March 1, 2023
Rasa Fumagalli, , JD, MSCC, CMSP-F
It is absolutely crucial that trial lawyers don’t neglect their obligation to address Medicare’s conditional payment recovery claims at settlement. While trial lawyers in a liability settlement usually address this responsibility, it’s essential to remember that Medicare has the right to recover payments from providers, suppliers, physicians, attorneys, state agencies, or private insurers that have received a primary payment (as per 42 CFR Sections 411.24). If Medicare is required to pursue legal action to recover conditional payments, it may end up recovering twice the amount of the primary payment, which can be a hefty sum.
The United States government has shown a willingness to investigate and pursue personal injury law firms that fail to reimburse conditional payments for even relatively small amounts. In fact, a recent investigation into the Baltimore-based law firm, Kandel & Associates, P.A., resulted in a settlement agreement with the United States Attorney for the District of Maryland. The US Attorney alleged that the firm failed to resolve at least 12 Medicare Secondary Payer conditional payment debts and simply disbursed the settlement proceeds. As a result, the Kandel firm had to pay the United States nearly $40,000 to resolve the government’s claims. Additionally, the firm had to designate and train an employee to pay MSP debts and commit to periodic reviews of any outstanding MSP debts with the designated employee. To read more, click HERE
It’s clear that ignoring Medicare Secondary Payer compliance issues at settlement is not an option. As personal injury lawyers, you must have a well-established process to audit/verify an individual’s Medicare status and identify the type of Medicare coverage in place from the date of the injury until settlement. Furthermore, it’s important to document discussions regarding the potential impact of the Medicare Secondary Payer Act on post-settlement injury-related care and add them to the client’s file.
If you’re looking to establish your firm’s MSP compliance protocol, reach out to Synergy’s team of MSP compliance experts for help. By taking the necessary steps, you can avoid this type of government legal action and ensure that your client’s obligations with Medicare are compliantly resolved. Don’t let Medicare Secondary Payer compliance issues derail your settlements—work with Synergy’s team of MSP compliance experts to protect your clients and your practice.
February 14, 2023
Rasa Fumagalli, JD, MSCC, CMSP-F
Oftentimes an attorney representing an injured worker may simply scan the defense’s Medicare Set-Aside and assume all the future medical issues have been addressed in the MSA. This month’s “Since You Asked” column addresses the need to understand the projections in a Medicare Set-Aside report and the importance of considering the non-Medicare covered injury-related expenses the injured worker may incur post settlement.
My client has been receiving workers’ compensation benefits for years. He is now on Medicare and the carrier wants to settle out future medical rights by funding a Workers’ Compensation Medicare Set-Aside (WCMSA). I haven’t seen many WCMSA proposals and am wondering what I should be looking for in the WCMSA. Can you help?
In order to evaluate a WCMSA proposal, you first need to identify all of the medical conditions that are related to the industrial accident. Since your file may not necessarily have all the current medical and pharmacy information, it is important to have a discussion with your client about the nature of his ongoing injury-related treatment. A decision may then be made as to the need for obtaining updated medical and pharmacy records.
Once you have identified the injury-related conditions and are aware of the current medical and drug treatment, you should make sure that the WCMSA report correctly identifies the injury-related conditions as accepted conditions. The conditions will also have corresponding ICD-10 diagnosis codes associated with them. It may be beneficial to confirm their accuracy since these codes will likely be used for the Section 111 reporting of the settlement. If a condition was initially accepted, but was then subsequently disputed, the WCMSA report may also reflect this.
The WCMSA medical treatment projections should be reviewed to ensure that they include projections for the recommended future procedures or treatments that are reflected by the last two years of injury-related medical records. If a procedure is missing because it is not covered by Medicare, it may be funded outside of the WCMSA proposal for non-Medicare covered expenses. The drug projections should be scrutinized in the same way. If a drug is missing because it is not covered by Medicare, it should be funded outside of the WCMSA proposal for non-Medicare covered expenses. Since a workers’ compensation carrier’s responsibility for future medical costs in a workers’ compensation case is not limited to treatment that is covered by Medicare, the injury-related non-Medicare treatments should be accounted for in the settlement as well and you should obtain a non-Medicare expense report to detail the expenses that will not be covered for the injured worker as part of the WCMSA. Treatment projections are priced based on the state’s workers’ compensation medical fee schedule. Drugs are priced based on the Average Wholesale Price (AWP) listed in the current Red Book Drug Reference, with generic drugs priced at the lowest non-repackaged AWP.
When parties are discussing a settlement figure that is inclusive of the WCMSA, the injured worker may want to take steps to mitigate the WCMSA projections. For example, a physician’s switch from a brand name drug to a generic version of the drug may result in significant cost savings, thereby leaving more of the settlement funds as unrestricted.
It is also important to consider whether the WCMSA proposal will be submitted to CMS for review. Although CMS review is voluntary, CMS recommends this review in order for Medicare to become the primary payer after proper exhaustion of the CMS-determined WCMSA. The most recent version of the WCMSA Reference Guide (Guide) (Version 3.8, November 14, 2022) includes Section 4.3 that again cautions parties of the risks associated with a non-submitted WCMSA. It states as follows:
“As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS approved WCMSA amount.”
A note was added to this section as well. It states:
“Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period.
CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.”
The review of a WCMSA proposal should be more than cursory since it will impact the injured worker’s post settlement medical issues. A detailed analysis of the WCMSA and non-Medicare covered expenses is the gold standard to protect your practice and the injured worker.
Synergy Settlement Services team of MSP compliance attorneys can assist you with this type of analysis and guide you through the MSP compliance process. Don’t ever rely upon the carrier to do the necessary work to protect your client, engage your own MSP compliance experts like Synergy here!
February 9, 2023
Rasa Fumagalli, JD, MSCC, CMSP-F
Settlements involving Medicare beneficiaries require additional scrutiny to ensure compliance with the MSP Act. While the Act generally prohibits Medicare from making payment when payment is expected from a primary payer (workers’ compensation plan, liability insurance plan or no-fault insurance), an exception is made when payment is not expected to be made promptly or within 120 days of receipt of the claim. In such cases, Medicare will make payment, but it is conditioned upon the reimbursement of the payment to the Medicare Trust Fund. Compliance with the MSP Act is essential to ensure that Medicare is not making payments for which it is not responsible for.
Primary payers have an obligation to reimburse the Medicare Trust Fund for any payments made on behalf of a Medicare beneficiary. This obligation is demonstrated by a judgment, payment conditioned upon release of liability, or other means, as enumerated in 42 C.F.R. §411.22. Failure to reimburse may result in Medicare filing suit directly for double damages according to 42 U.S.C. §1395y(b)(2)(B)(iii) and 42 U.S.C. §1395y(b)(3). The Centers for Medicare & Medicaid Services (CMS) Memo from December 5, 2011, further notes that Medicare Advantage Organizations (MAOs) and Prescription Drug Plans (PDPs) have the same rights of recovery as Medicare under the MSP Act. This article will discuss the interplay between annual reporting and recovery thresholds, Section 111 Mandatory Insurer Reporting, and conditional payment recovery. A subsequent article will address Medicare’s interest when it comes to post-settlement injury-related treatment.
Annual Reporting and Recovery Thresholds
Prior to 2014, CMS often spent more money pursuing a conditional payment recovery claim than the claim was worth. To address this issue, the Strengthening Medicare and Repaying Taxpayers Act of 2012 (“SMART Act”) was signed into law in January of 2013. The SMART Act requires CMS to publish annual “settlement threshold” figures as of November of 2014. If a settlement falls below the annual threshold, the settling parties are exempt from MSP compliance obligations. This amendment has helped to streamline the conditional payment recovery process and save CMS resources.
On December of 2022, CMS published the 2023 recovery thresholds for liability, no-fault insurance, and workers’ compensation settlements, judgments, award, or other payments. Effective January 1, 2023, CMS’s threshold for physical trauma-based liability insurance settlements is $750.00, meaning settlements of $750 or less do not need to be reported and Medicare’s conditional payments related to the cases do not need to be repaid. The same threshold applies to no-fault insurance and workers’ compensation settlements, provided the insurers do not have an ongoing responsibility for medicals.
Section 111 Mandatory Insurer Reporting
To effectively implement the Medicare Secondary Payer (MSP) framework, Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) was enacted, establishing the Mandatory Insurer Reporting requirement. This enforcement mechanism notifies Medicare of settlements involving Medicare beneficiaries and began in January of 2011. According to CMS, the Section 111 MSP reporting process is designed to ensure Medicare is properly reimbursed for items and services provided to beneficiaries.
Section 111 reporting is the responsibility of a Responsible Reporting Entity (RRE) to Medicare for liability, no-fault, and workers’ compensation plans and insurers. The RRE must report to Medicare if the plan has an Ongoing Responsibility for Medical (ORM) or if the Total Payment Obligation to the Claimant (TPOC) is greater than the threshold of $750.00. Additionally, the RRE must query the Medicare system regularly to identify when a claimant becomes eligible for benefits while the claim is still open.
Under the Section 111 reporting requirements, the RRE must provide the injury victim’s first name, last name, date of birth, gender, Medicare Beneficiary Identifier (MBI), and Social Security Number (or the last five digits). Additionally, the RRE must report International Classification of Diseases (“ICD”)-10 diagnosis codes for the illnesses/injuries alleged, claimed or released in the Total Payment Obligation to Claimant (TPOC) settlement, judgment, award, or other payment. CMS encourages RREs to supply as many valid ICD-9/ICD-10 Diagnosis Codes as possible for the most accurate coordination of benefits. However, in CMS’s recent webinar on Section 111 reporting, it was cautioned against submitting diagnosis codes for pre-existing or unrelated conditions, even if included in the initial medical records. The TPOC report must also include the date and amount of the settlement.
If the RRE fails to comply with Section 111 reporting obligations, they may face a penalty of up to $1,000 per day per claim. As of January 2023, this penalty has yet to be enforced although the imminent arrival of final regulations on Civil Monetary Penalties for Section 111 violations will likely change this. A scenario where CMS may impose penalties is when the RRE submits information that conflicts with their later position when CMS attempts to recover conditional payments.
The Role of ICD-10 Diagnosis Codes in Conditional Payment Recovery
ICD codes are maintained by the World Health Organization (“WHO”) and are designed as an international health care classification system used to collect morbidity and mortality statistics, develop claim reimbursement systems, and conduct disease-related surveillance. To ensure greater accuracy, the Centers for Medicare and Medicaid Services (CMS) adopted ICD-10 codes for Section 111 Mandatory Insurer Reporting for all claim reports with an accident date on or after April 1, 2015. This switch offered five times more diagnosis codes than those found in the ICD-9 system.
The conditional payment recovery process may begin either with the Medicare beneficiary self-reporting the accident or the RRE fulfilling its Section 111 Mandatory Insurer Reporting obligation. When reporting the accident to Medicare, the beneficiary or their representative must provide diagnosis codes for the injured body part. If the beneficiary or representative self-reports through the Medicare Secondary Payer Recovery portal, they can select a specific code, a range of codes, a list of codes, or enter a text description of the diagnosis. The RRE’s Section 111 Mandatory Insurer report will also include ICD-10 diagnosis codes claimed or released in the Total Payment Obligation to Claimant (TPOC) settlement, judgment, award, or other payment. Medicare will use these codes to determine the amount of conditional payment recovery.
Medicare uses the ICD-10 code information to search their database and identify related payments. However, at times, their conditional payment letters will seek reimbursement for services unrelated to the injuries suffered by the beneficiary. This could be due to an algorithmic error or improper bundling of treatments for both unrelated and related conditions. Therefore, it is essential to review the payment summary form carefully to identify and dispute any erroneous payments. When enrolled in a Medicare Advantage plan (Part C or Part D), the plan must be contacted directly to resolve any reimbursement claims, and the itemized Explanation of Benefits should be carefully examined to dispute any inappropriate recovery attempts.
The MSP Act provides a comprehensive framework for Medicare to protect itself from overpayments and ensure that applicable settlements are reported. With the help of Section 111 Mandatory Insurer Reporting and ICD-10 codes, Medicare has the tools to identify and recover funds when a primary payer is available. Considering the significant role that ICD-10 codes play in the conditional recovery process, parties should be aligned in their selection of codes as well as the accident dates.
The Synergy Settlement Services team of MSP compliance attorneys and lien resolution specialists have the expertise to advise you on these matters, so that you are compliant with the intricacies of the Medicare Secondary Payer Act. Contact us for more information.
November 14, 2022
By: Kevin James, Esq.
The Medicare Secondary Payer Act (MSP) has often been described by many courts as notoriously “complex”. This complexity has only increased as Medicare Advantage Organizations (MAO) have increasingly become more litigious in attempts to make law and validate their recovery rights under the MSP.
From exhausting administrative appeals, to applying the correct statute of limitations, to the correct application of the procurement cost reduction under 42 CFR 411.37, to even what the lien amount should be has vexed many personal injury attorneys when aggressive Medicare Advantage Organizations (MAOs) attempt recovery from a members tort settlement.
The 11th Circuit Court of Appeals has attempted to bring some clarity to the statute of limitations in a recent case.
An individual was attacked by a dog, pursued a tort claim against the tortfeasor and obtained a settlement in 2012 for $25,000. The defendant insurance carrier reported this settlement to CMS as required under the MSP, but the MAO plan was never notified.
The Medicare beneficiary was covered under an MAO plan, that since had gone defunct, and paid approximately $8,000 to cover medical bills incurred by the patient. The defunct plan had assigned it its rights to a subsidiary of MSP Recovery or MSPA Claims 1, a Miami based-group that pursues recovery actions.
At some point in 2015, MSPA Claims 1, the assignee for the MAO plan, became aware of the claim and sent a demand letter to the tortfeasor’s carrier, Tower Hill. For reasons unknown, MSPA Claims 1 did not file suit until August of 2018.
At the district court level, MPSA Claims 1 filed suit under the private cause of action provision, 42 U.S.C. § 1395y(b)(3)(A). Both parties then filed summary judgment motions arguing that the 3-year statute of limitations contained in the governmental cause of action was applicable to the case. The essential argument was whether the 3-year statue began to run when the case settled or when MSPA Claims 1 became aware of their potential interest.
The private cause of action that MSPA Claims 1 made in its claim does not actually contain a statute of limitations, the Court requested further arguments on if the governmental statute was the applicable one.
Tower Hill filed a motion for reconsideration and argued that the Court should borrow Florida’s statute of limitations which has a four-year statute of limitations for causes of “actions other than recovery for real property”. The District Court ruled in favor of Tower Hill ruling MSPA Claims 1 claim untimely.
The question before the circuit court, as briefed by the parties, was whether the governmental statute of limitations began to run when the payments and settlement occurred in 2012 or when MSP claims became aware of the settlement. Both parties agreed that the district court had erred by borrowing from Florida’s four-year statute of limitation. Essentially the parties were seeking a determination on if the statute was notice-based or one of occurrence.
Addressing the first question of which statute of limitations is the correct one, the Court ultimately decided that none of the statutes that henceforth been proffered was the correct one.
The Court agreeing that there existed no statute of limitation in the private cause of action that MSPA Claims 1 brought its claim under, the Court ultimately ruled that the appropriate statute of limitation to apply was found in 26 U.S.C. § 1658(a), a catch all statute of limitations found in the federal code. This statute contained a four-year statute of limitations. Thus, the Court held there was no need to borrow from Florida state law and the three-year statute of limitations applied to the government only.
The question left to be answered was when did MSPA 1 Claim’s claim accrue. Thus, the court had come full circle and returned to the essential disagreement between the parties.
The Court found that Section 1658(a) is one of occurrence and that since the MSPA Claims 1 became entitled to reimbursement, through the Medicare Secondary Payer Act, when it paid the claims and the case had been settled in 2012, the claim had accrued in 2012. As stated previously, this was more than six years after the claim had been settled, with the court ultimately ruling that MSPA Claims 1 suit was untimely.
While this case was a defeat for the MAO plan in this instance, it did clarify within the 11th Circuit what the appropriate statute of limitations are for an MAO plan to avail itself of the private cause of action. It also arguably extends the rights of MAO plans as the government would only have a three-year window to enforce its claims while MAO plans now have four.
This case also illustrates why Medicare Advantage liens are often referred to as “hidden liens”. This makes it doubly important that plaintiff’s attorneys are doing their due diligence in ensuring they have located any potential lien holders in a case, particularly when dealing with Medicare eligible individuals. Developing a process to identify and then monitor which “Part” of Medicare a personal injury victim has coverage under is critical to proper resolution as well as compliance with the MSP at settlement.
October 18, 2022
By: Rasa Fumagalli, JD, MSCC, CMSP-F
Medicare has struggled over the years to provide rules clarifying existing Medicare Secondary Payer (MSP) compliance obligations when it comes to post-settlement injury-related care that is released in a liability settlement. Their first attempt at proposed rulemaking took place in 2012 and resulted in the notice of proposed rule being withdrawn in 2014. Their most recent attempt, which began in December of 2018, sought to provide a proposed rule that “would clarify existing Medicare Secondary Payer (MSP) obligations associated with future medical items related to liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or other payments.” Although this notice of proposed rule had been delayed many times over the years, it was finally withdrawn on October 13, 2022.
Medicare’s withdrawal of the notice of proposed rule does not give settling parties a free pass when it comes to Medicare Secondary Payer compliance issues. So where does this leave parties settling liability cases involving Medicare beneficiaries? The answer, as always, lies in the Medicare Secondary Payer Act. The Act states that Medicare is prohibited from making payments for services “to the extent that payment has been made or can reasonably be expected to be made under any of the following: (i) workers’ compensation; (ii) liability insurance; (iii) no-fault insurance.” Further guidance comes from the May of 2011 CMS Region VI Stalcup memo and the CMS September of 2011 Benson memo which both provide insights into Medicare’s position when it comes to shifting the burden to Medicare post settlement. Unlike accepted workers’ compensation settlements, liability settlements have different considerations and require a more nuanced analysis of the potential impact of the MSP Act on a settlement. Although a Medicare Set-Aside allocation may be appropriate in a certain case, there are many settlements where other options are more appropriate.
The Medicare trust fund remains in dire financial straits. Medicare’s decision to withdraw the notice of proposed rule might mean that a greater focus will be placed on the Section 111 Total Payment Obligation to Claimant (TPOC) reporting resulting in increased denials of post-settlement injury-related claims. For the time being, our recommendation is as always make sure that your client is educated about the potential impact of the MSP on payment for future injury-related care post settlement. Consulting with experts and having the issues explained to an injury victim are best practices. Then ultimately, you want to document your file about what has been done to educate the client and their final decision. If a denial of care occurs in the future, you then have documentation of what was done and why.
Medicare is analogous to Medicaid at settlement meaning just like the obligation to advise a Medicaid beneficiary about the availability of a special needs trust, you need to explain to your client about the possibility of establishing a set-aside. As commentators have suggested, a lawyer must “ensure his client is informed about the options of structured settlements, trusts and the effect of the judgment or settlement on the client’s public benefits.” The same is true for Medicare beneficiaries. Making sure a client receives proper counseling about the form of settlement is required by the Rules of Professional Conduct.
We will continue to monitor this issue and keep you advised of further developments. Synergy’s team of MSP compliance experts is here to assist you in navigating the murky waters of MSP compliance.
 Miscellaneous Medicare Secondary Payer Clarifications and Updates (CMS-6047), RIN: 0938-AT85.
 42 C.F.R. § 411.20; see also 42 U.S.C. § 1395y(b)(2)(A).
 Memorandum from Sally Stalcup, MSP Regional Coordinator, CMS, Medicare Fee for Service Branch, Division of Financial Management and Fee for Service Operations (May 25, 2011), available at https://static1.squarespace.com/static/5807a480d482e9eb1f5d9c54/t/589d81823e00bea366d73d90/1486717333702/00-CMS-Sally-Stalcup-Memo-5-25-2011.pdf; Memorandum from Charlotte Benson, Acting Director, Financial Services Group, Office of Financial Management, Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Consortium Administrator for Financial Management and Fee-for-Service Operations, Medicare Secondary Payer—Liability Insurance (Including Self-Insurance) Settlements, Judgments, Award, or Other Payments and Future Medicals – INFORMATION (Sep. 30, 2011), available at https://www.cms.gov/files/document/future-medicals.pdf.
 Bernard A. Krooks & Andrew H. Hook, Special Needs Trusts: The Basics, The Benefits and The Burdens, 15 ALI-ABA Est. Plan. Course Materials J., 17 (Dec 2009).
 See Model Rules of Prof’l Conduct, R. 1.0(e) and 2.1.
Rasa Fumagalli, JD, MSCC, CMSP-F
Personal injury settlements rarely make an injury victim whole. In light of this, cost management decisions factor into the strategy of the case. For example, while both life care plans and medical cost projection reports may be used as support for a settlement demand, their costs are very different. Life care plans may range anywhere from on the low end $10,000 to $20,000 or more, while medical cost projections are much more economical. The decision on which report to select may depend on the nature of the injuries, the expected range of settlement of the case, available coverage and time constraints associated with the settlement negotiations.
A comparison of the two reports is reflected in the below chart. Although both reports provide support for a demand of future injury-related medical care, the life care plan will usually be based on an in-home visit and interview with the injury victim. The medical cost projection, on the other hand, is based on information that is provided by the attorney handling the matter. Both reports are based on a review of medical records, but the life care plan report may also look to information gained through a conversation with a treating physician. Life care plans often have addendums that address lost earnings, replacement costs of household services and home modifications, while medical cost projections do not. In deciding which of these reports is appropriate to increase the value of the case, an attorney should avoid using a sledgehammer to crack a nut.
|Life Care Plan (LCP)||Medical Cost Projection (MCP)|
|Medical costs||Medical costs|
|Durable medical equipment/supplies||Durable medical equipment/supplies|
|Physician/specialist visits||Physician/specialist visits|
|Rehabilitation/physical therapy||Rehabilitation/physical therapy|
|Future surgeries/procedures||Future surgeries/procedures|
|Home health care||Home health care|
|Long term care||Long term care|
|Transportation mileage||Transportation mileage|
|Assessment of lost income||N/A|
|Assessment of loss of earning capacity||N/A|
|Estimate of home modifications||N/A|
|Estimate of vehicle modifications||N/A|
|Estimate of cost of replacement of household services that can no longer be performed||N/A|
|Based on in-home visit and interview with injury victim||Based on intake packet provided by injury victim’s attorney|
|Review of medical records||Review of medical records|
|Contact with physicians||N/A|
|Average cost: $15,000||Synergy’s cost: $2,500|
In the right case, don’t miss the opportunity to hit the defense hard early on by quantifying the future medical damages suffered by your client. You don’t have to spend tens of thousands of dollars on a life care plan to do this. Instead, let Synergy prepare a Medical Cost Projection (MCP) report quickly, based upon existing medical records (costs $2,500.00). That way you can quickly present evidence of future medical expenses and include the future medical cost projection report in your initial demands so you can settle cases earlier on. Contact Synergy today to learn more about how our MCP report can simplify the negotiation of future medical care for your case.
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