advocacy and through the Medicare Advocacy Recovery Coalition (MARC) which was formalized into a coalition as of November of 2008. Mr. Franco is presently co-chairman of MARC, and he assists large companies and insurers with developing protocol for their claims operations.
Jeffrey J. Signor is a principal of Franco Signor LLC, a Liability Medicare Secondary Payer Compliance group. Mr. Signor was formerly a partner in one of the northeast's most respected civil litigation defense firms, Goldberg Segalla LLP. His specialty was in litigation and appellate practice. Mr. Signor has a number of published opinions before the New York Appellate Division that have brought him recognition amongst his peers in the advocacy arena. Mr. Signor now exclusively focused his practices on Medicare Secondary Payer Act Compliance, negotiating the cooperation between the plaintiff and defendant to mitigate exposure under the Act and its related regulations. As a nationally recognized expert, he regularly publishes and speaks on the topic of the Medicare Secondary Payer Compliance.