Announcing the WorkersCompensation.com Best Blog Designees for 2016

WorkersCompensation.com, "the original and largest regulatory and compliance information center available for the workers' compensation industry," has announced the best blog designations for 2016:

"The blogs below were all nominated by citizens of the workers' compensation community. They were judged on several criteria. In addition to objective categories such as age of blog, frequency of posting and website traffic**, they were also assessed by an independent judging panel for content quality, value and timeliness. Designated blog category was determined by people nominating the blog. In the event of multiple nominations, the category selected by the majority of nominators was used.

CMS MSP FInal Conditional Payments Portal To Open

Upcoming Updates to the Medicare Secondary Payer Recovery Portal (MSPRP) Modification for Inclusion of Final Conditional Payment (CP) Process Functionality

As part of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act), the MSPRP will be modified to include Final CP process functionality by January 1, 2016.  This new functionality will permit authorized MSPRP users to notify CMS that a recovery case is 120 days (or less) from an anticipated settlement and request that the recovery case be a part of the Final CP process.

When the Final CP process is requested, any disputes submitted through the MSPRP will be resolved within 11 business days of receipt of the dispute.  Once all disputes have been resolved, and the case is within 3 days of settling, the beneficiary or their authorized representative will be able to request a Final Conditional Payment Amount on the MSPRP.  Once calculated, this amount will remain the Final Conditional Payment Amount as long as:

1. The case is settled within 3 calendar days of requesting the Final Conditional Payment Amount, and
2. Settlement information is submitted through the MSPRP within 30 calendar days of requesting the Final Conditional Payment Amount.

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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 to Speed-Up MSP Collection Practices

The Centers for Medicare and Medicaid Services (CMS) has announced that it intends to speed up its collections practices enforcing the Medicare Secondary Payer Act (MSP). CMS stated that such procedures are mandatory under the Digital Accountability and Transparency Act of 2014 or the DATA Act Public Law No: 113-101 (05/09/2014).

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

CMS Publishes Final Rule for MSP Appeals

Federal Register | Medicare Program; Right of Appeal for Medicare Secondary Payer Determinations Relating to Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation Laws and Plans

High Compensation Medical Costs Raises Concern in New Hampshire

Medical costs now constitute a huge percentage of every workers' compensation claim. A recent editorial published in New Hampshire asserts that soaring and unequal medical costs have broken the workers' compensation system. Today's post is shared from concordmonitor.com/

Lawmakers should make 2014 the last year that doctors and other health care providers are guaranteed payment no matter how much they charge when a worker is injured on the job. The workers’ compensation system is broken.

The state, and the employers who pay into its workers’ compensation fund, have been paying two and three times the going rate for medical services when the patient is a workers’ compensation recipient. On average, surgeons charge 156 percent more, according to a report by the state’s Department of Insurance. Bills for radiology are 107 percent higher, 95 percent higher for occupational therapy and for something as simple as an ice pack, 300 percent more.

The extra paperwork required to document workers’ compensation cases and perhaps the added severity of the average injury, probably explains some of the price difference. But, human nature being what it is, it’s likely that, when the bill has to be paid no matter what the provider charges, the temptation to pad it can be irresistible, especially when providers can rationalize the surcharge by using it to offset underpayments in areas such as Medicare or Medicaid.

Federal Appeals Court Rules State Apportionment Order Not A Bar to Medicare Recovery

A Medicare recipient brought an action against Medicare challenging a determination that she was required to reimburse The Centers for Medicare and Medicaid Services $10,121.51 for conditional medical payments alleging that such recovery was barred by a state court's apportionment order. \

The Court of Appeals, Hardiman, Circuit Judge, held that:

(1) recipient's liability settlement from third-party tortfeasor qualified as a “primary plan” within the meaning of the Medicare as a Secondary Payer Act;

(2) recipient's $90,000 settlement with tortfeasor included her medical expenses, and thus recipient had obligation to reimburse Medicare for $10,121.15 in medical

(3) the New Jersey Collateral Source Statute (NJCSS) did not prevent Medicare from recovering medical expenses as part of her damages in tort suit;

(4) state court's order apportioning settlement proceeds did not bar government from seeking reimbursement for medical expenses;

(5) District Court lacked jurisdiction to adjudicate recipient's unexhausted claim pursuant to “equity and good conscience” exception under Act; and

(6) District Court lacked federal question jurisdiction over due process claim.

"As the ALJ correctly found, the Superior Court's apportionment order was not “on the merits,” and need not be recognized by the agency. A court order is “on the merits” when it is “delivered after the court has heard and evaluated the evidence and the parties' substantive arguments.” Black's Law Dictionary 1199 (9th ed.2009); cf. Greene v. Palakovich, 606 F.3d 85, 98 (3d Cir.2010) (finding, in a criminal case, that “on the merits” means the state court “acted on the substance of [the] claim”), aff'd sub nom. Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011); Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009) (holding that state proceedings occur “on the merits” “when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance”). Here, the state court did not adjudicate any substantive issue in the primary negligence suit. Indeed, in her motion for the order, Taransky clarified that she sought an apportionment not to resolve any outstanding issue in her suit, but “only to the extent necessary to obtain specified documentation relevant to anticipated administrative proceedings with the federal Centers for Medicare and Medicaid Services.” JA at 267. The state court, in effect, rubber stamped her request. Taransky's motion was uncontested, issued pursuant to a stipulation between Taransky and Larchmont, and prepared and submitted by Taransky's counsel for the judge's signature. This order is the antithesis of one made on the merits."

Taransky v Sec of US Dept of HHA, 760 F.3d 307 (3rd Cirt 2014)

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• US Supreme Court Denies CMS-MSP Case - Hadden (workers-compensation.blogspot.com)
• Medicare Takes Bigger Bite Out California Workers Compensation (workers-compensation.blogspot.com)

NGHP Alert Clarifying MSP Criteria for Exposure, Ingestion, and Implantation Cases

CMS on 8/19/14 issues a new Alert "NGHP Alert Clarifying MSP Criteria for Exposure, Ingestion, and Implantation Cases."

For incidents after December 5, 1980 this Alert should be reviewed to determine CMS obligations.

Click here to review the Alert.

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• Annual Reporting of WCMSA Account Expenditures

Third Circuit Court of Appeals Enforces Medicare Conditional Payment Collection

The Third Circuit Court of Appeals ruled that a Medicare recipient could not prevent CMS from recovering conditional payments from a liability settlement by holding that the NJ Collateral Source Statute (NJCSS) did not prevent Medicare from recovering medical expenses as part of her damages in a tort suit and that the state court's oder apportioning settlement proceeds did not bar the Federal government from seeking reimbursement for medical expenses.

Taransky v Sec of US HHS No. 13-3483, 214 WL 3719158 (Decided July 29, 2014)

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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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Medicare Takes Bigger Bite Out California Workers Compensation

Medicare has doubled its reimbursement recover from California  workers' compensation claims in a single year according to a report released today. The 100% increase in California from $3Million (2012) to $6Million (2013) illustrates the determinate of CMS (The Centers for Medicare and Medicaid Services)  to end cost-shifting through strict enforcement of the Medicare Secondary Payer Act (MSP).

Since July 23, 2001(The date the Patel Memo was issued) a dramatic increase in the elimination of the Federal "subsidy" of future medical care for compensable work-related conditions has also been reported. In California a 40% increase has been also reported in the last year from $92Million to $129Millon for Medicare Set Aside Agreements.

Click here to read the entire report.

….

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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The Complexity of Medicare

While holding the for CMS (The Centers for Medicare and Medicaid Services) the complexity of the reimbursement of the Medicare Secondary Payer Act was recognized by a Federal Court:

"In re Avandia Mktg., 685 F.3d 353, 365 (3d Cir.2012); The Fourth Circuit has described the Medicare statute as “among the most completely impenetrable texts within human experience.” Rehab. Ass'n v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir.1994). Other courts of appeal, including the District of Columbia Circuit, have echoed this assessment. See Abraham Lincoln Mem. Hosp. v. Sebelius, 698 F.3d 536, 540–41 (7th east Hosp. Corp. v. Sebelius, 657 F.3d 1, 13 (D.C. Cir.2011); Alhambra Hosp. v. Thompson, 259 F.3d 1071, 1076 (9th Cir.2001). For a more literary-flavored spin, consider Judge Lamberth's recent characterization of the statute as akin to “a law written by James Joyce and edited by E.E. Cummings.” Catholic Health Initiatives–Iowa, Corp. v. Sebelius, 841 F.Supp.2d 270, 271 (D.D.C.2012), rev'd, 718 F.3d 914 (D.C. Cir.2013).

Allina Health System v. Kathleen Sebelius, 982 F.Supp.2d 1 (DCT DC 2013)

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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.
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"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 ...
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Found on

World Trade Center Fund Now Covers Myeloid Malignancies

Beginning on February 1, 2014, the World Trade Center (WTC) Health Program began considering blood or bone marrow disorders of the myeloid line to be slow-growing blood cancers. Accordingly, they will be considered WTC-related health conditions, making them available for WTC Health Program medical treatment services for eligible members.

These cancers had been considered non-malignant by the Administrator because they were referred to as “pre-leukemic” hematopoietic disorders in the medical literature. Recent scientific advances, however, characterize these “pre-leukemic” myeloid neoplasms as slow-growing blood cancers, and authoritative scientific sources now consider them to be malignant myeloid neoplasms.

After receiving a request from the WTC Clinical Centers of Excellence to review certain myeloid disorders in terms of their status as malignancies, the WTC Health Program has determined that, in addition to types of leukemias, these myeloid malignancies are eligible for coverage by the WTC Health Program as WTC-related health conditions.

The group of myeloid malignancies includes the following health conditions:

(1) Myelodysplastic Syndromes (MDSs);

(2) Myeloproliferative neoplasms (MPNs);

(3) Myelodysplastic/myeloproliferative neoplasms (MDS/MPN); and

(4) Myeloid malignancies associated with eosinophilia and abnormalities of growth factor receptors derived from platelets or fibroblasts.

On January 2, 2010, President Barack Obama signed the James Zadroga 9/11 Health and Compensation Act establishing the World Trade Health Program and extends and expands eligibility for compensation under the September 11th Victim Compensation Fund of 2001.

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 asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

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CMS Takes a New Direction in the Proposed MSP Appeal Process

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. 

Medicare, in pursuing recovery directly from the applicable plan, removes the beneficiary, as well as the provider or supplier, as the responsible party to initial a re-determination and all subsequent levels of the administrative process that could culminate in judicial review.

Docket ID:CMS-2013-0270

Topic(s):Administrative Practices and Procedures, Health Facilities, Health Professions, Kidney Diseases, Medical Devices, Medicare, Reporting and Recordkeeping Requirements, Rural Areas, X-Rays

Document Type:Proposed Rule

Received Date:Dec 27, 2013

Start-End Page:78802 - 78807

Comment Start Date:Dec 27, 2013

Comment Due Date:Feb 25, 2014

Click here to review the proposed rules.

Found on

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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

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Coordination of Benefits and Non-Group Health Plan Recovery Transition

The Centers for Medicare & Medicaid Services (CMS) is completing its restructuring of the Coordination of Benefits (COB) and Medicare Secondary Payer (MSP) recovery activities.

COB activities for both Group Health Plans and Non-Group Health Plans (that is, liability insurance (including self-insurance), no-fault insurance, and workers' compensation laws or plans) and Recovery activities for Non-Group Health Plans will be transitioned from the COB contractor and the Medicare Secondary Payer Recovery Contractor effective February 1, 2014.  The new Benefits Coordination & Recovery Center (BCRC) will assume these activities.  As previously announced, this action will provide:

• Improved customer service for stakeholders
• Consolidated and streamlined data collection and recovery operations
• Value-added efficiencies and enhanced resource utilization

Found on

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California sends misinformation to 246,000 new Medicaid enrollees

Today's post was shared by Kaiser Health News and comes from www.sacbee.com

LOS ANGELES -- California has mistakenly sent letters to 246,000 low-income residents, warning they may need to find new doctors next year under the state's newly expanded Medicaid program. The error frustrated counties and community health centers, which have repeatedly assured patients they can keep their providers when the Affordable Care Act takes effect in 2014. The patients are part of the state's "bridge to reform" program, which was designed to cover uninsured, poor Californians until they became eligible for Medicaid, known as Medi-Cal here. The program launched in 2011 and more than 600,000 people across the state enrolled in county-based health coverage. Many of them formed relationships with doctors and started seeking regular care. But county and clinic administrators said the incorrect mailing this month has put the counties' efforts in jeopardy. The mix-up occurred as people are scrambling to figure out how the health law impacts them, and as private policy holders have been receiving letters canceling their insurance plans. "The whole key to the success is that people seamlessly transition to Medi-Cal," said Sean South, an associate director at the California Primary Care Association. "It is vitally important that we don't confuse them." But that's what happened when the incorrect letters started going out on Nov. 1, said clinic and county officials. Patients immediately began calling and showing up with questions about the letter, said Eva Serrano, a...

[Click here to see the rest of this post]

Found on

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Professionalism and Caring for Medicaid Patients — The 5% Commitment?

Today's post was shared by NEJM and comes from www.nejm.org

Interview with Prof. Sara Rosenbaum on the health care safety net, Medicaid expansion, and access to care. Medicaid is an important federal–state partnership that provides health insurance for more than one fifth of the U.S. population — 73 million low-income people in 2012. The Affordable Care Act will expand Medicaid coverage to millions more. But 30% of office-based physicians do not accept new Medicaid patients, and in some specialties, the rate of nonacceptance is much higher — for example, 40% in orthopedics, 44% in general internal medicine, 45% in dermatology, and 56% in psychiatry.1 Physicians practicing in higher-income areas are less likely to accept new Medicaid patients.2 Physicians who do accept new Medicaid patients may use various techniques to severely limit their number — for example, one study of 289 pediatric specialty clinics showed that in the 34% of these clinics that accepted new Medicaid patients, the average waiting time for an appointment was 22 days longer for children on Medicaid than for privately insured children.3 Physicians have good reasons for not accepting Medicaid patients, as I learned from direct experience as a member of a nine-physician primary care practice in California. We accepted Medicaid patients, but it was difficult. Medicaid's payment rate was very low — we lost money on each Medicaid visit. When referrals were necessary, we often had to personally ask specialists to accept our patient....

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