daniel.anders, Author at Tower MSA Partners

Medicare Advantage Plan Hits Speed Bump in Effort to Recover Against Medicare Beneficiary and Her Attorneys

March 22, 2018

Case law supporting Medicare Advantage Plans (MAPs) reimbursement rights against primary plans (WC, Liability, No-Fault) continues to accumulate with a recent decision from the United States District Court for the District of Connecticut in Aetna Life Insurance Company vs. Nellina Guerrera, et al., Civil Action No. 3:17-cv-621 (3/13/2018). Consistent with other recent decisions on the issue, the court found that the MAP, Aetna, has a right of reimbursement against the primary plan, Big Y, including double damages, if a suit is filed under the Private Cause of Action (PCA) provision of the Medicare Secondary Payer Act. In determining the rights of Aetna under the PCA provision, the court was persuaded by prior appellate court decisions in In Re Avandia, 685 F.3d 353 (3rd Cir. 2012) and Humana v. Western Heritage, 832 F.3d 1229 (11th Cir. 2016).

While the decision represents the first federal court in the Second Circuit to fully address the use of the PCA provision by a MA plan against a primary plan, what is potentially more significant is the court’s holding that MAPs cannot utilize the PCA to sue Medicare beneficiaries or their attorneys, a decision that is inconsistent with other federal court rulings.

Case Background

The case arose as follows:

The Medicare beneficiary, Nellina Guerrera, allegedly sustained personal injuries at a Big Y store on 2/20/2015.
Ms. Guerrera was enrolled in an Aetna MAO Plan which paid for injury-related medical in the amount of $9,854.16.
Ms. Guerrera retained the law firm Carter Mario to represent her in a liability claim against Big Y.
Beginning on 9/22/2015, a year before a settlement agreement, Aetna made multiple attempts to provide notice to defendants of their lien.
On 3/10/2016 Big Y agreed that it would not send the full amount of any settlement to Ms. Guerrera and her attorneys without first dealing with Aetna’s lien (We assume this may have been an agreement with Aetna).
Case was settled for $30,000 with full amount paid to Ms. Guerrera and her attorneys on 9/15/2016 without addressing the reimbursement claim of Aetna.
Aetna files suit not only against Big Y, but also Ms. Guerrera, and Ms. Guerrera’s attorneys under the PCA provision of the MSP Act.

Court Decision

The primary questions for the court were whether the PCA provision of the MSP Act is available to MAPs, who may be sued under the PCA (primary plans, Medicare beneficiaries, attorneys) and under what circumstances a suit may be brought. The PCA states as follows:

There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs [(b)](1) and [(b)](2)(A).

The court reached the following conclusions on each question.

Why May Sue Under the PCA?

In reaching its decision regarding who may be sued under the PCA the court cited the appellate court decisions In Re Avandia and Western Heritage as being persuasive in concluding the PCA unambiguously permits suits by MAPs. The court went on to find that even if the PCA was interpreted to be ambiguous, CMS regulations stating MAPs may sue under the PCA would be given deference, thus leading to the same conclusion.

Who May Be Sued Under the PCA?

While the court notes the PCA does not specify against whom a suit may be filed, it cites to Second Circuit precedent which has interpreted primary plans or payers as entities which may be sued under the PCA. The court also finds that Big Y meets the definition of a primary plan under the MSP Act and as such the suit can proceed against it.

Aetna though not only filed suit against the primary plan, Big Y, but also Ms. Guerrera, the Medicare beneficiary, and her attorneys. As to these defendants the court reaches a different conclusion. While admitting that the PCA language is vague, the court nonetheless interprets the Congressional intent as only permitting suits against primary plans. It cites the language “a primary plan . . . fails to provide for primary payment” as what not only triggers the ability to sue under the PCA, but also limits recovery to solely primary plans. The court finds that had Congress intended the PCA to apply to Medicare beneficiaries and their attorneys, it would have created such a cause of action similar to that applicable to primary plans. While the court notes its ruling conflicts with CMS’s interpretation, which would provide MAPs with a right of reimbursement against a Medicare beneficiary and their attorney, the court held it will not defer to CMS’s interpretation in this regard.

In finding that the PCA does not provide for a suit against a Medicare beneficiary or the beneficiary’s attorneys, the court declined to follow other federal court decisions which have found such an action to be viable under the PCA, such as Humana Insurance Company v. Paris Blank LLP.

When is a Suit Proper under the PCA?

In regard to the question as to when a suit is proper under the PCA, the court looks to the term “appropriate reimbursement” and determines that Big Y’s payment to Ms. Guerrera and her attorneys did not amount to appropriate reimbursement when the primary plan has notice of a claim for reimbursement from a MAP. The court goes on to again cite the Western Heritage decision which in turn cites Medicare regulations:

If a beneficiary or other party fails to reimburse Medicare within 60 days of receiving a primary payment, the primary plan ‘must reimburse Medicare even though it has already reimbursed the beneficiary or other party.’ 42 C.F.R. § 411.24(i)(1)

Accordingly, once 60 days passed from the date of payment by Big Y to Ms. Guerrera and her attorneys and no repayment was made to Aetna, Big Y became obligated to reimburse Aetna and subject to a suit by Aetna under the PCA.

Practical Implications of Decision

This decision is at the district court level, thus does not have precedential value which would make it binding precedent as we have in the 3rd (Pennsylvania, New Jersey & Delaware) and 11th (Florida, Alabama & Georgia) Circuits. Nonetheless, it represents the first decision in the 2nd Circuit (Connecticut, New York and Vermont) to completely address MAP reimbursement under the PCA, thus will be used as persuasive authority in future cases both in and out of the 2nd Circuit. While the decision in this case continues the trend of court decisions finding in favor of MAPs rights of reimbursement against primary plans under the PCA, it has diverged with prior decisions in finding suits against Medicare beneficiaries and their attorneys are not allowed under the PCA.

What this means for primary plans is they have a target firmly planted on their backs, especially if future court decisions find MAPs cannot recover against Medicare beneficiaries or their attorneys. We suspect that this issue will eventually be addressed at the appellate court level, if not in this case, then in future litigation.

What steps then can you take as a primary plan to eliminate this risk:

Identify Medicare eligible claimants.
Determine whether Medicare eligible claimants are or were enrolled in a MAP since the date of injury.
If enrolled in a MAP, then investigate whether the plan is seeking reimbursement stemming from the injury.
Make arrangements to directly reimburse the MAP for injury-related payments.

Tower MSA is readily available to assist you with our MA Plan investigation, negotiation and resolution service. Please contact us at (888) 331-4941 or info@towermsa.com for further information or questions.

New CMS MSA Review Contractor: Different Name, Same Policy and Procedures

March 7, 2018

While the review contractor is changing, the Workers’ Compensation Medicare Set-Aside (WCMSA) review policies and procedures remain the same. This was the message related to attendees of the Workers Compensation Review Contractor (WCRC) transition webinar held by CMS, yesterday, March 7, 2018. The purpose of the webinar was to introduce the WCMSA community to the new WCRC and provide information on the transition from Provider Resources, which ceases its work on March 16, 2018, to Capitol Bridge, which commences its work on March 19, 2018.

John Jenkins, CMS’s Health Insurance Specialist overseeing the WCRC contract, led off the presentation and then turned it over to Holly Haven, Capitol Bridge’s WCRC Project Director. Ms. Havens provided the following key information:

What is Not Changing

As our program matures, we will strive to improve both the quality of our work and the timeliness in which cases are completed through automation and our continual improvement focus.

The review and decision making process will remain the same.

WCMSA proposals will continue to be submitted through the portal or by mail to the same Oklahoma City address.

All established timeframes remain the same.

All inquiries will be handled by staff in our Pittsford, NY office, and customer service will be a priority.

Inquiries may still be communicated via telephone.

In summary, Capitol Bridge will continue to be guided by the guidelines laid out in the CMS WCMSA Reference Guide and maintain the 20-business day turnaround time for review of a WCMSA as required by CMS.

What is Changing

Processing of all cases will be handled out of their facility in Pittsford, NY.
New phone number for the WCRC is (833) 295-3773 with customer service hours from 9am to 5pm EST.
Email address for the WCRC is WCRC@capitolbridgellc.com
Fax number is (585) 425-5390

In the Q&A session following the formal presentation additional information was provided:

WCMSAs will be reviewed by RNs with the MSCC credential.
The WCRC staff includes attorneys, physicians and pharmacists.
WCMSA proposals which have not been reviewed by the outgoing contractor by March 16 will be transferred to the new contractor for review.
In response to a question as whether to expect an MSA backlog such that review times will lengthen, CMS noted that the outgoing contractor was typically completing its reviews in less than the required timeframe of 20 days.The implication then is the new contractor may be using the full 20 business days to complete its review.
A question was raised regarding Liability MSAs, but no answer was given as the webinar was not for the purpose of addressing policy questions.

While the CMS WCMSA policy remains the same, the interpretation and implementation of that policy will soon be in new hands. Tower MSA will be closing monitoring WCMSA reviews through Capitol Bridge to ascertain what, if any, differences can be identified in the allocation of care in the WCMSA compared to the prior contractor. Variances outside of established CMS guidelines will be challenged.

If you have any questions, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or Daniel.anders@towermsa.com.

CMS Webinar to Introduce New MSA Review Contractor

March 1, 2018

Effective March 19, 2018, Capitol Bridge, LLC will be taking over responsibilities from Provider Resources as CMS’s Workers Compensation Review Contractor (WCRC). CMS has now announced a webinar set for Wednesday, March 7, 2018 at 1:00 PM ET to introduce the new MSA review contractor. See CMS Notice which includes a link to register for the webinar.

Capitol Bridge becomes the third company since 2003 to be awarded the WCRC contract. The contractor is charged with evaluating Workers’ Compensation Medicare Set-Aside (WCMSA) proposals submitted to CMS for review and approval. Using criteria set by CMS, it makes recommendations to the designated CMS Regional Office (RO) as to whether the proposed MSA amount adequately protects Medicare’s interests. If the WCRC disagrees with the proposal it will provide an alternate recommendation, either higher or lower, than the proposed amount. The CMS RO usually accepts the recommendation from the WCRC and issues the approval letter to the submitter of the MSA.

Besides the transition to the new contractor, what is unique about Capitol Bridge’s contract with CMS is the inclusion of a provision providing for the optional expansion of its MSA review responsibilities to liability and no-fault cases as early as July 1, 2018. We caution though that CMS has not announced that such an expansion will occur on July 1, 2018.

Tower MSA applauds CMS for inviting those impacted by the contractor change to this introductory webinar. On the heels of the January webinar introducing the new CRC contractor, we are pleased with more transparency by CMS in its process and policy changes. If you are unable to attend CMS’s webinar, Tower MSA will provide a summary of relevant information on our MSP Compliance Blog following the presentation.

CRC Contractor Change Brings New Team to Medicare Conditional Payment Recovery Efforts

January 21, 2018

On Thursday, January 18, 2018, the Centers for Medicare and Medicaid Services (CMS) held a webinar to introduce the new Commercial Repayment Center (CRC) contractor, Performant Recovery, and Performant’s management team. This transition to a new contractor is important to insurers and employers as the CRC is responsible for the recovery of Medicare conditional payments against these entities stemming from liability, workers’ compensation and no-fault claims where ongoing responsibility for medicals has been accepted.

Ted Doyle, the Performant MSP CRC Project Director, emphasized in his introductory remarks and throughout the presentation that their main goal is to make the transition seamless for all those who engage with the CRC. His message to stakeholders is CMS’s recovery processes and timeframes remain the same, it is only the entity handling those processes that is changing.

Besides Mr. Doyle, other webinar participants were John Albert, the Director of the CMS Division of Medicare Benefit Coordination and Laura Martinez, the MSP CRC NGHP Recovery Manager for Performant.

Key contractor transition information provided during the webinar was as follows:

The current CRC contractor, CGI Federal, will cease operations effective Friday, February 9, 2018.
Performant Recovery will commence CRC operations effective Monday, February 12, 2018.
Transition cutover, or what CMS calls “Dark Days,” will occur on February 8 and 9. During this period while CGI Federal will continue to answer telephone calls and the Medicare Secondary Payer Recovery Portal (MSPRP) will be available, the information will be limited to what was available at close of business on February 7. Also, uploading documents through the MSPRP will not be available.
Performant will go live as of 8am EST on February 12 at which point the MSPRP will once again be fully available as well as the call center. Correspondence received during the Dark Days or prior to the transition will be transferred to Performant for handling.

In regard to what will remain the same post-transition:

All current cases initiated by CGI will be transitioned to Performant.
Case information, copies of communication, correspondence and contact information, including letters of authority, will be fully accessible to Performant such that there should be no reason for stakeholders to resend correspondence or other information that was previously provided to CGI.
There will be no changes to CMS established recovery processes or timeframes applicable to MSP recovery.
The CRC Call Center will continue the same hours: 8am – 8pm EST
The CRC Call Center phone number will remain the same: (855) 798-2627
All Benefits Coordination and Recovery Center (BCRC) processes remain the same, including Section 111 Mandatory Insurer Reporting.

As for what is changing post-transition:

Effective 2/12/2018* the CRC has a new address:Medicare Commercial Repayment Center – NGHP ORM
P.O. Box 269003
Oklahoma City, OK 73216

*Any correspondence received prior to 2/12/2018 will be held and then processed starting on that date.
Effective 2/12/2018 the CRC fax number is (844) 315-7627.

As with any transition, some bumps are to be expected. We are hopeful these will be short-term and that the transition will not only be seamless, but that Performant improves the customer service aspect of the Medicare conditional payment recovery process. CMS and Performant engaging with Tower MSA and other stakeholders through this webinar is a good first step at building a collaborative relationship with those impacted by the CRC’s recovery efforts.

It was indicated a copy of the presentation slides will be made available on the downloads section of the CMS Coordination of Benefits and Recovery website next week.

If you have any questions regarding the CRC contractor transition, please contact Dan Anders at daniel.anders@towermsa.com or (888) 331-4941.

Daniel Anders, Esq., MSCC

Daniel M. Anders is the Chief Compliance Officer for Tower MSA Partners where he oversees the Medicare Secondary Payer (MSP) compliance program. Dan is an attorney licensed to practice in the State of Illinois and the United States District Court for the Northern District of Illinois.

CMS to Host Webinar on Transition to New CRC Contractor

January 9, 2018

On Thursday, January 18, 2018, at 1:00 PM ET, the Centers for Medicare and Medicaid Services (CMS) will host a webinar for the purpose of introducing the new Commercial Repayment Center (CRC) contractor to Non-Group Health Plans.

The CRC is responsible for recovery of Medicare conditional payments from liability insurers (including self-insured entities), no-fault insurers and workers compensation entities where such entities are the identified debtor by Medicare. It was announced last October that the new CRC contract had been awarded to Performant Financial Corporation (See Tower MSA article: New Commercial Repayment Center Contractor on the Horizon). The transition to the new contractor is to occur on February 8, 2018.

According to the January 5, 2018 CMS Notice, the webinar will consist of opening remarks and a presentation by CMS followed by a Q & A session. We encourage anyone who has regular contact with the CRC to register and attend the presentation (A link to register is located in the CMS Notice). If you are unable to attend, Tower MSA will provide a summary of relevant information on our MSP Compliance Blog following the presentation.

As CMS contractor changes are often fraught with a subsequent period of longer turnaround times and inconsistent communication with contractor representatives, we hope this transition proves an exception to past experiences. This introductory webinar appears to be a useful first step.

If you have any questions regarding the CRC contractor transition, please contact Dan Anders at daniel.anders@towermsa.com or (888) 331-4941.

Updated Section 111 User Guide Provides for Transition to MBIs, ORM Termination Defined

January 3, 2018

Pursuant to the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015, CMS is required to transition all Medicare beneficiaries from the Social Security Number based Health Insurance Claim Numbers (HICNs) to a new identification number called a Medicare Beneficiary Identifier (MBI). The primary purpose of this initiative is to reduce identify theft associated with use of Social Security Numbers in HICNs.

Accordingly, starting in April 2018 CMS will begin to mail new cards with the new Medicare numbers to Medicare beneficiaries. The goal is to issue all new cards by April 2019. For medical providers, there will be a transition period from 4/1/2018 through 12/31/2019 in which either the HICN or MBI will be accepted for processing of payments by Medicare.

Minimal Impact on Section 111 Reporting

Unlike medical providers which must exclusively use the MBI by 1/1/2020, as explained in the updated Section 111 NGHP User Guide, CMS has exempted its Medicare Secondary Payer Reporting processes from exclusive use of the MBI. Consequently, we can continue to report to CMS using a Social Security Number, a HICN or an MBI. In announcing this policy, CMS indicates it has renamed fields labeled “HICN” to “Medicare ID.”

While allowing for continued reporting of HICNs in its Section 111 reporting processes, CMS states that if an MBI has been issued to the claimant, it will return the MBI in the Section 111 response files. We expect then that while not requiring submission of MBIs, CMS nonetheless expects a natural transition to their use for MSP matters over time.

Medicare Conditional Payment Recovery Correspondence to Include Either HICN or MBI

As part of this update, CMS states that its recovery contractors, the Benefits Coordination and Recovery Center (BCRC) and the Commercial Repayment Center (CRC), will use either an HICN or MBI in its correspondence based upon the most recent information provided by the Responsible Reporting Entity (RRE) when creating or updating the MSP record. Again, we expect a natural transition from use of HICNs to MBIs in correspondence from the recovery contractors over the next few years.

The Tower MSP Automation Suite is fully capable of accepting SSNs, HICNs or MBIs for purposes of Section 111 Mandatory Insurer Reporting.

ORM Termination Defined

In addition to updating its User Guide to address the transition to MBIs, CMS also added language to its Section 111 “Policy Guidance” User Guide specifically defining under what circumstances Ongoing Responsibility for Medical (ORM) may be terminated. The revised Section 6.3.2 states as follows:

6.3.2 ORM Termination

When ORM ends, the RRE should report the date that ORM terminated and should NOT delete the record. Please note that a TPOC amount is not required to report an ORM termination date. An ORM termination date should not be submitted as long as the ORM is subject to reopening or otherwise subject to an additional request for payment. An ORM termination date should only be submitted if one of the following criteria has been met:

Where there is no practical likelihood of associated future medical treatment, an RREs may submit a termination date for ORM if it maintains a statement (hard copy or electronic) signed by the beneficiary’s treating physician that no additional medical items and/or services associated with the claimed injuries will be required;
Where the insurer’s responsibility for ORM has been terminated under applicable state law associated with the insurance contract;

Where the insurer’s responsibility for ORM has been terminated per the terms of the pertinent insurance contract, such as maximum coverage benefits.

While now formalized, this ORM termination guidance had previously been provided by CMS, either in other sections of the User Guide or in guidance provided outside the guide, such as through CMS Townhall calls.

Notably, advocacy efforts have been made with CMS to request an expansion of the ORM termination criteria. Such expansion would, for example, provide for ORM termination if no medical has been paid on a claim over a certain number of years. The benefit of allowing for a greater number of claims to terminate ORM would be less of an administrative burden for employers and carriers and a reduction in denials of payment by Medicare for charges completely unrelated to reported claims.

Unfortunately, CMS has thus far been unresponsive to expanding its definition of ORM termination, choosing instead to work out improper denial of payments and unwarranted conditional payment recovery efforts on the back-end rather than addressing the quality of the data reported to CMS on the front-end.

The Updated Section 111 User Guide, Version 5.3, may be found here.

Please contact Dan Anders at Daniel.anders@towermsa.com or (888) 331-4941 with any questions regarding the updated guide.

CMS Statement on Opioids and WCMSAs Provides Little Clarity as to Future Review Practices

December 27, 2017

In a recent post on its website, the Centers for Medicare and Medicaid Services (CMS) acknowledged the opioid crisis in this country, but provided little clarity as to how it intends to address this crisis in its review and approval of Workers’ Compensation Medicare Set-Asides (WCMSAs).

The 12/14/2017 statement provides as follows:

CMS understands the concerns regarding the opioid crisis occurring in the United States. We are committed to ensuring the determination of Workers’ Compensation Medicare Set Aside Arrangement (WCMSA) amounts are an adequate projection of claimant’s needs for future medical services and prescription drugs. CMS continually evaluates all policies and procedures related to WCMSA amounts. Any changes that Medicare pursues related to this issue will be reflected in our WCMSA amount review process.

More information on the WCMSA process can be found in the WCMSA Reference Guide.

We assume the above statement may be, in part, related to the California Workers Compensation Institute (CWCI) study finding nearly 70% of CMS approved MSAs require funding of opioids over an injured worker’s life expectancy (See our article, Opioids in the MSA . . . Challenges and Strategies, where this study is discussed). While we credit CMS’s Office of Financial Management (the CMS department which oversees the WCMSA review program and contractor) with recognizing the opioid crisis, what is left uncertain is what specific actions CMS is to take to address this problem in WCMSAs. Instead, CMS provides a vague statement indicating any changes related to the opioid issue will be reflected in its WCMSA review process and then cites its WCMSA Reference Guide.

CMS does not cite to a particular section of the guide, but we assume the following would be the most pertinent:

Drug Weaning/Tapering

Drug weaning commonly occurs with pain medications, such as opioids, especially when claimants’ work injuries improve. The WCRC takes all evidence of drug weaning into account, although in most circumstances the WCRC cannot assume that the weaning process will be successful. Usually, the latest weaned dosage is extrapolated for the life expectancy, but again, they assess all records when making these types of determinations. Where a treating physician believes tapering is possible and in the best interests of the claimant, CMS will consider all evidence in making a WCMSA determination, including medical evidence of current actual tapering.

Based upon the Tower MSA CMS Reconciliation Module, which reviews all MSA determinations for the purpose of identifying trends in CMS WCMSA allocation practices, CMS consistently disregards any active weaning or tapering process or scheduled reduction to future medication use and instead takes the latest dosage found in the medical records and/or prescription history and extrapolates it over the claimant’s life expectancy.

The question then is whether this December 2017 statement signals a departure by CMS from these past practices to a policy which will now give more weight to a weaning or tapering schedule from the treating physician which translates into limitations on the allocation of opioids in the WCMSA. We will take a wait and see approach in this regard.

It should be understood though that even were CMS to limit the allocation of opioids in the WCMSA, this in no way prevents the claimant from using the WCMSA funds for filling opioid prescriptions in excess of what is allocated. The reason being is CMS rules for administering a WCMSA allow for the funds in the account to be used for any Medicare-covered injury-related treatment or medication. As such, with a valid prescription, there is nothing to stop a claimant from converting funds allocated to a surgery to pay for medications, including opioids. It will remain then in the hands of the claimant’s medical provider to wean the claimant off opioids and other medications not intended for long-term use.

Practical Implications

As always, we will monitor CMS WCMSA determinations for signs of any changes to their allocating practices for prescription medications, especially in regard to opioids. However, we have to assume that until we see any changes, CMS will continue to follow its policy of taking the most recent medication dosage and frequency and pricing it out over the claimant’s life expectancy.

What this means then is opioid misuse must be addressed prior to submission of a WCMSA to CMS with any actual elimination of opioids documented in the medical records prior to submission of the MSA. Tower MSA is committed to working with our clients on reduction and elimination of opioids prior to CMS submission. Our Pre-MSA triage service is uniquely designed to identify such MSA cost-drivers and recommend intervention strategies, including escalating the matter to our Internal Pharm. D. for direct contact with the treating physician. Resulting reductions in opioid use limit MSA costs to the employer and provide for a healthier injured worker over his or her lifetime.

Please contact Dan Anders at Daniel.anders@towermsa.com or (888) 331-4941 with any questions regarding CMS practices in allocation of prescription medications in the WCMSA.

CMS Releases Statement Regarding Stakeholder Input in Liability MSA Review Process

October 27, 2017

CMS issued the following brief statement on their website this week:

The Centers for Medicare and Medicaid Services (CMS) continues to consider expanding its voluntary Medicare Set-Aside Arrangements (MSA) review process to include liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS will work closely with the stakeholder community to identify how best to implement this potential expansion of voluntary MSA reviews. Please continue to monitor this website for updates and announcements of town hall meetings in the near future.

Notably, very little information provided other than stating CMS will work with stakeholders before formalizing the expansion of the MSA review process to liability and no-fault. Based upon this statement, we can assume CMS will not spring the expansion on us, but give impacted parties an opportunity to comment before a final policy is put in place. Tower MSA will provide updates when further information is released by CMS or town hall meetings are scheduled.

Don’t Plan to Fail: Best Practices for Addressing Medicare Advantage Plan Reimbursement

October 25, 2017

Benjamin Franklin must have been contemplating Medicare Advantage Plan reimbursement when he uttered one of his famous lines: “If you fail to plan, you are planning to fail.” Over the past few years Medicare Advantage plans have increasingly been seeking reimbursement for payments made stemming from workers’ compensation, liability and no-fault claims, otherwise known in Medicare circles as Non-Group Health Plans (NGHPs). Despite these increasing efforts, many NGHPs have not planned how they should respond to such reimbursement claims.

With the goal of working with our clients to educate and assist with proper planning, earlier this month, Tower MSA was privileged to have Brian Bargender, Subrogation & Other Payer Liability Business Consultant for Humana, participate in a webinar to discuss reimbursement rights of Medicare Advantage plans, and best practices for investigating and responding to reimbursement claims. For those who were unable to attend, or would like a refresher, we are pleased to provide below a summary of Mr. Bargender’s presentation along with some final thoughts and takeaways.

Medicare Advantage Plan Background

Part C Medicare Advantage plans (MA plans) are alternative delivery mechanisms for traditional Medicare benefits (Parts A and B) provided by private companies under contract with CMS. Medicare beneficiaries have the option of choosing one of these Medicare Advantage plans during annual or special enrollments periods. The three largest MA plan sponsors (representing almost half of the available plans) are UnitedHealthcare, Humana and Aetna. As of 2017, one-third of Medicare beneficiaries are enrolled in MA plans.

Medicare Advantage Plan Recovery Rights

Pursuant to CMS direction, MA plans must enforce the Medicare Secondary Payer Act (MSP) and will be audited by CMS for compliance with the Act. Consequently, these plans are obligated to coordinate benefits such that MA Plan coverage is denied when a primary payer is covering treatment and when the MA plan pays, but later learns of primary payer responsibility, seek reimbursement for payments made relating to the particular workers’ compensation, liability or no-fault claim.

MA plans right to reimbursement, including double damages, from NGHPs under the MSP Act has been acknowledged in at least two significant federal appellate court decisions:

In re: Avandia, 685 F.3d 353 (3d Cir. 2012)
Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016)

Medicare Advantage Plan MSP Enforcement Challenges

Despite CMS’s direction to MA plans regarding enforcement of the MSP Act, including coordination of benefits, the data available to the MA plans to perform this task is inconsistent and error prone. Consequently, MA plans have taken one of three approaches to MSP enforcement:

Inactive: Minimal effort
Reactive: Relying upon member and medical provider reporting of primary plans
Proactive: Claim screening and investigation

As Mr. Bargender explained, Humana is taking the proactive approach. Nonetheless, the challenges faced by Humana in identifying coordination of benefits situations has proven difficult as a result of gaps in medical provider and Medicare beneficiary self-reporting and data provided by CMS which is “too little, too late, often wrong.” Additional challenges faced by MA plans are incomplete direction from CMS and non-cooperation of Medicare beneficiaries and plaintiff attorneys to MA plan reimbursement claims. As such, Humana utilizes a multi-faceted approach of member questionnaires, public records, such as accident reports and workers’ compensation claims, and non-public records, such as data relayed by CMS, to determine possible MSP coordination of benefits and reimbursement opportunities.

Best Practices for Non-Group Health Plans and MA Plan Reimbursement

Humana’s proactive approach then has the ultimate goal of reimbursement for charges related to the claimed injury. Mr. Bargender shared the following basic precautions to be taken by NGHPs:

Train front-line staff on MSP basics – including MA & Part D
Assume older & disabled claimants have some form of Medicare
Be proactive when told claimants don’t have original Medicare
Watch for other payer info in medical records
Watch for notices from other payers
No-fault and accepted work-comp claims
Pay treating providers directly for outstanding medical bills
Be suspicious of billing gaps (other payer?)

And when it comes to Liability and disputed or denied workers’ compensation claims:

Find out who paid for medicals

Providers rarely wait for settlements
CMS “no payment” letters aren’t the last word
Request benefit ID card(s)
Ask to see other payer “no payment” letters
Medicare/Medicaid dual beneficiaries? …assume Part D paid Rx

Address MSP repayment before agreeing to settlement

Determine amount before settlement is finalized
Don’t assume plaintiff will reimburse MA plan or unpaid providers
What does settlement indemnification language actually accomplish?

In terms of negotiating and resolving MA plan claims for reimbursement, Mr. Bargender offered as follows:

Most MA plans are open to working with primary payers

Focus on these:

Rationale for denying beneficiary’s underlying claim, not MA/Part D rights
Limits exhausted, treatment not allowed/capped, etc.
What’s related (was it in the demand or release?)
Errors in plan’s payment ledger
Extenuating circumstances

Not on these:

Reasonableness of amounts paid by MA
Claim filing time limits vs. MSP statute of limitations
Contract language” in the MA Evidence of Coverage document

Final Thoughts and Takeaways

In working with Mr. Bargender and the subrogation team at Humana, we have found them very helpful in promptly identifying specific reimbursement claim information where the claimant was enrolled in a Humana Medicare Advantage plan. Further, they are open to understanding the particular liability issues and bases for settlement, something not typically found with the Medicare conditional payment recovery contractors.

The primary takeaway from Mr. Bargender’s presentation is NGHPs must be proactive in identifying whether a Medicare eligible claimant is enrolled in a MA plan, and, if so, investigate whether the plan is seeking reimbursement for payments made related to the claim. As there exists no central database accessible to NGHPs in which to identify the MA plan a claimant is enrolled, the claims handler must be proactive in inquiring of the claimant whether they are enrolled in such a plan.

Tower MSA Partners will work with our clients to assist in identifying whether a claimant may be enrolled in a MA plan, identify the name of the plan and investigate whether such plan is seeking reimbursement stemming from the claim. We stand ready to assist you through general consultation on ensuring your MSP compliance program appropriately addresses MA plans or consultation on MA plan recovery* in a specific claim.

*While we did not delve into Part D Prescription Drug plans in this article, such plans arguably have similar reimbursement rights as Part C Medicare Advantage plans. NGHPs should also be aware of the potential for reimbursement claims from these plans.
Daniel Anders

New Commercial Repayment Center Contractor on the Horizon; WCRC Contract Protested

October 9, 2017

A recent press release from the Performant Financial Corporation announced it has been awarded the Commercial Repayment Center (CRC) contract by the Centers for Medicare and Medicaid Services (CMS). Barring a bid protest, we expect a transition to the new CRC contractor over the next few months (CGI Federal’s contract, the outgoing CRC contractor, appears to run through 1/8/2018).

CRC Responsibilities

The Commercial Repayment Center is responsible for identifying and recovering primary payments mistakenly made by the Medicare program when another entity had primary payment responsibility (otherwise known as conditional payments). While CGI Federal has had the responsibility for recovering from group health plans for several years, it has been recovering from non-group health plans, such as a liability insurer, no-fault insurer, or workers’ compensation entity, only since 10/1/2015.

As those of you who have had any dealing with the CRC know, communication with the CRC following that start date was often frustrating as a result of long turnaround times to receive conditional payment information and inconsistent and contradictory responses from CRC representatives. While communication with the CRC has definitely improved over time, CMS has nonetheless chosen not to renew their contract with CGI Federal. CMS’s reasons are unstated, but as we noted in a recent article, CMS Releases Annual Report on CRC Conditional Payment Recovery, conditional payment amounts recovered by the CRC on behalf of Medicare declined from 2015 to 2016, despite the expansion of CRC’s recovery efforts to non-group health plans.

Besides the CRC contract, Performant currently acts as a Recovery Audit Contractor (RAC) for Medicare’s fee-for-service program (Parts A and B). As a RAC, Performant identifies and corrects improper payments made to medical providers as a result of insufficient documentation to support the payment, payments made which do not meet CMS guidelines and payments made for services that are incorrectly coded.

Similar to the RAC contract, the CRC contract is paid on a contingency basis. Consequently, the CRC contractor has an incentive to recover as much as possible on behalf of CMS. Per the Performant press release, “at full scale, Performant anticipates staffing the program with over 250 dedicated employees operating out of Performant’s offices around the country.”

CMS contractor transitions (see below bid protest) usually do not go as smoothly as advertised, thus we will wait and see how effectively this new contractor takes on the role as the CRC. We will advise you of any important developments during to and subsequent to the contractor transition.

WCRC Contract Under Protest

In a 9/11/2017 article, CMS to Transition to New MSA Review Contractor, we detailed the awarding of the new $60 million, five-year contract, for the Workers Compensation Review Center (WCRC) to Capitol Bridge, LLC. Two of the unsuccessful bidders, Arch Systems, and Ken Consulting, have filed formal protests to the awarding of the contract to Capitol Bridge. The protests are to be resolved by 12/21/2017. It appears then that this will delay the transition to the new WCRC. We will keep you apprised of any notable news on the WCRC transition.