CMS Recovery Contractor Publishes New Rights and Responsibilities Letter

The Centers for Medicare and Medicaid Services (CMS) has now posted its newly revised Rights and Responsibilities letter. The letter complies with the Court's Order in Haro v. Sebelius which restrict the application of interest while an appeal is pending. The letter no longer demands that an attorney withhold settlement proceeds from a case.

CMS employs outside contractors to collect conditional payments that Medicare has paid and for which it is only secondarily responsible

"The Medicare Secondary Payer Recovery Contractor (MSPRC) protects the Medicare trust fund by recovering payments Medicare made when another entity had primary payment responsibility. The MSPRC accomplishes these goals under the authority of the Medicare Secondary Payer (MSP) Act. The MSPRC identifies and recovers Medicare payments that should have been paid by another entity as the primary payer either under a Group Health Plan (GHP) or as part of a Non-Group Health Plan (NGHP) claim which includes, but is not limited to Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers' Compensation. The MSPRC does not pursue supplier, physician, or other provider recovery'." 

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 occupational accidents and illnesses.


Related articles

• Medicare to Partially Resume Workmens Comp Collection Letters (workers-compensation.blogspot.com)
• Halted: Medicare Secondary Payer Recovery Contractor Demand Letters (workers-compensation.blogspot.com)
• Should CMS be A Joint Payee in a Workers Comp Settlement? (workers-compensation.blogspot.com)
• 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)
• CMS Announces Review is Only a Recommended Process for Set-Aside Agreements (workers-compensation.blogspot.com)

In the name of privacy...

After the massive US IRS data breach announcement this week, CMS has posted that it is establishing a more secure system for access to Medicare Secondary Payer Information. This is pretty consistent with President Obama's announcement to take Social Security Numbers off of Medicare Cards. 

The real issue is that while workers' compensation records are supposedly confidential in State systems, the Federal government has consistently neglected to insure that privacy whether be: medical records under HIPPA; by integration of  state's motor vehicle or workers' compensation records utilizing Social Security Numbers, or by Medicare Secondary Payer Act electronic data systems. 

Additionally, the Federal government will probably be mandating the reporting workers' compensation payment information, in Federal Income Returns shortly. The batting record of the IRS this week on privacy has been dismal.

Time will only tell whether workers' compensation data can actually be shielded from intruders. 

CMS announced today:

"As part of the Strengthening Medicare and Repaying Taxpayers (SMART) Act, the Centers for Medicare & Medicaid Services (CMS) will be implementing optional MFA services on the MSPRP. MFA is the use of two or more different authentication factors to verify the identity of an end user. Verified users will have access to view unmasked claim data on the Portal.

"Non debtors will still need to have a Verified Proof of Representation or Consent to Release authorization to perform actions on cases. Please note that MFA and the associated identity proofing process will be optional to portal users. Portal users may continue to use the portal without going through the MFA process but will not have the benefit of viewing un-masked data.

"MFA is scheduled to be available beginning on July 13, 2015. Updated user guides and training materials will be available on CMS.gov and within the portal upon implementation.

Related articles

• 2016 Budget Proposal Would Require Reporting of Workers' Compensation Benefits to Social Security Administration (workers-compensation.blogspot.com)
• Trickle Down Stagnation (workers-compensation.blogspot.com)
• CMS Comments: "No Comment" on The Forthcoming Smart Act Regulations (workers-compensation.blogspot.com)
• CMS Posts Sample Notice To Beneficiaries Regarding Appeal Rights (workers-compensation.blogspot.com)
• On-Demand Labor - Is Workers' Compensation Ready for Flex-Time Employment? (workers-compensation.blogspot.com)
• Is The Reserve Offset Heading for Extinction? (workers-compensation.blogspot.com)
• Coordination of Benefits and Non-Group Health Plan Recovery Transition (workers-compensation.blogspot.com)

CMS Postpones Production Date for Mandatory Reporting

CMS has postponed first production date until January 1, 2011:
"CMS advises all NGHP RREs that the date for first production NGHP Input Files is changed from April 1, 2010 to January 1, 2011, effective immediately.

• NGHP File data exchange testing will continue.  All NGHP RREs should now be registered with the COBC, and either in or preparing for file testing status.  NGHP file data exchange testing may continue during 2010, as needed.
• All NGHP file data exchange testing will be completed by December 31, 2010.  NGHP RREs that have completed file data exchange testing at any time are encouraged to proceed to production file data exchange status.

During the week of February 22, on this Website CMS will post the next version of the "Section 111 NGHP User Guide" and a number of Alerts relating to particular NGHP policy issues.
Also during the week of February 22, on this Website CMS will post an alert for NGHP RREs describing the steps those RREs can take to assure their ongoing compliance with the Section 111 reporting requirements."


Click here to read more about CMS and workers' compensation.

CMS Publishes Memo on Pricing Future Prescription Drug Treatment

The Centers for Medicare & Medicaid Services' (CMS) has published a memorandum outlining the methodology of pricing future prescription drug treatment costs/expenses in Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) proposals.

"The CMS will begin independently pricing future prescription drug treatment costs/expenses in WCMSA proposals beginning June 1, 2009. Effective with complete WCMSA submissions received by CMS’ Coordination of Benefits (COB) Contractor on or after June 1, 2009, where the WC related injury warrant(s) the need of prescription drugs for the ongoing treatment of the WC related injury, CMS’ independent pricing of the prescription drug amount will be calculated and priced using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals. "

Look Who Is Prescribing What

As part of the Administration’s goals of better, care, smarter spending, and healthier people, the Centers for Medicare & Medicaid Services announced the availability of new, privacy-protected data on Medicare Part D prescription drugs prescribed by physicians and other health care professionals in 2013. This data shows which prescription drugs were prescribed to Medicare Part D beneficiaries by which practitioners.

“This transparency will give patients, researchers, and providers access to information that will help shape the future of our nation’s health for the better,” said acting CMS Administrator Andy Slavitt. “Beneficiaries’ personal information is not available; however, it’s important for consumers, their providers, researchers, and other stakeholders to know how many prescription drugs are prescribed and how much they cost the health care system, so that they can better understand how the Medicare Part D program delivers care.”

The new data set contains information from over one million distinct health care providers who collectively prescribed approximately $103 billion in prescription drugs and supplies paid under the Part D program. The data characterizes the individual prescribing patterns of health providers that participate in Medicare Part D for over 3,000 distinct drug products. For each prescriber and drug, the dataset includes the total number of prescriptions that were dispensed, which include original prescriptions and any refills, and the total drug cost paid by beneficiaries, Part D plans, and other sources.

CMS created the new data set using drug claim information submitted by Medicare Advantage Prescription Drug plans and stand-alone Prescription Drug Plans. With this data, it will be possible to conduct a wide array of prescription drug analyses that compare drug use and costs for specific providers, brand versus generic drug prescribing rates, and to make geographic comparisons at the state level.

The Administration has set measurable goals and a timeline to move Medicare toward paying providers based on the quality, rather than the quantity, of care they give patients. This is part of a wide set of initiatives to achieve better care, smarter spending and healthier people through our health care system. Open sharing of data securely, timely and more broadly supports insight and innovation in health care delivery.

Today’s Part D prescriber data availability adds to the unprecedented information previously released on services and procedures provided to Medicare beneficiaries, including hospital charge data on common impatient and outpatient services as well as utilization and payment information for physicians and other healthcare professionals. In addition, under the Qualified Entity (QE) program, CMS releases Medicare data to approved entities for the purposes of producing public performance reports on physicians, hospitals, and other providers. To date, CMS has certified 11 regional QEs and one national QE.

To view a fact sheet on the Medicare Part D prescriber data, visit: http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/Part-D-Prescriber.html

Updated: May 15, 2015

Related articles
How Proposed Part D Changes Are Playing On Capitol Hill (workers-compensation.blogspot.com) 

CMS Defines Further Defines Policy Implementation on Part D Coverage of Benzodiazepines and Barbiturates (workers-compensation.blogspot.com) 

Study: Cancer costs 'skyrocketed' despite drug cuts (workers-compensation.blogspot.com) 

Big Pharma: More corruption reported in the architecture of evidence based medicine (workers-compensation.blogspot.com)

Public Comment Sought on Draft Document for Workplace Tobacco Policies (workers-compensation.blogspot.com)

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)

Proposed CMS Legislation Cannot be Resuscitated Following the Wall Street Bailout

The efforts of the insurance industry to revive the previously fatally ill CMS reform legislation can be declared over and the life support disconnected following the Congressional actions to bailout Wall Street. The bill had been given a bounce, like a dead cat thrown against the ground, by the insurance industry, and some misinformed stakeholders, but economics and public opinion will not support the effort any longer.

The combination of the nationalization of AIG and the need for the US government to raise $700 Billion, makes it extremely doubtful that the Federal government is going to give the insurance industry another break other than to reinforce the country's need to insure banks and their spreadsheets.

CMS made it absolutely clear on a national teleconference on October 1st that it was holding workers’ compensation insurance carriers as sole Responsible Reporting Entities (RRE) and it wasn’t going to let them just walk away and re-delegate responsibility to others. CMS declared that workers’ compensation conditional medical payments remained a “pay and chase” proposition and that CMS was not allowing the responsibility of reporting to be shifted by the insurance industry.

The tightening of governmental scrutiny is now a predominate theme as the socialization of the insurance industry becomes more apparent and the existence of workers' compensation as a State based program becomes ever more threatened. Both sides of the political aisle are now being encouraged to look at insurance programs in a new light and make major adjustments as the economic viability of the country remains threatened. Giving the insurance industry another break by allowing them to shift responsibility back to CMS just isn't on the horizon and the idea can be finally buried.

Should CMS be A Joint Payee in a Workers Comp Settlement?

How to reimburse The Centers for Medicare and Medicaid Services (CMS) is becoming a serious issue under the Medicare Recovery Act (MSP). Commonly know as Allocation Orders, these cases are emerging across the country and the Courts are denying attempts to merge the payments of the plaintiff's with that due to CMS.

In Zaleppa v Seiwell, 2010 PA Super 208, No. 2019 MDA 2009, Decided November 17, 2010, an appellate panel tossed out a request to have CMS named as a co-payee of the proceeds. Likewise, a Federal Court ruled that CMS's name should not appear on the same check as the one going to the plaintiffs ruling that the interests of the two parties were not similar. Bradley v Sebelius, 621 F.3d 1330 (11 Cir Ct Ap 2010) decided September 29, 2010.

Related articles

• Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim (workers-compensation.blogspot.com)
• Halted: Medicare Secondary Payer Recovery Contractor Demand Letters (workers-compensation.blogspot.com)
• Federal Court Enjoins CMS From MSP Recovery Procedures (workers-compensation.blogspot.com)

CMS Publishes the Final Rule for MSP Civil Penalties

The Centers for Medicare and Medicaid Services [CMS] has published a final rule specifying how and when CMS must calculate and impose civil money penalties [CMPs] when non-group health plan [NGHP] responsible reporting entities [RRE] fail to meet their Medicare secondary payer [MSP] reporting obligations. NGHP includes workers’ compensation claims. The final rule also establishes CMP amounts and the circumstances under which CMPs will
not or will not be imposed. The effective date of this final rule is December 11, 2023.

NJ Issues a Procedural Alert for Medicare Elligible Petitioners

The New Jersey Division of Workers' Compensation has issued a procedural alert to attorneys handling claims of Medicare Elligible Petitioners. Peter J. Calderone, Director and Chief Judge of the NJ agency issued a Memorandum in an effort to establish a formalized and smooth transition with the integration of the mandatory reporting requirements to be initiated this year by The Centers for Medicare and Medicaid Services (CMS).

1. "...parties should not send unsigned settlements to CMS";

2. "...settlements signed by a judge which are not based on a transcribed court record would violate our law since judges must find a settled case resolution fair and just on the court record presented";

3. "Up to date Medicare information must be obtained prior to the entry of a signed workers' compensation order that needs final CMS approval";

4. "When a case is settled, the parties can agree on language in the settlement that a party, usually the petitioner, will be responsible for any additional CMS reimbursements. The petitioner is generally identified since only the petitioner can petition CMS for a waiver from additional payments on hardship or equity grounds. We are advised that such waivers when supported are most often granted;" and

5. "As an alternative, the parties can agree in Orders Approving Settlements (but not Section 20 Orders [lump sum payments in lieu of compensation]) and the judge can insert language in judgments that the parties have the right to reopen the case ifthere are additional Medicare reimbursements and a dispute as to which party is responsible for the payment."

The memorandum goes on to caution the parties that if the parties and the Court are uable to agree upon settlement terms, then a trial and judicial resolution will be required.

Fix the Handful of U.S. Hospitals Responsible for Out-of-Control Costs

Today's post was shared by NEJM and comes from blogs.hbr.org

In May 2013, the Centers for Medicare and Medicaid Services (CMS) released CMS Medicare Provider Analysis and Review (MEDPAR) inpatient data that contain discharge information for 100% of Medicare fee-for-service beneficiaries using hospital inpatient services. This data shows what more than 3,200 hospitals in the United States were being paid for the most frequently performed 100 inpatient procedures. The variations were extraordinary. Some hospitals in the New York State were being paid 40 times as much as the world-famous Mayo clinic for some treatments. This kind of variation is understandably a huge cause of concern at a time when health care costs are widely seen to be spinning out of control. Our research suggests, however, that the data contains a silver lining: The bulk of excess costs to CMS and inpatients for all the procedures — a total of $5.3 billion above the average across all hospital by procedure — are highly concentrated in just a small number of hospitals. When we applied the techniques of Six Sigma analysis to the CMS data, we found that just 32 hospitals — less than 1% of the hospitals in the data — accounted for about 25% of the excess accepted charges. (Hospitals determine what they will charge, or bill, for items and services, and CMS then decides how much of that amount is appropriate and will be paid.) A handful of hospitals in New York State accounted for nearly half of them. Add some hospitals in...

[Click here to see the rest of this post]

Found on

CMS Announces Intention to Clarify MSP Recovery Language

CMS has announced it intends to clarify the language in recovery scenarios where occupational exposures occurred prior to the effective date of the Medicare Secondary Payer Act.

Barbara Wright of CMS said at a recent town hall meeting,...

"If all exposure (peaks) before 12/5/80, then it is CMS policy that it will not assert a recovery claim with respect to any liability settlement. And that can depend on -- again I’ll use asbestos as the example. Let’s say that you’re suing five different entities. I’ve seen situations where three of the entities -- all exposure connected with them -- did in fact end before 12/5/80 wherefore at the last one there was some exposure after 12/5/80. We are looking at language that could potentially eliminate reporting when it’s clear that the exposure ended before 12/5/80. "

As CMS ramps up for mandatory insurance carrier reporting, additional town hall conferences have been scheduled.

CMS Rules Out TENS Units for Low Back Pain

"TENS is not reasonable and necessary for the treatment of CLBP under section 1862(a)(1)(A) of the Social Security Act."

The Centers for Medicare and Medicaid (CMS) has issued a ruling that will impact on the payment of proceeds in Workers' Compensation Medicare Set Aside Agreements (WCMSA). CMS has ruled out the use of TENS (Transcutaneous Electrical Nerve Stimulation) units for the treatment of chronic low back pain.


"For those WC [workers' compensation]cases that were not settled prior to June 8, 2012, and where the  WCMSAs proposal includes funding for TENS for CLBP [chronic low back pain] as part of the WCMSA, CMS  will re-review the cases and remove pricing for TENS for CLBP. (Regional Offices shall  obtain from submitters requests for a case re-review, along with a signed statement  indicating a settlement had not occurred prior to June 8, 2012.)"

Case law throughout the country has been divided on whether TENS units should be authorized to cure and relieve low back pain. 

Click here to read: Decision Memo for Transcutaneous Electrical Nerve Stimulation for Chronic Low Back Pain (CAG-00429N)

Click here to read: Impact of the Removal of coverage of Transcutaneous Electrical Nerve 
Stimulation (TENS) Units for Chronic Low Back Pain (CLBP) on Workers’ Compensation Medicare Set-Aide Arrangement (WCMSA) proposals – INFORMATION

.....
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 occupational accidents and illnesses.

Related articles

• CMS and Future Medicals: New Rules Proposed (workers-compensation.blogspot.com)
• The High Price of Drugs: Upscale Pricing By Doctors (workers-compensation.blogspot.com)
• Why Cases Don't Settle in Washington State (workers-compensation.blogspot.com)
• Path to Federalization: A National Workers Compensation System--US Supreme Court Validates (workers-compensation.blogspot.com)

CMS Posts Sample Notice To Beneficiaries Regarding Appeal Rights

CMS has posted the following notice regarding MSP Appeal Rights under the SMART Act. Under the process the the Social Security Beneficiary is only a party of notice and the the direct parties become the Insurance Carrier or Workers' Compensation Entity who initiates the appeal. The process has yet to unfold when an injured workers moves for standing to appear and participate in the process.

On February 27, 2015, the Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing certain provisions of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART ACT). This final rule establishes a formal appeals process for applicable plans (liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans) in situations where the Secretary seeks Medicare Secondary Payer (MSP) recovery directly from an applicable plan. The rule is effective April 28, 2015, and applies to demand letters issued on or after April 28, 2015.

Beneficiaries will be notified in writing if an item or service they received is the subject of an appeal by the insurer or workers’ compensation entity.

A new document titled Appeals Process for Insurers and Workers’ Compensation Entities and Required Notice to Medicare Beneficiaries has been loaded to the downloads section of the What’s New page on the Beneficiary Services section of CMS.gov. The following link can be used to access the main page http://go.cms.gov/beneficiary. Once on the main page click the “What’s New” link in the left side menu and scroll to the bottom of the page. 

Click here to see the sample notification to beneficiary form

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

New WCMSA Reference Guide is Now Available

An updated Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide is now available in the Downloads section found at the bottom of this page.  This version documents the current WCMSA review process and provides more detailed information on the actions performed by the Workers’ Compensation Recovery Contractor (WCRC).  

CMS is currently working on additional enhancements to the WCMSA process. Stakeholders will be notified of these proposed changes prior to implementation. Please continue to monitor the WCMSA website for updates.

The following sections of the Guide have been enhanced or added:

• 9.4.1.1 – Most Frequent Reasons for Development Requests: The five most common omissions as provided by the WCRC.
• 9.4.2  – WCRC Team Background and Resources Used: The expertise of the WCRC reviewers as well as the resources used when reviewing a WCMSA.
• 9.4.3 – WCRC Review Considerations: Examples of the questions and factors that guide the WCRC’s review of WCMSA proposals.  The overarching guidelines used in treatment allocations and pricing is also provided.
• 9.4.4 – Medical Review: A diagram and steps the WCRC follows in its medical review process with a general explanation of documentation requirements.
• 9.4.5 – Medical Review Guidelines: Considerations and examples in specific medical cases and topics.
• 9.4.6.1 – Prescription Drug Review: Details the process the WCRC follows in reviewing prescription medication allocations and the resources that may be used.
• 9.4.6.2 – Pharmacy Guidelines and Conditions: Discusses specific drug usage and pricing considerations.
• 10.1.8 – Pay history added to list of information needed for WCMSA submission.

Click here to read the guide.

Related articles

• CMS Hosting a Town Hall Event for WCMSA (workers-compensation.blogspot.com)
• CMS Defines Further Defines Policy Implementation on Part D Coverage of Benzodiazepines and Barbiturates (workers-compensation.blogspot.com)
• CMS Consolidates Web Portals for Coordination of Benefits & Recovery (workers-compensation.blogspot.com)
• NJ Court Approves Medicare Set-Aside Agreement Lacking CMS Review (workers-compensation.blogspot.com)
• The Government Shutdown is a Kick-In-Gut to Workers' Compensation (workers-compensation.blogspot.com)
• Hospitals May Soon Be Reaching For The Stars (workers-compensation.blogspot.com)

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

Related articles

• Single Payer: State v Federal (workers-compensation.blogspot.com)
• A California Lesson: How to Kill Workers' Compensation Pill By Pill (workers-compensation.blogspot.com)
• High Compensation Medical Costs Raises Concern in New Hampshire (workers-compensation.blogspot.com)
• CMS Posts Sample Notice To Beneficiaries Regarding Appeal Rights (workers-compensation.blogspot.com)

CMS Terminates Voluntary WC Data Match Program

CMS has formally terminated the voluntary WC Data Match program that it instituted several years ago. With the enactment of Section 111 Mandatory Insurance Company reporting the voluntary program afforded to States and Insurance Company has been terminated.

In a letter to those participating CMS stated:

"This voluntary reporting arrangement has now ended. On July 1, 2009, Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (the MMSEA) became effective for Workers’ Compensation insurance coverage. As of that date, the reporting of Workers’ Compensation information in support of Medicare Secondary Payer (MSP) determinations by CMS became mandatory. All existing voluntary reporting arrangements involving Workers’ Compensation programs are now null and void.

"July 1, 2009, is the date Section 111 reporting became effective, but it is not the date that states will begin to report Workers’ Compensation information under the Section 111 requirements. In summary, states that will be reporting Workers’ Compensation data through the Section 111 process are required to register for Section 111 reporting by September 30, 2009. The testing of the electronic data exchange process will start January 1, 2010. The first “production” file exchanges will start April 1, 2010.

"The process for arranging Section 111 reporting, and all the reporting timeline benchmarks that have been established are described in full on the Section 111 Website, www.cms.hhs.gov/mandatoryinsrep . The current version of the “NGHP User Guide” and additional instructions needed to report Workers’ Compensation information are located on the Website’s “Liability Insurance, Self-Insurance, No-Fault Insurance and Workers Compensation (NGHP)” page."

CMS Sets Telephone Conference Call to Discuss Workers' Compensation Medicare Set-aside Portal

The Centers for Medicare & Medicaid Services (CMS) has completed its Pilot Testing of the Workers' Compensation Medicare Set-aside Portal (WCMSAP). The CMS will be conducting a Town Hall conference call on November 29, 2011 from 1:00 to 3:00 pm (EST), to introduce this initiative to submitters of proposed Workers' Compensation Medicare Set-Aside Arrangement (WCMSAs) amounts, and to answer questions regarding the WCMSAP. After the Town Hall conference call, CMS will post the links of the WCMSAP application, and the WCMSAP Computer Base Training (CBT) Modules, on the Workers' Compensation Medicare Set-aside Portal (WCMSAP) section page "Related Links Outside CMS."

Please Note: The call in information for the WCMSAP Town Hall teleconference is:
Call in time: 1pm to 3pm
Call In Line: 1-(800) 603-1774
*Conference ID: 29840615

*Participants must use the Conference ID number to be allowed into the call.

Related articles

• Workers' Compensation Medicare Set-Aside Portal (WCMSAP) (workers-compensation.blogspot.com)
• That Used to Be Comp (workers-compensation.blogspot.com)
• The Setoff Nightmare: The Pension Well Runs Dry (workers-compensation.blogspot.com)
• The Debt Ceiling and Workers Compensation (workers-compensation.blogspot.com)
• It is All The Same Apple (workers-compensation.blogspot.com)
• The Complex World of Workers' Compensation and Pharmaceutical Benefits (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