Medicare Advantage Plans – A New Layer in the Conditional Payment Process?

November 8, 2012

Over the past few years, much has been written about the mandatory reporting requirements associated with MMSEA Section 111 and the increased interest in ensuring that Medicare is reimbursed for any conditional payments made for a workers’ compensation injury.   Unfortunately, under this same backdrop of focused attention on recovery, very little, (i.e. no) attention has been given to the unique issues raised when settling a case with a Medicare beneficiary who receives Medicare Part D benefits, or is enrolled in a Medicare Advantage (MA) plan. This changed overnight when, On June 28, 2012 in the case of In re Avandia Marketing, Sales Practices and Products Liability Litigation, 2012 WL 2433508, the Third Circuit Court of Appeals became the first Circuit Court to recognize that a Medicare Advantage Plan has a private cause of action under the Medicare Secondary Payer Act (“MSP”).  So what are the recovery rights of MAP’s and how do we make certain the interests of both the payer and Medicare are appropriately considered when settling a case with a Medicare beneficiary who is enrolled in such a plan?

Background

In 1980, Congress enacted the Medicare Secondary Payer (MSP) statute in an effort to reign in the burgeoning costs of the Medicare program. Under the MSP statute, Medicare makes “conditional” payments, and Medicare has a right of reimbursement if it determines that a third-party primary payer bore responsibility for those payments. 42 U.S.C. § 1395y(b)(2)(B) (2006). The MSP also created a private cause of action to enforce the right to recover payments made by Medicare that are the responsibility of a primary plan. 42 U.S.C. § 1395y(b)(3)(A).

In 1997, Congress created Part C of the Medicare law, now known as the Medicare Advantage program, as an alternative to the traditional Medicare program under Parts A (hospital insurance) and B (medical insurance). MAP’s are offered by private companies and provide all coverage provided by Medicare Part A and Part B and typically offer additional coverage, such as vision, hearing, dental, etc. MAP’s are essentially Medicare HMOs operated by private insurers. The statute creating these plans contains an independent secondary payer provision, which references but does not fully adopt or incorporate the MSP statute. 42 U.S.C. § 1395w-22(a)(4).

Enacted in 2007, the Medicare, Medicaid, and State Child Health Insurance Program (SCHIP) Extension Act (MMSEA) expanded the ability of the federal government to recover sums owed under the MSP statute by imposing strict reporting requirements and penalties for noncompliance. 42 U.S.C. § 1395y(b)(7), (b)(8). Under MMSEA section 111, all insurers as well as self-insurers, collectively referred to as “responsible reporting entities” (RREs), must report information regarding payments made to Medicare beneficiaries and other data to ensure proper coordination of benefits with the Medicare program. 42 U.S.C. § 1395y(b)(7)(A); 42 U.S.C. § 1395y(b)(8)(A). This reporting requirement applies irrespective of whether the beneficiary is enrolled in traditional Medicare or in a MA plan.

What Are the Recovery Rights of MAP’s

Medicare conditional payments are a potential cost that must be considered in any claim involving a Medicare beneficiary.   Medicare has the right to be reimbursed, and the power to enforce that right, under the Medicare Secondary Payer Act (MSPA) to the extent that Medicare has already paid for injury related medical treatment.   What some do not appreciate, however, is that the conditional payments referenced in the standard Conditional Payment Letter from the Medicare Secondary Payer Recovery Contractor (MSPRC) are only those that have been made under Medicare Part A (inpatient and some outpatient care) and Part B (physician’s fees, therapy, durable medical equipment, etc.), sometimes referred to collectively as “traditional Medicare”.   MSPRC presently does not track, and does not attempt to recover, those payments that have been made under Part C (Medicare supplemental plans) or Part D (drug coverage) and very often these other payments are quite substantial.

Part D payments are made by private insurers, and third party pharmacy suppliers, approved by, and under contact with, Medicare and Part C payments are made by private insurers who have been approved by Medicare to write policies that cover items that are either not covered by Medicare under Parts A and B (this is Medicare supplementary coverage) or which replace traditional Medicare completely and which provide additional medical benefits as well.  These Part C comprehensive plans are known as Medicare Advantage Plans (MAP’s) and the insurers or sponsors are referred to as Medicare Advantage Organizations (MAO’s). It should be noted that some, but not all, MAP policies also replace Part D coverage.

While there is a general agreement that MAP’s have a contractual right to seek recovery of expenses paid to a Medicare beneficiary, the existence of a private right of action to enforce that claim in federal court under the MSP statute has been less straightforward. MAP’s contend that they have rights as a secondary payer under the MSP statute to seek recovery of paid expenses. Beneficiaries and primary payers, on the other hand, contend that the MSP statute does not confer a private cause of action on MAP’s. Prior to 2012, federal district court cases lend support to the position that MAP’s do not have a private right of action to enforce their reimbursement rights under the MSP statute; instead leaving MAP’s to enforce their rights as secondary payers under state contract law. However, the more recent Third Circuit of Appeals opinion In re: Avandia Marketing, Sales Practices and Products Liability Litigation, 2012 WL 2433508 (6th Cir. 6/28/12) marks a departure from earlier decisions and will no doubt create uncertainty and debate surrounding the reimbursement rights of MAP’s going forward.

Third Circuit Opinion–In re: Avandia Marketing, Sales Practices and Products Liability Litigation

In In re: Avandia Marketing, Sales Practices and Products Liability Litigation, No. 11-2664, 2012 WL 2433508 (3rd Cir. 6/28/12), the Third Circuit Court of Appeals held that a MAP has a private right of action under the MSP to recover payments it has made that are the responsibility of a primary plan. In doing so, the court reversed the district court, which had dismissed the claims of the involved MAP on the basis that the MSP does not grant a MAP a private right of action to enforce its rights as a secondary payer.

In sum, the Third Circuit found that MAP’s have the same recovery rights as traditional Medicare based on a plain reading of the MSP statute, given the legislative history and policy goals of the Medicare Advantage program, and considering due deference owed to Medicare’s interpretation of the MSP statute and related regulations.

Tower MSA Partners – Proactive in Pursuit of Resolution

Regardless of whether an injured worker / plaintiff received Medicare benefits through a MAP or traditional Medicare, compliance with MMSEA Section 111 MIR mandates that the responsible reporting entity report the settlement to CMS. This reporting obligation is separate and distinct from a MAP’s recovery rights under the MSP statute.  In addition, Primary payers may not be aware that during a March 22, 2012 teleconference call, CMS stated that they are now sharing MMSEA Section 111 Data with MAP’s.  Therefore, MAP’s are now armed with settlement information concerning Medicare beneficiaries in the same manner as traditional Medicare.

Today, about 13.3 Million People are enrolled in Medicare Advantage Plans. There are close to 50 million Medicare beneficiaries, so more than 1 in 4 is on a Medicare Advantage Plan compared to traditional Medicare. Furthermore, Medicare Advantage Plans are gaining members – almost 10% more enrollees over the last year. In terms of Part D Prescription Plans, the number of enrollees for 2012 is estimated it to be around 10.6 million. There are approximately 1,041 plans available from both traditional and Medicare Advantage Plans to choose from.

From a practical standpoint, the Avandia decision creates several challenges.

  1. How are Medicare’s interests protected in a Medicare Advantage case? Is the primary plan now exposed to repeat double damage claims any time the Part C or Part D plan makes payment that was part of a settlement? It would appear that an approved Liability Medicare Set Aside Arrangement (LMSA) would help, but rules are still yet to be developed by Medicare.
  2. Will the Medicare Advantage Plan negotiate or hold at 100% recovery rate? Now more than ever, we have an important reason to support Hadden v. U.S.
  3. How will Medicare contractor enhancements, such as the $300 exemption, Fixed Payment Option, or Self Calculate Option work in this arena? It is unknown, as MAP’s do not use Medicare contractors to pursue its recovery.

While these questions remain, Tower MSA Partners recognizes and will pursue conditional payments from MAP’s based on the following understanding:

  1. Tower MSA Partners will assist clients in recognizing a Medicare Advantage Plan and its demand letters.
    1. MAP demands are issued from the MAP directly, i.e., if the MAP is Humana, the demand will be issued on Humana letterhead.  This is unlike traditional Medicare conditional payment demands which are issued directly from CMS and on MSPRC letterhead.
    2. Forward all demand letters from MSPRC, as well as from any MAP or Part D provider when presented.
  2. Tower MSA Partners will be proactive in determining whether a MAP demand exists.
    1. Request enrollment/benefit history from claimants/plaintiffs prior to settlement.  As a Medicare beneficiary can move between traditional Medicare (Part A & B) and Medicare Advantage (Part C), the parties will need to clear both Medicare and Medicare Advantage, including Part D, for every case.
    2. Contact both MSPRC and MAP for conditional payment information.
    3. Follow the same protocols as are in place with traditional Medicare conditional payments to satisfy the interest of the MAP

Proactively addressing the claims of MAP’s in this manner will relieve much of the uncertainty surrounding their reimbursement rights.  For questions regarding conditional payment lien negotiations, MAP’s and Medicare Part D recovery, please contact Tower MSA Partners @ info@towermsa.com.

CMS Proposes Regulations Addressing Future Medicals in Liability Settlements

May 23, 2012

While text of the proposed rules have not yet been released, it appears that CMS has developed regulations that will ‘advise’ that parties must determine whether an allocation for future medicals exists within a gross liability award, and then document those efforts in a pre-defined format.  If this is the case, this would be the first CMS guidance on future medicals within liability settlements since the CMS memo of September, 2010.  If our suspicsions are correct, this represents a significant development in the MSP world.

Guidance as to how parties should address future medicals in liability settlements has been virtually non-existent until now. The first step, in play now,  inlcudes internal vetting within the Executive Branch of the federal government.  Following Executive Branch approval, CMS will release the proposed regulations to the settlement community for comment.  Each comment will be considered, and if appropriate, will lead to modifications and a new comment period prior to CMS enacting the regulation.

When available, a detailed analysis of the proposed regulation will be available on our website.

Coming Soon – The Medicare Secondary Payer Recovery Portal

May 17, 2012

A new online Self-Service Tool to help manage your Medicare recovery case.

The Centers for Medicare & Medicaid Services (CMS) is in the process of implementing a new web-based tool designed to assist in and accelerate the resolution of Liability Insurance, No-Fault Insurance, and Workers’ Compensation Medicare recovery cases. The new tool is called, The Medicare Secondary Payer Recovery Portal (MSPRP).

The MSPRP will give users (attorneys, insurers, beneficiaries, and TPAs) the ability to access and update certain case specific information online. Activities that currently require written communication or telephone calls to the Medicare Secondary Payer Recovery Contractor will soon be able to be done through the portal.
The MSPRP will allow users the ability to electronically perform the following activities:
•Submit Proof of Representation or Consent to Release documentation – Instead of mailing in an authorization, users will be able to upload authorizations through the portal.

•Request conditional payment information – Requesting an updated conditional payment amount or a copy of a current conditional payment letter will be as simple as clicking a few buttons.

•Dispute claims included in a conditional payment letter – Users will be able to view the claims listed on the conditional payment letter and dispute unrelated claims online.

•Submit case settlement information – Users will be able to input settlement information online and upload a copy of the settlement documentation through the portal.

The MSPRP is scheduled to go live in July 2012. Additional details regarding the MSPRP will be shared on this website in the coming months.

Tower MSA Partners will be part of the MSPRP rollout.  More details will follow as to how to utilize this new electronic service.

New Option to Self-Calculate Your Conditional Payment Amount

January 30, 2012

Just released from MSPRC (http://www.msprc.info/).

On February 21, 2012, the Centers for Medicare & Medicaid Services (CMS) will implement an option that allows certain Medicare beneficiaries to self-calculate Medicare’s final conditional payment amount prior to settlement. A full explanation, including instructions on how and when to elect this option can be found by clicking on the following link:

http://msprc.info/forms/SelfCalculatedFinalCP.pdf

The information provided includes eligibility criteria for this process, instructions on how to self-calculate the final conditional payment amount, CMS’ review process, tips, and an illustrative example for completing this new process.

CMS will continue to improve and refine this process. Therefore, we welcome your input and comments at a future teleconference.

Tower MSA Partners Seeks Experienced Salespeople

January 4, 2012

Tower MSA Partners is aggressively seeking experienced salespeople in both workers’ compensation and liability markets. Interested parties should forward their resumes to info@towermsa.com.  To speak with someone directly, please call 888-331-4941 and reference this post.
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New From MSPRC, A “Self-Calculated Final Conditional Payment Amount” Option

December 19, 2011

The Centers for Medicare & Medicaid Services (CMS) will be implementing an option that will allow certain Medicare beneficiaries to obtain Medicare’s final conditional payment amount prior to settlement. This option will be available in February 2012, for certain settlements involving physical trauma based injuries where treatment has been completed.

Under this option, the beneficiary or his representative will calculate the amount of Medicare’s conditional payment amount using information received from the Medicare Secondary Payer Recovery Contractor (MSPRC), the MyMedicare website, or other claims information available to the beneficiary. The MSPRC will review this amount and, if finding the amount accurate, will respond with Medicare’s final conditional payment amount within 60 days. To secure the final conditional payment amount, the beneficiary must settle within 60 days after the date of Medicare’s response.

In order to use this option, ALL of the following criteria must be met:

  1. The liability insurance (including self-insurance) settlement will be for a physical trauma based injury (the settlement does not relate to ingestion, exposure, or medical implant);
  2. The total liability settlement, judgment, award, or other payment will be $25,000 or less;
  3. The Date of Incident occurred at least six months before the beneficiary or his representative submits his proposed conditional payment amount to Medicare;
  4. The beneficiary demonstrates that treatment has been completed and no further treatment is expected either through a written physician attestation or by certifying in writing that no medical treatment related to the case has occurred for at least 90 days prior to submitting the proposed conditional payment amount to Medicare.

Explicit instructions on how to use this process will be posted on the Medicare Secondary Payer Recovery Contractor’s website at www.msprc.info by January 15, 2012. CMS will leverage existing processes to the greatest extent possible. This is an initial step to provide beneficiaries and their representatives with Medicare’s conditional payment amount prior to settlement. CMS plans to expand this option as it gains experience with this process.

New Fixed Percentage Option For Medicare’s Recovery Claim
Effective November 7, 2011, the Centers for Medicare & Medicaid Services has implemented a new and simple fixed percentage option that is available to certain beneficiaries. This option is available to beneficiaries who receive certain types of liability insurance (including self-insurance) settlements of $5000 or less.

A full explanation, including instructions on how and when to elect this option, is available in the Fixed Percentage Option section of both the Attorney and Beneficiary Toolkits.
Beneficiary Alert: $300 Threshold on Liability Settlements
Medicare has implemented a $300 threshold for certain Liability Insurance cases. If all of Medicare’s criteria are met, the MSPRC will not recover against the beneficiary’s settlement, judgment, award or other payment.

We have posted a detailed explanation in the Attorney and Insurer Toolkits.

Alert: Liability Insurance (Including Self-Insurance) and December 5, 1980 (12/5/1980):
Additional policy details have been provided by the Centers for Medicare & Medicaid Services on liability insurance (including self-insurance) cases involving exposure, ingestion, and implantation.  Click the link below to view the update.   http://www.msprc.info/forms/Exposure-Ingestion-TDL.pdf.

CMS Announces New Fixed Percentage Option For Medicare’s Recovery Claim

October 26, 2011

Certain beneficiaries will be able to resolve Medicare’s recovery claim by paying Medicare 25% of his/her total liability insurance settlement instead of using the traditional recovery process. This means that a beneficiary will know what he/she owes and will be able to immediately pay Medicare.

The Centers for Medicare & Medicaid Services announced that this new and simple fixed percentage option will be available to certain beneficiaries beginning November 7, 2011. This option is available to beneficiaries who receive certain types of liability insurance (including self-insurance) settlements of $5000 or less.

In order to elect this option to resolve Medicare’s recovery claim, the following criteria must be met:

1.The liability insurance (including self-insurance) settlement is for a physical trauma based injury. (This means that it does not relate to ingestion, exposure, or medical implant), and
2.The total liability settlement, judgment, award, or other payment is $5000 or less, and
3.The beneficiary elects the option within the required time frame and Medicare has not issued a demand letter or other request for reimbursement related to the incident, and
4.The beneficiary has not received and does not expect to receive any other settlements, judgments, awards, or other payments related to the incident.

A full explanation, including instructions on how and when to elect this option, will be available on this website on November 7, 2011 in the Fixed Percentage Option section of both the Attorney and Beneficiary Toolkits.

Please Note:When a beneficiary elects this option, he/she must understand that as part of choosing the option he/she will be giving up the right to appeal the fixed payment amount or request a waiver of recovery for the fixed payment amount.

Related:

CMS presentation on fixed percentage option

Liability Settlement Solutions