Chevron's Fall: Medicare Set-Asides Face Legal Shake-Up

The recent U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo (2024), which overturned the Chevron doctrine established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., is likely to have significant impacts on how the Centers for Medicare & Medicaid Services (CMS) operates regarding the Medicare Secondary Payer (MSP) Act, including conditional payments and Medicare Set-Aside (MSA) agreements. 

State Law Does Not Preempt State Medical Authorization Criteria

The 5th Circuit Court of Appeals has ruled that The Texas Workers' Compensation Act does not preempt the Medicare Secondary Payer (MSP) 42 U.S.C.§ 1395y(b), as to the state statute's mandated requirement to obtain preauthorization for medical care. 

The Court ruled that.  "...Congress explicitly prohibited workers' compensation and other insurers from subordinating their payment obligations to those of Medicare." "....Congress intended the MSP to complement, not supplant, state workers' compensation rules."

Caldera v. Insurance Co, of the State of PA, ____ F.3rd ___, 2013 WL 1975660 C.A.5 (Tex), 2013. Decided May 14, 2013.

Federal Court Enjoins CMS From MSP Recovery Procedures

A US District Court Judge in Arizona has certified a putative class, composed of a nationwide class of Medicare recipients challenging the recovery procedures utilized by The Centers for Medicare and Medicaid Services (CMS). The Court also issued an Order enjoining CMS from certain collection activities.

This follows a broad discovery ordered issued by the Court a year ago. Haro v. Sebelius, 2010 WL 1452942 (A. Ariz.) CV 09-134 TUC DCB, Decided April 12, 2010.The plaintiffs were permitted discovery beyond the administrative record. The class action is challenging the recovery procedures of CMS under the Medicare Secondary Payer Act (MSP). The discovery permitted will included depositions and expert evidence .

The Court Order enjoins CMS from certain actions:

"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's MSP claim or a waiver request, exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding payment of a MSP reimbursement claim with threats of commencing collection actions before there is a resolution of an appeal or waiver request. 

"IT IS FURTHER ORDERED that the Defendant's demand that attorneys withhold liability proceeds from clients pending payment of amounts claimed by the Defendant as MSP reimbursement exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding that attorneys withhold liability proceeds from their clients pending payment of disputed MSP reimbursement claims.

In reaching its decision to allow discovery, the Court held that the putative class, that is challenging the recovery methods of Medicare, is permitted to extend discovery beyond the limited administrative record action without the necessity of the exhaustion of administrative remedies since constitutional and due process were collateral to any individual claim.

The issues reviewed by the court were:
"1) whether Defendant [CMS] can require prepayment of an MSP recovery claim before the correct amount is determined through the administrative appeal procedures, and
2) whether Defendant [CMS] can make plaintiffs' attorneys financially responsible if they do not hold or immediately turn over to the Defendant [CMS] their clients' litigation proceeds.

These questions involve a due process analysis, which consists of a three part balancing test:
1) the private interest affected;
2) the risk of erroneous deprivation and probable value of additional safeguards, and
3) the government or public interest in current procedures. "

Haro v. Sebelius, (A. Ariz.) CV 09-134 TUC DCB

Click here for Court Order entered May 5, 2011.

Related articles

• Industry Coalition Wants to Cut CMS Conditional Payments (workers-compensation.blogspot.com)
• Proposed CMS Legislation Cannot be Resuscitated Following Wall Street Bailout (workers-compensation.blogspot.com)
• Insurance Industry Again Offers MSP Legislation That Would Discourage Workers' Compensation Periodic Payments (workers-compensation.blogspot.com)
• Medicare Secondary Payment Interest Calculation Tool Updated(workers-compensation.blogspot.com)
• Common Themes, The Green Mountain System & Newt Gingrich (workers-compensation.blogspot.com)

U.S. Halts Effort to Collect Old Social Security Debts

Today's post was shared by The New York Times and comes from www.nytimes.com

WASHINGTON — The Social Security Administration said Monday that it would stop trying to collect taxpayers’ debts that were more than 10 years old.  The statement came after a Washington Post article revealed that the Treasury had started intercepting the federal and state tax refunds of debtors’ children — even if the debts were decades old. The debts stem from overpayments by Social Security that the agency had been trying to recoup even if the original recipients had died.  “I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older,” Carolyn W. Colvin, the acting commissioner of Social Security, said in a statement.  Ms. Colvin said the effort would stop until the agency completed a thorough review of its “responsibility and discretion” to collect any debts to the government.  A revision to the Farm Bill passed in 2008 lifted the statute of limitations “applicable to collection of debt by administrative offset.” That allowed the authorities to withhold the tax refunds of 400,000 people who had relatives with debts to Social Security, The Post reported. Some of the debts were incurred as long ago as the mid-20th century, The Post said, and the taxpayers whose refunds were being intercepted did not know that their relatives had been overpaid or owed any money.  The actions by the Social Security...

[Click here to see the rest of this post]


Related Articles:
CMS Takes a New Direction in the Proposed MSP Appeal ...
Jan 06, 2014
The Centers for Medicare and Medicaid services (CMS) has proposed rules for the Medicare Secondary Payer (MSP) appeals process that will target the “applicable plan” as the primary responsible party for recovery.
http://workers-compensation.blogspot.com/
Federal Court Enjoins CMS From MSP Recovery Procedures
May 18, 2011
"IT IS FURTHER ORDERED that the Defendant's demand that attorneys withhold liability proceeds from clients pending payment of amounts claimed by the Defendant as MSP reimbursement exceeds her authority under the ...
http://workers-compensation.blogspot.com/
US Supreme Court Asked to Review MSP Preemption Issue
Aug 22, 2013
Medicare is not required to abide by a stipulated order of allocation of benefits in a liability case when seeking reimbursement under the Medicare Secondary Payer Act (MSP). Also, the New Jersey Collateral Source Statute .
http://workers-compensation.blogspot.com/
Workers' Compensation: CMS Publishes Rules to MSP ...
Sep 23, 2013
CMS Publishes Rules to MSP Payments Under the SMART Act. Medicare has published proposed Rules to governor obtaining information concerning the conditional payments as required by the recently implemented ...
http://workers-compensation.blogspot.com/

Found on

US Supreme Court Asked to Review MSP Preemption Issue

The US Supreme Court has been asked to review a claim on behalf of an injured worker who asserts that the Medicare Secondary Payer Act did not preempt State law (i.e.. Texas) that required a Workers' Compensation claimant to obtain preauthorization from relevant insurance carriers before incurring certain medical expenses. The Fifth Circuit Court of Appeals held that Medicare's conditional payment for a workers surgeries did not render the  state law mandate for  preauthorization requirements "moot."

A Writ of Certiorari was filed with the US Supreme Court on Aug. 8, 2012 and a response is due September 11, 2013 

Guadalupe Caldera v. Insurance Company of the State of Pennsylvania, US Supreme Court Docket No. 12-40192. Case below, 716 F 3d 861, Docket No, 12-40192, 5th Cir Ct Appeals, Decided May 14, 2013.

….

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.

Legislation Goes to President Obama on CMS Condition Payment Procedures

The US House (H.R. 1845) and US Senate has passed legislation to modify procedures for processing conditional payments under the Medicare (S. 1718) Secondary Payer Act. It establishes parameters for repording, processing and appealing issues concerning conditional payments.

Under the proposed legislation time periods for reporting by parties to CMS (The Center for Medeicare and Medicaid Services) are eased, penalities for insurance carriers are reduced, and a 3 year statute of limitations is established.

The legislation was merged into another pending bill for medical services and was rushed to a favorable vote in both the House and Senate in the last moments before Christmas.

What remains to be determined are the regulations that will be established to implement the legislation. In the past, such regulations usually set boundries for such legislation and may in the end further complicate and even prolong resolution of the issues.

Read more about "The Medicare Secondary Payer Act" and workers' compensation

Workers' Compensation: US Supreme Court Denies CMS-MSP ...

Oct 01, 2012

US Supreme Court Denies CMS-MSP Case - Hadden. 2012 WL 1106757. Supreme Court of the United States. HADDEN, VERNON V. UNITED STATES. No. 11-1197.Oct. 1, 2012. Opinion. The petition for writ of certiorari is ...

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

Workers' Compensation: CMS/MSP Requires Deceased Beneficiary ...

Apr 03, 2009

CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...

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

Federal Court Enjoins CMS From MSP Recovery Procedures

May 18, 2011

"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's ...

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

Workers' Compensation: Seeking a Waiver of CMS/MSP ...

Dec 23, 2008

A formal process exits to obtain a waiver of an Overpayment Recovery request from The Center for Medicare and Medicaid Services [CMS]. If SSA advises you or your client that it has made an overpayment, ie. Medicare ...

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

Related articles

• Workers' Compensation May Indeed Fall Off the Fiscal Cliff
• US Supreme Court Hears Oral Argument on Workplace Harassment Case
• Why Doctors Prescribe Opioids to Known Opioid Abusers - NEJM
• Federal court denies motion to add Medicare secondary reimbursement claims to a pending class action

Class Action by Medicare Advantage Beneficiares Dismissed By Federal Court

A federal class action, by a group of plaintiffs who alleged that they were a class of Medicare-eligible individuals enrolled in a Medicare Advantage plan, and received benefits under part C of the Medicare program, was dismissed by a federal court under the preemption doctrine. In an action removed to Federal court, the plaintiffs sought to bring a class action in state court alleging that New York state law applied regarding reimbursement for for monetary settlements from third-party tortfeasors.

The court ruled that the interpretation of the secondary payer provision of Medicare part C, 42 USC section 1395W-22 (a)(4), preempted any state law provisions.

Meek-Horton v. Trover Solutions, Inc., No. 11 CV 6054(RPP), 2012 WL 6699776, (SD-NY 2012) Decided December 26, 2012

Read more about "The Medicare Secondary Payer Act" and workers' compensation

Workers' Compensation: US Supreme Court Denies CMS-MSP ...

Oct 01, 2012

US Supreme Court Denies CMS-MSP Case - Hadden. 2012 WL 1106757. Supreme Court of the United States. HADDEN, VERNON V. UNITED STATES. No. 11-1197.Oct. 1, 2012. Opinion. The petition for writ of certiorari is ...

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

Workers' Compensation: Legislation Goes to President Obama on ...

Dec 28, 2012

CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...

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

Workers' Compensation: CMS/MSP Requires Deceased Beneficiary ...

Apr 03, 2009

CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...

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

Federal Court Enjoins CMS From MSP Recovery Procedures

May 18, 2011

"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's ...

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

Related articles

• Legislation Goes to President Obama on CMS Condition Payment Procedures
• Federal court denies motion to add Medicare secondary reimbursement claims to a pending class action
• Workers' Compensation May Indeed Fall Off the Fiscal Cliff
• RICO Case Against Wal-Mart & CMI Settles for $8 Million

New CMS Policy Announced: Asbestos Exposure, Ingestion, and Implantation Issues and December 5, 1980

The Centers for Medicare & Medicaid Services has consistently applied the Medicare Secondary Payer (MSP) provision for liability insurance (including self-insurance) effective 12/5/1980. As a matter of policy, Medicare does not assert a MSP liability insurance based recovery claim against settlements, judgments, awards, or other payments, where the date of incident (DOI) occurred before 12/5/1980.

When a case involves continued exposure to an environmental hazard, or continued ingestion of a particular substance, Medicare focuses on the date of last exposure or ingestion for purposes of determining whether the exposure or ingestion occurred on or after 12/5/1980. Similarly, in cases involving ruptured implants that allegedly led to a toxic exposure, the exposure guidance or date of last exposure is used. For non-ruptured implanted medical devices, Medicare focuses on the date the implant was removed. (Note: The term “exposure” refers to the claimant’s actual physical exposure to the alleged environmental toxin, not the defendant’s legal exposure to liability.)

In the following situations, Medicare will assert a recovery claim against settlements, judgments, awards, or other payments, and the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP mandatory reporting rules must be followed:

• Exposure, ingestion, or the alleged effects of an implant on or after 12/5/1980 is claimed, released, or effectively released.

• A specified length of exposure or ingestion is required in order for the claimant to obtain the settlement, judgment, award, or other payment, and the claimant’s date of first exposure plus the specified length of time in the settlement, judgment, award or other payment equals a date on or after 12/5/1980. This also applies to implanted medical devices.

• A requirement of the settlement, judgment, award, or other payment is that the claimant was exposed to, or ingested, a substance on or after 12/5/1980. This rule also applies if the settlement, judgment, award, or other payment depends on an implant that was never removed or was removed on or after 12/5/1980.

When ALL of the following criteria are met, Medicare will not assert a recovery claim against a liability insurance (including self-insurance) settlement, judgment, award, or other payment; and MMSEA Section 111 MSP reporting is not required. (Note: Where multiple defendants are involved, the claimant must meet all of these criteria for each individual defendant in order for a settlement, judgment, award, or other payment from that defendant to be exempt from a potential
MSP recovery claim and MMSEA Section 111 reporting):

•All exposure or ingestion ended, or the implant was removed before 12/5/1980; and

•Exposure, ingestion, or an implant on or after 12/5/1980 has not been claimed and/or specifically released; and,

•There is either no release for the exposure, ingestion, or an implant on or after 12/5/1980; or where there is such a release, it is a broad general release (rather than a specific release), which effectively releases exposure or ingestion on or after 12/5/1980. The rule also applies if the broad general release involves an implant.

For Specific Examples Click Here To Read the CMS Memo

REPORTING REMINDER:

Information related to the MMSEA Section 111 MSP reporting requirements can be found at
www.cms.hhs.gov/MandatoryInsRep. When reporting a potential settlement, judgment, award, or other payment related to exposure, ingestion, or implantation, the date of first exposure/date of first ingestion/date of implantation is the date that MUST be reported as the DOI. This is true for purposes of individual self-identification of a pending claim to the Centers for Medicare & Medicaid Services’ Coordination of Benefits Contractor, as well as for MMSEA Section 111 reporting.
Related articles

• CMS Announced Status Update and Future Changes (workers-compensation.blogspot.com)
• Workers' Compensation Medicare Set-Aside Web Portal (WCMSAP) Webinar (workers-compensation.blogspot.com)
• Nebraska Law Would Deny Disability and Death Payments to First Responders in a 9/11-Type Event (workers-compensation.blogspot.com)
• The Setoff Nightmare: The Pension Well Runs Dry (workers-compensation.blogspot.com)
• Census of Fatal Occupational Injuries Summary, 2010 (workers-compensation.blogspot.com)
• Qui Tam Action for MSP Results in Costs to Plaintiff (workers-compensation.blogspot.com)

More CMS Resources: 

Check out our Blog, click here.

Check our our Website, click here.

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.

Industry Coalition Wants to Cut CMS Conditional Payments

A group of about 50 employers, insurance carriers and vendors have formed a coalition to endorse legislation  (H.R.1063) introduced this week that would ease reporting requirements and reimbursement procedures of the Centers for Medicare and Medicaid (CMS). The organization, the Medicare Advocacy Recovery Group [MARC],  contends that the proposed legislation will:

• "Empowering Medicare to provide settling parties with the amount of their MSP repayment obligation during the settlement process, will allow taxpayers to settle quicker, and repay the Medicare Trust Fund faster.
• "MSP Reform will provide a more affordable and less intrusive MSP system that protects beneficiaries and the Medicare Trust Fund, but does not waste limited judicial and other resources or needlessly confuse parties trying to settle a claim resulting from an injury to a beneficiary. 
• "MSP Reform will also eliminate the required use of Social Security Numbers (SSNs) and Health Insurance Claim Numbers (HICNs) in the reporting process, create a basic right of appeal for all parties to resolve a CMS MSP determination, clarify the statute of limitations, and require the CMS Actuary to determine a threshold below which the recoveries are so small it makes no sense to apply the complex MSP laws. 

Theoretically it sounds like the change would create a more efficient system to establish: time limits for claim reimbursement; a statute of limitations for liability (3 years); an avenue for redress directly to the judicial system; and a threshold amount for reimbursement. However, the proposal would actually defeat the basic philosophy of the workers' compensation act. 

The convoluted logic of the employer/insurance group just makes no sense. It is like saying that I didn't bother buying enough postage on a timely basis so I will just mail my letter at half-price. The universal legislative intent of workers' compensation act mandates that the employer is responsible for medical care of its injured workers. The insurance industry has tried other gimmicks  before to continue its long history of cost shifting, and those have rightly failed as Congress wouldn't buy into them.

While employers and insurance carriers delay and deny compensation benefits, shifting the cost to the taxpayers through depletion of the Medicare system, is both offensive and repugnant. If the coalition wants to ride the carousel of "it's not how long, but how much," in doling out benefits, then they should not blame CMS for delays and penalties, caused by the coalition's own failure to report on a timely basis in the first place.

Related articles

• Proposed CMS Legislation Cannot be Resuscitated Following Wall Street Bailout (workers-compensation.blogspot.com)
• Insurance Industry Again Offers MSP Legislation That Would Discourage Workers' Compensation Periodic Payments (workers-compensation.blogspot.com)
• Medicare Secondary Payment Interest Calculation Tool Updated (workers-compensation.blogspot.com)
• Vermont Universal Health Care to Embrace Workers Compensation (workers-compensation.blogspot.com)
• A Nuclear Workers' Compensation Disaster (workers-compensation.blogspot.com)
• Worker's Comp, Walker, and Wisconsin's Wailing (workers-compensation.blogspot.com)
• Montana Targets Workers Compensation to Reduce Deficit Spending (workers-compensation.blogspot.com)

Congress Told CMS Must Continue to Stop Work Comp Cost Shifting

At a House Oversight hearing today it was revealed that over the last decade the Centers for Medicare and Medicaid Service (CMS) has obtained over $50 Billion in reimbursement under the Medicare Secondary Payer Act (MSP). CMS has worked diligently to stop cost shifting from workers' compensation insurance carriers to the US taxpayer. 

Deborah Taylor, Chief Financial Officer and Director, Office of Financial Management Centers for Medicare and Medicaid Services, stated, "Any restrictions on existing MSP rights or recovery processes would adversely affect savings that would otherwise accrue to the Medicare Trust Funds through MSP recovery activities, as well as the $1 billion per year in cost-avoided savings that CMS is able to track. Proposals that would impose mandatory process changes may affect Medicare’s status as a secondary payer or its priority right of recovery, as well as CMS’ ability to prioritize its own workload. These changes may also have the unintended effect of undercutting the underlying intent of the statute, increasing costs, and reducing existing savings. " 

Ms. Taylor concluded by stating that, "...CMS is committed to a transparent MSP process that ensures that beneficiaries receive the care they need, while reducing Medicare payments for claims that are the legal responsibility of a group health plan, NGHP, or other responsible party. We understand that the MSP process can present challenges to all involved in coordination of benefits between Medicare and other payers. We are committed to maintaining a strong line of communication with beneficiaries, insurance and workers’ compensation plans, and other stakeholders on MSP policy in general, as well as the new Section 111 reporting requirements. Additionally, we will look to expand and strengthen our training and education opportunities where possible. CMS looks forward to working with our partners and beneficiaries in the future to preserve the integrity of the Medicare program and secure the Medicare Trust Funds for future generations. We look forward to working with Congress as well on these important goals."

Related Resources

• Medicare Secondary Payer: Process for Situations Involving Non-Group Health Plans, US GAO Study James C. Cosgrove, Director, Health Care - 6.22.11 

Related articles

• Should CMS be A Joint Payee in a Workers Comp Settlement? (workers-compensation.blogspot.com)
• Medicare to Partially Resume Workmens Comp Collection Letters (workers-compensation.blogspot.com)
• CMS Recovery Contractor Publishes New Rights and Responsibilities Letter (workers-compensation.blogspot.com)
• Proposed CMS Legislation Cannot be Resuscitated Following the Wall Street Bailout  (workers-compensation.blogspot.com)
• Industry Coalition Wants to Cut CMS Condition Payments (workers-compensation.blogspot.com)
• Health Reform Coverage for Asbestos Victims Expands (workers-compensation.blogspot.com)

CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim

A Federal District Court in Alabama has declared that the Centers for Medicare and Medicare Services (CMS) is limited to a 6 year statute of limitations in asserting as recovery / reimbursement claims under the Medicare Secondary Payer Act (MSP).

The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.

"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."

The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."

As to the Attorney Defendants, the Court held was based on contract law.

"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."

"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."

The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.

The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.

For over 3 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 work related accident and injuries.

Related Articles:

Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct

CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

CMS Claims No Statute of Limitations May Exist in a Recovery Action

Case Advances Challenging MSP Reimbursement Procedures

CMS Publishes Final Rule for MSP Conditional Payments Via Web Portal

This final rule, effective June 16, 2016,  specifies the process and timeline for expanding CMS' existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).

CMS Announced Status Update and Future Changes

As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:

1) An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is now posted at www.cms.gov/MandatoryInsRep.

2) Policy guidance related to Exposure, Ingestion, and Implantation issues, and December 5, 1980, is now posted at www.cms.gov/MandatoryInsRep and www.cms.gov/COBGeneralInformation.

3) An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at www.cms.gov/MandatoryInsRep.

4) A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician's certification, and its impact on the issue of protecting Medicare's interests with respect to future medicals is now posted at www.cms.gov/COBGeneralInformation.

In addition, on September 30, 2011, the MSPRC will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.

Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at www.MSPRC.info.

Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:

• The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare's claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.

• The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.

• The implementation of a process that provides Medicare's conditional payment amount, prior to settlement in certain situations.

Related articles

• CMS Announces Four Additional Hardship Exemptions from the 2012 Medicare Payment Reduction and Extends the Exemption Deadline (managemypractice.com)
• Workers' Compensation Medicare Set-Aside Web Portal (WCMSAP) Webinar (workers-compensation.blogspot.com)
• Qui Tam Action for MSP Results in Costs to Plaintiff (workers-compensation.blogspot.com)
• Nebraska Law Would Deny Disability and Death Payments to First Responders in a 9/11-Type Event (workers-compensation.blogspot.com)

Case Advances Challenging MSP Reimbursement Procedures

A Federal Court Judge has permitted discovery to go forward in a potential class action challenging the reimbursement procedures of the U.S. Department of Health and Human Services (HHS) being utilized under the authority of the Medicare Secondary Payer Act (MSP).

The case pending in Arizona questions the authority of the HHS to seek reimbursement in liability claims of conditional payments paid by the Federal government. The plaintiffs are seeking declaratory and injective relief from the HHS procedures. They allege that the HHS has exceeded its authority under the MSP and that the plaintiffs have been denied due process.

The claim challenges the requirement that reimbursement be made within 60, in advance of an appeal or waiver. The case also alleges that the reimbursement claims asserted by HHS are in excess of the actual amount conditionally expended and object to the interest charges on the erroneous amounts asserted.

A motion for class action certification was filed on March4, 2010. Determination of that issue has been held in abeyance as discovery proceeds.

The issues  the Court will determine in this case have been identified as follows:

1.Whether the HHS can require prepayment of an MSP recovery claim before the correct amount is determined through administrative appeal procedures; and

2. Whether the HHS can make plaintiff’s attorneys financially responsible if they do not hold or immediately tender the litigation proceeds.

The Court, in permitting discovery to go forward against the HHS, determined the need to ascertain, not only as to the specific plaintiffs, limited in the Administrative Record, but generally:

·    -----The frequency the appeal process is actually utilized and whether it is burdensome to beneficiaries; and

·    -----The error rate and whether that error rate is extraordinary high in MSP recovery claims; and

·    -----Whether there is a need for current lack of procedural protections for beneficiaries and their attorneys.

Hard v. Sebelius, No. cv 09-134 TUC DCB, 2010 WL 1452932 (D. Ariz), Decided April 12, 1020.

Click here to read more about Medicare Secondary Payer Act and workers' compensation.

Medicare Recovery Made Simple

Navigating the Medicare recovery system just became a whole lot easier with the deployment of the new website launched by the new national MSP Recovery Contractor (MSPRC). The Centers for Medicare & Medicaid Services (CMS) has consolidated all of the functions and workloads related to Medicare Secondary Payer (MSP) post-payment recoveries into one MSP recovery contract.

The contract for the new national MSP Recovery Contractor (MSPRC) was implemented on October 2, 2006. The MSPRC has taken over new MSP recovery cases and most existing cases. Chickasaw Nation Industries, Inc. (CNI) is the national contractor. CNI has received several prestigious national awards including: Top Small Businesses, ranked #23 by Federal Times 2006; U.S. Department of Commerce Minority Business Development Agency National Minority Small Business of the Year SBA Administrator’s “Award for Excellence” 2005; and American Indian-Owned Businesses, ranked #2 by New Mexico Business Weekly 2004.

The website explains in detail the procedures and forms utilized by CNI to contact the parties and implement the procedures that it utilizes for recovery in: Workers’ Compensation, Liability, Med-Pay, PIP and Group Health Plan recoveries.

The new website site is a major step forward in assisting all parties in the recovery process.

9th Circuit Vacates MSP Injunction Against CMS for Medicare Reimbursement

The 9th Circuit Court of Appeals has vacated a Federal District Court Order enjoying CMS from seeking reimbursement for Medicare Conditional Payments under the Medicare Secondary Payer Act (MSP).

The Court held that it lacked jurisdiction:

"... we conclude that the
beneficiaries' claim was not adequately presented to the
agency at the administrative level and therefore the district
court lacked subject matter jurisdiction pursuant to 42 U.S.C.§ 405(g) .

***

" Federal question jurisdiction does not extend to most
claims arising under the Medicare Act. The Medicare Act
incorporates 42 U.S .C. § 405(h) , which provides:
No findings of fact or decision of the
[Secretary] ... shall be reviewed by
any person, tribunal, or governmental
agency except as herein provided.
No action against the United States,
the [Secretary] ..., or any officer or
employee thereof shall be brought
under section 1331  ... of title 28  torecover on any claim arising under this
subchapter.
42 U.S.C. § 405(h) ; 42 U.S.C. § 1395ii .

****

 "We decline to adopt the extraordinarily broad reading of
Eldridge  that the beneficiaries invite. We conclude that the
named plaintiffs' reimbursement disputes did not provide an
opportunity for the Secretary to consider the claim that her
interpretation of the secondary payer provisions exceeded
her authority. Their requests for redetermination of their
respective amounts of reimbursement did not constitute
presentment of their policy challenge.

***

" We conclude that the beneficiaries' claim was
not presented to the agency. Because presentment is a
jurisdictional requirement under § 405(g) , the district court
lacked subject matter jurisdiction over the beneficiaries'
claim. 

Haro v Sebelius, ___F.3d____, No. 11-16606, 2013 WL 4734032, Decided Sept.4, 2013.

Read prior posting about this case:

Federal Court Enjoins CMS From MSP Recovery Procedures

May 18, 2011

Haro v. Sebelius, 2010 WL 1452942 (A. Ariz.) CV 09-134 TUC DCB, Decided April 12, 2010.The plaintiffs were permitted discovery beyond the administrative record. The class action is challenging the recovery procedures of ...

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

Workers' Compensation: Halted: Medicare Secondary Payer ...

May 25, 2011

The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made." This follows a recent US District Court ruling enjoining CMS's collection procedures. Haro v.

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

….

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.

Related articles

• US Supreme Court Asked to Review MSP Preemption Issue (workers-compensation.blogspot.com)
• CMS Comments: "No Comment" on The Forthcoming Smart Act Regulations (workers-compensation.blogspot.com)
• Liability Claim Collateral SOurce Payments Subject to MSP (workers-compensation.blogspot.com)
• No Shopping Zone: Medicare Is Not Part Of New Insurance Marketplaces (workers-compensation.blogspot.com)
• The 10 Highest Medical Cost Jurisdictions for Medicare (workers-compensation.blogspot.com)
• Who Is Paying the Bills for Occupational Illnesses and Disease? (workers-compensation.blogspot.com)
• Has the Internet Raised or Lowered Healthcare Costs? (workers-compensation.blogspot.com)

Comments Medicare Program: Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal

Comments submitted concerning the Medicare Program: Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal are now available for review.

Summary

This interim final rule with comment period specifies the process and timeline for expanding CMS' existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act). The interim final rule specifies a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS' MSP conditional payment amounts and claims detail information via the MSP Web portal. It also requires that we add functionality to the existing MSP Web portal that permits users to: notify us that the specified case is approaching settlement; obtain time and date stamped final conditional payment summary forms and amounts before reaching settlement; and ensure that relatedness disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.

Docket ID:CMS-2013-0199

Topic(s):Kidney Diseases, Medicare, Physician Referral, Reporting and Recordkeeping Requirements

Document Type:Rule

Received Date:Sep 20, 2013

Start-End Page:57800 - 57806

Comment Start Date:Sep 20, 2013

Comment Due Date:Nov 19, 2013

Comments submitted included those of:

-Progressive Medical

-AAJ

-Property Casualty Insurers of America

-Crowe Paradis

-Franco Signor

-MARC

-CA State Compensation Fund

-NAMSAP

-DRI

-Allsup

-RIMS

-FCC

-Garretson Resolution Group

-AIA

-UWC

Click here to view all contents individually.

Found on

Related articles

• Changes to the Medicare Physician Fee Schedule for Calendar Year 2014 (workers-compensation.blogspot.com)
• Senators Press Medicare for Answers on Drug Program (workers-compensation.blogspot.com)
• Settling a Workers' Compensation Claim - Future Medicals and Medicare (workers-compensation.blogspot.com)
• Improving Value in Medicare with an SGR Fix (workers-compensation.blogspot.com)
• Medicare's Failure to Track Doctors Wastes Billions on Name-Brand Drugs (workers-compensation.blogspot.com)
• Congress Moves Closer To Changing How Medicare Pays Doctors (workers-compensation.blogspot.com)
• Rehospitalization Rates Fell In First Year Of Medicare Penalties (workers-compensation.blogspot.com)

Qui Tam Action for MSP Results in Costs to Plaintiff

A Federal court ruled that a plaintiff acted with an improper purpose and in bad faith by filing seven different putative qui tam actions against various health care providers under the Medicare Secondary payer Act (MSP). The Federal Court imposed sanctions against plaintiff pursuant to court's inherent power.

The Court reasoned that there was no legal support for plaintiff's claim that MSP was a qui tam statute, Court of Appeals had previously determined that plaintiff's claims were “utterly frivolous” and “unreasonable and vexatious,” and plaintiff had already filed dozens of almost identical cases across the country with similar results.

Stalley ex rel. U.S. v. Mountain States Health Alliance, 644 F.3d 349, C.A.6 (Tenn.), 2011, decided July 08, 2011

Related articles

• Federal Court Enjoins CMS From MSP Recovery Procedures (workers-compensation.blogspot.com)
• Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim (workers-compensation.blogspot.com)
• US Supreme Court Advances the Rights of Injured (workers-compensation.blogspot.com)
• Congress Told CMS Must Continue to Stop Work Comp Cost Shifting (workers-compensation.blogspot.com)
• CMS Recovery Contractor Publishes New Rights and Responsibilities Letter (workers-compensation.blogspot.com)
• Halted: Medicare Secondary Payer Recovery Contractor Demand Letters (workers-compensation.blogspot.com)