News & Announcements
Bob Foulds, Dave Henderson and Ray Schmidlin Are Medicare Set-Aside Consultant Certified
Bob Foulds, Dave Henderson and Ray Schmidlin are some of the first Ohio attorneys to be certified by the International Commission on Health Care Certification as Medicare Set-Aside Consultant Certified (MSCC). The Medicare Set-aside Consultant Certified (MSCC) credential identifies those professionals who have achieved specific pre-approved training in Medicare Set-aside trust arrangements (MSAs), and have demonstrated a breadth of knowledge regarding the development and application of the Medicare set-aside trust arrangement process. Additionally, this credential is designed to express to the consumer that the person holding the MSCC credential has agreed to come under the scrutiny of a certifying review board (ICHCC), to be peer reviewed, and to adhere to a set of standards governing ethics and professional behaviors.
MSAs are the product of a meticulous review of the medical records by trained professionals who are then able to put the totality of the medical circumstances into a well-reasoned and fair submission for approval to the Centers for Medicare Services (CMS). The primary goal of a proper MSA proposal to CMS is to limit the exposure of settlement proceeds to exhaustion on the plaintiff/claimant’s future medical expenses. Thus, an MSA will segregate the projection for future, injury-related medical services and prescription drugs of the type covered by Medicare and use the projected costs for such items and services to arrive at a reasonable MSA funding amount. This information, with supporting documentation, is required for any CMS review of a proposed MSA. In each case, inadequate or inaccurate completion of an MSA or other submission to CMS can lead to a denial of benefits for a Medicare beneficiary and can lead to unwanted and perilous litigation.
The Medicare Secondary Payer Act (MSPA), as amended by the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA), provide that Medicare will not pay for any future medical expenses after a lump sum settlement is received until the total future medical expenses related to the employee’s injury equals the amount of the lump sum settlement which was allocated to future medical expenses. 42 C.F.R. §411.46(d)(2).
It is recommended that regular implementation of MSAs be adopted in the liability, no-fault, medpay, uninsured/underinsured and self-insured claims resolution process in order to demonstrate the parties involved reasonably considered Medicare’s lien interest at the time of settlement in order to avoid future litigation, including legal malpractice claims by the claimants and subrogation claims by CMS against the claimants, attorneys, insurers, and/or others involved in the claim.
Please contact Bob, Dave or Ray if you have any questions regarding the MSA process, reporting requirements under the MMSEA, or other questions concerning the Medicare Secondary Payer Act and its ramifications on personal injury settlements.
MSPA RRE Reporting Requirements for Loss of Consortium Claims - Be Careful When Drafting the Release
07/01/2010
During a June 30, 2010 Town Hall teleconference put on by or on behalf of Centers for Medicare and Medicaid Services (“CMS”), CMS representatives addressed Medicare Secondary Payer Act reporting responsibilities pertaining to loss of consortium claims. CMS requires RREs to report such claims only if the language in the release executed by a loss of consortium claimant can be interpreted to mean the non-injured spouse is accepting settlement funds in exchange for a release of claims for medical payments and/or person injury claims, even if no such claims were ever made. For instance, many carriers and practitioners use standard releases where, for instance, a spouse or child has a personal injury claim and the other spouse or parent presents a loss of consortium claim. Such standard releases usually indicate all of the parties to the settlement “hereby release, waive and relinquish all claims for personal injury, loss of consortium, wrongful death” etc. If such releases are used once the RRE reporting period begins in 2011, then the RRE will have to separately report both claims – that of the injured party and the party claiming loss of consortium Therefore, it is advised that any release submitted to a claimant whose sole claim is for loss of consortium, property damage or some other non-medical/non-injury claim, strictly identify the claim(s) being released and specify that the payment thereto does not pertain to an injury or for medical expenses incurred by that claimant. This will prevent reporting errors and an exposure to fines for failing to report. Please contact me if you or your company requires a review and/or revision of its standardized releases.
David B. Henderson - dhenderson@dsf-law.com
CMS Extends MMSEA Section 111 Reporting Deadline for First Production Claims Input Files
The Centers for Medicare and Medicaid Services (CMS) posted an announcement on February 17, 2010, pertaining to MMSEA Section 111 Reporting. The announcement indicates that the date for First Production of Claims Input Files has been extended to January 1, 2011. The previously-established date was April 1, 2010. CMS advises further that the new version of the Section 111 User Guide (V. 3.0), as well as other Alerts and materials, will be published during the week of February 22, 2010.
The announcement pertains only to the First Production date and does not alter the time definitions of a claim deemed reportable under MMSEA Section 111. Therefore, assuming that there is nothing to the contrary contained in next week’s materials, the regulations still provide that claims resolved on or after January 1, 2010, generically described as Total Payment Obligation to the Claimant (TPOC; i.e., settlement) will be subject to Section 111 reporting. Claims that are defined under Section 111 regulations as Ongoing Responsibility for Medicals (ORM) will also be reportable if the ORM was extant as of July 1, 2009. CMS encourages RREs to file Section 111 reports in 2010 in advance of the mandatory reporting deadline that is now set, as noted, for January 1, 2011.
CMS advises that obligations remain on a Responsible Reporting Entity (RRE) in 2010 to ensure ongoing compliance with the mandates of Section 111, including but not limited to registration and testing, regardless of the extension to First Production date.
The obligations imposed upon parties and insurers under the new statute, and the penalties for non-compliance go beyond the RRE reporting requirements and extend to all aspects of claims adjusting/settlement practices.
Please contact us if you have any questions.
RECENT DEVELOPMENTS RE: The Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007
06/28/2010
I. New Direct Data Entry (DDE) Option for “Small Reporters” -- Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation
A. Eligible Reporters
The DDE option is open to all current and new RREs that meet the definition of a “Small Reporter.” A “Small Reporter” is an RRE that will submit 500 or fewer NGHP claim reports per calendar year. The “Query” discussion below (section I.C.3.) provides further information on how this total of 500 is counted.
B. Benefit of the DDE Option – Simplification of Reporting Process
Small Reporters will be able to use the Section 111 Coordination of Benefits Secure Website (COBSW) at www.Section111.cms.hhs.gov to manually enter and submit individual NGHP claim reports online instead of submitting an electronic file. The DDE Option is in lieu of using one of the file submission methods currently available (HTTPS, SFTP, Connect:Direct). Small Reporters will be required to report the same data elements as those required under the file submission methods by manually keying the information into COBSW pages/screens.
C. How Does the DDE Option Differ From the Current File Submission Method?
1. Testing: No testing will be required for RREs using the DDE option.
2. DDE Submission: There is no assigned submission window. Claim information will be submitted one claim report at a time as soon as the conditions related to the claim require reporting under Section 111. Claim record submissions are required within 45 calendar days of the Total Payment Obligation to the Claimant (TPOC) date or within 45 calendar days of assuming Ongoing Responsibility for Medicals (ORM). Exception: Since retroactive reporting is required for certain ORM (ORM exists at any time prior to 1/1/2010 and continues on or after 1/1/2010) and certain TPOC Amounts (TPOC dates from 10/1/2010 through 12/31/2010), an exception will be made for these claim records to be reported outside the 45 calendar day grace period. However, information for these ORMs and TPOCs must be submitted during the first calendar quarter of 2011. (Please refer to the NGHP User Guide for further details on these dates.)
ORM termination date submission is required within 45 calendar days of the ORM termination date.
3. Query: A separate query function will not be available under the DDE option. Injured party information will be matched real-time online as it is entered on the COBSW. The application will prompt the user performing the data entry to enter the injured party’s information first. Then, the system will attempt to match it to a Medicare beneficiary. If no match is found and the user confirms that the information they entered was complete and accurate, no further data elements will be required at that time. A “non-match” will essentially be like receiving a “51” disposition code back on a Claim Response File. When an injured party’s information does not match to a Medicare beneficiary during the DDE process, it WILL count toward the RRE’s limit of 500 claims per year.
C. Registration for DDE Option – When Can “Small Reporters” Register?
Small Reporters may register for DDE as a reporting option on the Section 111 COBSW beginning October 1, 2010.
1. Selecting DDE Option if Already Registered as an RRE
If an RRE has already registered under the current file transmission methods and wants to change to the DDE option, the Account Manager for the RRE ID should log into the COBSW on or after October 4, 2010 and change the reporting method from a file transmission method to DDE.
2. Selecting DDE Option if Not Registered as an RRE
If an RRE has not previously registered, the Account Manager should select DDE during the Account Setup step of the registration process.
D. When Can “Small Reporters” Begin Reporting Using the DDE Option?
Small Reporters may begin reporting using the DDE option on January 3, 2011.
E. Issues to Consider Before Selecting the DDE Option:
1. Small Reporters that use the DDE option have the same responsibility and accountability as any other RRE.
2. Small Reporters will be required to report the same data elements as those required under the current file submission methods (HTTPS, SFTP, Connect:Direct). Due to the number of data elements required, the manual data entry for a single claim report may take a considerable amount of time. Small Reporters should also consider the requirement for retroactive reporting during the first calendar quarter of 2011.
3. Note- Small Reporters will have the ability to save an individual claim report that is in progress for 30 calendar days.
4. The DDE option is intended for RREs who expect to have only an occasional claim report to make. RREs that will have claims to report on a frequent and on-going basis are advised to use the current file submission methods instead of the DDE option to ensure that RREs are able to adhere to the timely reporting requirements.
5. There is a very real limitation to RREs that select the DDE option because a Small Reporter may only submit 500 or less claim reports per calendar year, and that claim reports resulting in a “no beneficiary match” count against the 500 claim report limit. The DDE option is not an appropriate choice for RREs that may submit more than 500 claim reports per year and plan to rely upon the query capability for Section 111 reporting.
II. ALERT RE: WHO MUST REPORT
This following language replaces Section 7.1 of the NGHP User Guide regarding “Who Must Report.”
A. General:
42 U.S.C. 1395y(b)(8) provides that the “applicable plan” is the RRE and defines “applicable plan” as follows: “APPLICABLE PLAN- In this paragraph, the term `applicable plan' means the following laws, plans, or other arrangements, including the fiduciary or administrator for such law, plan, or arrangement:
(i) Liability insurance (including self-insurance).
(ii) No fault insurance.
(iii) Workers' compensation laws or plans.
• You must use the information in this Section as well as the applicable statutory language in conjunction with Appendix G (Definitions and Reporting Responsibilities) in order to determine if you are a RRE for purposes of these new provisions. The statutory language is available in Appendix F.
• CMS is aware that the industry generally does not use the term “plan” or some other CMS definitions such as the definitions for “no-fault insurance” or “self-insurance.” However, CMS is constrained by the language of the applicable statute and CMS’ regulations. It is critical that you understand and utilize CMS’ definitions for purposes of Section 111 when reviewing and implementing Section 111 instructions.
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