Medicare Settlements.docx

8/11/2019 Medicare Settlements.docx

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2014 Livingston Law Firm RetreatJohn C. HentschelFebruary 1, 2014


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One of the most completely impenetrable

texts within human experience. Cooper University Hospital v. Sebelius, 636 F.3d

44, 45 (3d. Cir. 2010)


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Medicare Basics Reporting Obligations Reimbursements for Paid Medical

Expenses Set Asides for Future Expenses Best Practices


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Guaranteed health insurance Works like regular private

market insurance Premiums

Copays

Deductibles

Out of pocket costs


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65 and over who worked andpaid into system

Younger disabled (SSD morethan 24 months)

End stage renal failure ALS


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Inpatient hospital stays 2 night rule

90 day maximum SNF in some cirmcumstances

Hospice stays

Generally no monthly premium if10 years of FICA payments


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Monthly premium (deducted fromSS)

Out patient services after deductible

($147 in 2013) Physician services

Diagnostic imaging Tests

Durable medical equipment Optional if still working and covered

under private insurance


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Private health insurance funded throughbeneficiary premiums plus private monthlypremium

Additional coverages Reduced copays and deductibles


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Anyone with Part A or Part B eligibility Designed and administered through

private insurers and regulated throughCMS


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In addition to traditional Part A/Bcoverages

Separate premiums


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If a personal injury plaintiff is Medicareeligible, obligations and duties aretriggered for all involved in the action

Plaintiff

Defendants

Insurers

Health care providers


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42 USC 1395y(b)(2) - Beneficiaries of GHPwho get payments from NGHP, i.e.primary plans

Liability insurance

No-fault insurance (med pay)

Workers compensation

Self insurance


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IF Medicare pays for an item or servicethat should have been paid by a primary

plan, reimbursement required per 42

CFR 411.22. See Overview of the Recovery Process

flowchart


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Right of action for CMS against responsibleparties Insurer or self-insurer TPA

Employer Facility or provider Attorneys (US v. Harris 2009 U.S. Dist. LEXIS 23956

(N.D. W.Va. 2009)) Double damages plus interest Private right of action

Does not apply to Medicare Advantage (Part C) Plans,(Parra v. Pacificare of Arizona, Inc., 715 F.3d 1146 (9thCir. 2012))


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Who pays first if I have a claim for no-fault or liability insurance?

No-fault insurance or liability insurance pays first and Medicare payssecond, if appropriate.

If doctors or other providers are told you have a no-fault or liability

insurance claim, they must try to get paid from the insurance companybefore billing Medicare. However, this may take a long time.

If the insurance company doesnt pay the claim promptly (usually within120 days), your doctor or other provider may bill Medicare. Medicaremay make a conditional payment to pay the bill, and then later get back

any payments the primary payer should have made.Medicare and Other Health Benefits: Your Guide to Who Pays First,

CMS, p. 13


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Unlike most liens, no notice requirement Super lien, i.e., superior to al other claims


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Benficiary should notify COBC of theavailability of other coverages

COBC notifies recovery contractor Contractor will Conditional Payment

Summary (CPS) When settlement reached, demand letter

sent Payment to CMS within 60 days


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Plaintiffs counsel, since 1980, has had

the responsibility to report to CMS theexistence of other potential sources ofpayment for medical services and items

Section 111 of MMSEA added newreporting requirements

To have CMS pay appropriately for Medicare-covered itemsand services furnished to Medicare beneficiaries.

Allows CMS to determine who should be the primary payer ofservices.


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Responsible Reporting Entities Insurers

Liability insurance Workers compensation No fault Self insured entities

Attorneys are NOT RREs


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E-file Secure web portal

Quarterly Triggered by settlement withbeneficiaryAssuming ORM or paying TPOC

$1k/day for non-compliance


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SMART Act of 201242 USC 1395y(b)(9) In 2014, HHS will establish a minimum amount

below which reporting and reimbursement is not

required


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Medicares interests must be settled before

any settlement funds distributed (42 USC1392y(b)(8)(iii))

Process of identifying all payments cantake time and should be done prior to finalsettlement discussions

RRE needs up to date CPS prior toresolving case


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Set-Aside ArrangementAn administrativemechanism used to allocate a portion of asettlement, judgment or award for futuremedical and/or future prescription drug

expenses. A set-aside arrangement may be inthe form of a Workers CompensationMedicare Set-Aside Arrangement (WCMSA),No-Fault Liability Medicare Set-Aside

Arrangement (NFSA) or Liability Medicare Set-Aside Arrangement (LMSA).


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42 CFR 411.46 provides that if lump-sumsettlement is intended to provide for allfuture medical expenses due to a work-related injury, Medicare payments for suchservices are excluded until the expensesequal the amount of the payment


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Cannot on own decide to require a setaside

Must rely on cooperation with beneficiary In interest to do so to avoid

Double damages and interest

Easy target

Caveatbeware of those trying to sellservices!


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Identify early as practicable if a claimant isa Medicare beneficiary Even if no benefits paid, notice still must be given

Medical records RRE queries

Communication with claims rep and client

on obligations and strategy for compliance


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Special Interrogatories Have YOU applied for or are YOU eligible for Medicare benefits ? Please state the date on which YOU first became entitled to

receive such benefits. Please state YOUR Health Insurance Claim Number.

Please state YOUR Social Security Number, Are any of the medical expenses related to YOUR injuries been

submitted to, or paid by, Medicare? Have you been diagnosed with Lou Gehrigs disease? Are YOU receiving treatment for end-stage renal disease or

kidney failure?

Have YOU applied for SSDI (Social Security Disability) benefits? If YOU have applied for SSDI, state the date of application and

the current status of your application.


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Medicare Settlements.docx