And they didn't see it coming........

Rafael Gonzalez authored a very helpful, and spot on, post today that summarizes the new approach of The Centers for Medicare and Medicaid Services (CMS) to recoup benefits under Medicare Secondary Payer law (42 U.S.C. § 1395y(b)) (MSP) before a final determination is made in the underlying workers' compensation claim.

Rafael Gonzalez

With multiple reporting trigger points CMS is new able to capture data quickly and with the implementation of the expedited US Treasury debt collection procedures, the Digital Accountability and Transparency Act (DATA Act). the process will now  ignore the sluggish/delayed workers' compensation program/adjudication.

CMS has now operationalized a new procedure, "As part of the continuing efforts to improve the Coordination of Benefits & Recovery (COB&R) program and claims payment accuracy in Medicare Secondary Payer (MSP) situations, the Centers for Medicare & Medicaid Services (CMS) will be transitioning a portion of the Non-Group Health Plan (NGHP) recovery workload from the Benefits Coordination & Recovery Center (BCRC) to its CommercialRepayment Center (CRC)."

Ironically, this process cuts through the red tape and cottage industry's interests of the State programs and moves the claims to the goal of Federalization of the entire system based also on a uniformity of processing, coding and determinations at the Federal administrative level. See also, D. Torrey, The Federalization Standards Issue, A Short History Before and After NFIB v. Sebelius (2012), ABA, 2013. "These views speak loudly to the expectation of educated observers that state-based workers’ compensation will endure and that federalization is unlikely."

Additionally, the cottage industries (lawyers, insurance carriers & employers, ie. MARC) who lobbied for The Strengthening Medicare and Repaying Taxpayers (SMART) Act of 2011, never saw the forest from the trees as they tried to stake out their territory.

Perhaps, the very next step may be an effort to follow the liability program models, wherein pre-disposition, alternate resolution, is possible early in the process, ie. the mass tort specialized programs for resolution. 

Of course, workers' compensation (WC) insurers and employers would then need to really expedite WC claims. But then, wasn't that the intent of the now antiquated 1911 system anyway?

Click below to read the post on LinkedIn:
New Process for Primary Payers Resolving Medicare Conditional Payments Begins Today

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CMS: "The Smarter Act" Introduced in the US Senate

From the folks that brought you The Smart Act comes the sequel, "The Smarter Act." Senator Bill Nelson (D-FL) on July 31, 2014 introduced,  S.2731 - "A bill to amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers' compensation settlement agreements and qualified Medicare set-aside provisions."

As you recall, since the Medicare Secondary Payer (MSP) was enacted in November 1980 to stop workers' compensation insurance carriers from shifting costs onto US taxpayers,  there has been a constant volley of activity between the Federal government, and those who want to maintain a status quo, ie. employers, insurance carriers and "other" financially interested participants. 

Congress and Medicare (Centers for Medicare and Medicaid Services [CMS]), in an effort to shore up the financially ailing Medicare program has been dueling with an employer/insurance company led coalition. The coalition successfully lobbied for The Smart Act  in May 2003. Mandated regulations were published and the stakeholders, including the coalition partners filed multiple comments objecting to the process. 

Purportedly S.2731 requires CMS to establish criteria: for review, calculations, time periods, appeals process, delivery of reimbursement, and  immunity form retroactive laws/regulations.

The latest round of coalition supported legislation is yet another attempt to curb the tidal wave that continues to erode the workers' compensation program as it historically existed since 1911 in the US. 

The real challenge to workers' compensation and its potential extinction, is whether the visionaries can look forward instead of backward. The future will be solutions to Medicare's fiscal integrity, the integration of the Affordable Care Act,  preventive health care, safer workplaces and globalization of the Social Security Disability Insurance (SSDI) system.

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Just Published: 2014 Update - Gelman on Workers' Compensation Law

Jon Gelman’s newly revised and updated treatise on Workers’ Compensation Law has just been published by West Group of Egan, MN. The treatise is the most complete work available on NJ Workers’ Compensation law.

The work offers an in-depth and insightful analysis that provides a  quick and accurate guidance to those who practice workplace injury law. Time-saving comments and instructions shorten the claims process and expedite handling of issues.

New areas of the law reviewed:

The newly enacted SMART Act (The Strengthening Medicare and Repaying Taxpayers Act of 2012), and the proposed Regulations, are discussed at length in this supplement. The newly enacted statutory provision concerning balance billing and expanded jurisdiction of the Workers’ Compensation Court is reviewed. The launch of COURTS 4, the expanded workers’ compensation electronic filing system, implementing e-filing of Notice of Motions, is explained along with accompanying sample forms, codes, and instructions for filing/service. The statutory extension of lifetime benefits embodied in recent legislation for surviving spouses of police and fire department employees, who are fatally injured in-the-line of duty, is discussed. The recent case law concerning the second-prong of the “context test” involving the “Exclusivity Doctrine” is reviewed 

New 2014 Section Sections include:

--Dependency—Surviving spouse of police or fire department killed in the line of duty [12.14.50] 

--Case organization utilization reporting tracking system (COURTS)—Court proceeding type codes [25.22.30] 

--Case organization utilization reporting tracking system (COURTS)—E-filing of motions—General motion [25.22.40] 

Gelman on Workers’Compensation Law is exclusively integrated into the entire world-wide leading legal research network of West Group-Reuters-Thomson publications.

It is now available, in print, on CD-Rom and online via Westlaw™ and WestlawNext™. [Westlaw Database Identifier NJPRAC]

Click here now to order your copy.

Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers’ compensation law and occupational/environmental disease litigation. Over a career spanning more than three decades he has been involved in complex litigation involving thousands of clients challenging the mega-industries of: asbestos, tobacco and lead paint. Gelman is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). He is the former Vice-President of  The Workers Injury Law & Advocacy Group (WILG) and a charter member of The College of Workers' Compensation Lawyers. Jon is a founder of the Nancy R. Gelman Foundation Inc., which seeks to fund innovative research to cure breast cancer. He is also an avid photographer. jon@gelmans.com -www.gelmans.com

The Government Shutdown is a Kick-In-Gut to Workers' Compensation

Workers' Compensation programs will be impacted by a Government shutdown because of both the offset provisions of the Social Security Act and the Medicare Secondary Payer Act (MSP). Even The SMART Act, recently enacted to hopefully establish a more efficient collection process will be derailed.

As the US House of Representatives, under Republican leadership influenced by The Tea Party, likened in Aaron Sorkin's HBO program, The Newsroom, as "The American Taliban," passed legislation to shutdown the US Government this Tuesday, serious concern exists as to the consequences of the shutdown on workers' compensation programs throughout the nation. 

In many States, whether or not a reverse offset exists, it is essential to determine what a claimant's Average Current Earnings (ACE) are to calculate, and reach a final determination of temporary and permanent disability, in a state workers' compensation claim. The access to those numbers will become difficult to obtain because of administrative rollbacks, and anticipated further delays in claims processing. Even though Federal payments will be forthcoming under protective measures, the claims process will be derailed.

Likewise, the process to obtain conditional payment information will be delayed or non-existent. The provisions of the Medicare Secondary Payer Act mandating reimbursement to The Center for Medicare and Medicaid Services (CMS) will be put on hold. Similarly, reviews for future medical compromises embodied in the Workers' Compensation Medicare Set-aside Agreements (WCMSA) will be delayed just because of administrative cutbacks in the claims system, including the appeals process.

The recently enacted provisions of The SMART Act. long sought by a coalition of cottage industries, and compensation parties, to the reimbursement process itself, will face its first major challenge to implementation as the Internet web-portable becomes non-functional. Recently proposed final Rules will face delay in implementation as the exchange of comments under the rulemaking process become further delayed in the process of submission and response.

Overall, the workers who most need the system to function, and who waited the longest time, in waiting for final adjudication of their claims, will become victim of the process. No matter how long the shutdown extends, the Federal action will highlight the continued deterioration of the complex patchwork process know as workers' compensation. The now antiquated, and once expeditious and remedial insurance system, will have suffered yet another devastating blow in its attempt to survive in a radically changing economic and socio-political system.
....

Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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CMS Comments: "No Comment" on The Forthcoming Smart Act Regulations

CMS is withholding comment about The Smart Act regulations for now. See the transcript below:

"CENTERS FOR MEDICARE & MEDICAID SERVICES
Moderator: John Albert
07-25-13/1:00 p.m. ET
Confirmation # 11907630
Page 14

That’s all I have on that right now. Some of the areas sort of more high 
arching as oppose to just a single question. As we received a number of 
questions about the SMART Act and how it affects this process and what 
regulations are out there.

In terms of regulations, when CMS is doing an advance notice of proposed 
rulemaking, an ANPRM or NNPRM or final rules or even a federal registered 
notice, we’re not allowed to comment whether we are or are not doing that 
notice or the content of that until there is at least something on the unified 
regulatory agenda at which point we still can’t tell you specifics but we can 
tell you that document is in progress. The site you need to go to for that 
generally is – if I can find the right thing – is www.reginfo.gov. And what 
that – you can also find it simply by Googling the Unified Regulatory Agenda 
and then the term CMS. But what it lives on that, it won’t – and want – those 
are ones that are in our process – officially in the process.

And right now, the requirement in the SMART Act that an ANPRM be done 
with respect to civil money penalties under Section 111 is on that Regulatory 
Agenda. I believe there are at least two other MSP related regulations either –
whether it’s under something in the final rule, a pre rule or proposed rule. But 
you can check that out and that’s a site that you may want to monitor every so 
often if you have a question about whether or not we’re doing a particular 
regulation.

Similar to that, because I mentioned the SMART Act before, is a lot of the 
questions were asking specific facts about our specific actions we planned to 
take with respect to what’s in the SMART Act. As we make any changes or 
do anything related to the SMART Act, we – anytime instructions are going to 
change, we will give appropriate notice. At this point, there’s nothing that we 
have changed in our instructions that affects you at this time. So, we won’t be 
addressing any specific SMART Act questions.

Last but not least, as we have said in most of these calls, the extent we 
received questions that are related to MSP recoveries in the mailbox, those are 
outside the scope of this call. And we won’t be addressing those.

Read more about The Smart Act

Workers' Compensation: The SMART Act and Workers' Compensation

May 09, 2013

The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and ...

http://workers-compensation.blogspot.com/

It's Not "If", It's "When" - California - Workers' Compensation

Feb 01, 2013

Enactment of The SMART Act, the reality of which is that the regulations will eat up the statute, and also their lunch. I plan to write more on The SMART Act in the coming weeks. Maybe that wasn't so smart after all for the ...

http://workers-compensation.blogspot.com/

Workers' Compensation: Medicare Conditional Repayment ...

Jan 14, 2013

In additional to commenting on the new Strengthening Medicare And Repaying Taxpayers (SMART) Act, Judge Hickey will be discussing how the interaction of the workers' compensation claims process integrates with this ...

http://workers-compensation.blogspot.com/

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