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I’VE FALLEN AND I CAN’T GET UP Avoiding the Medicare Downfall! By: Aaron Frederickson, Esq., MSCC.

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Presentation on theme: "I’VE FALLEN AND I CAN’T GET UP Avoiding the Medicare Downfall! By: Aaron Frederickson, Esq., MSCC."— Presentation transcript:

1 I’VE FALLEN AND I CAN’T GET UP Avoiding the Medicare Downfall! By: Aaron Frederickson, Esq., MSCC

2 The MSP has been around since the 1980s—have you been in compliance? Like it or not, the MSP is here to stay Additional laws like the MMSEA/Section 111 Reporting guidelines have complicated claims handling CMS/Medicare has provided little guidance Questions on LMSAs and review thresholds Inconsistent information from Medicare ROs Many more issues make your job difficult! Medicare Secondary Payer Act ©MSP Compliance Solutions, LLC/All Rights Reserved2

3 Medicare Secondary Payer Act Common Medicare “downfalls” – What is your Medicare status? – MSA Submission guidelines – The Conditional Payment challenge – WCMSA Review Thresholds – Liability Medicare Set-Asides (LMSAs) – Preparing for mediation, settlement or hearing Questions & Answers ©MSP Compliance Solutions, LLC/All Rights Reserved3

4 What is your Medicare status? Downfalls: Identifying Medicare issues as soon as possible/asking the right questions. Claims handlers are front line soldiers Solutions: – Investigation/Recorded Statements/Depositions – Section 111 Reporting Verification form – Effective discovery – Anticipate Medicare “issues” at the beginning of the claims process ©MSP Compliance Solutions, LLC/All Rights Reserved4

5 MSA Submission Guidelines Downfalls: – Is a MSA “required” – Knowing the law/working with counsel – Losing a settlement over CMS delays – The list is endless… ©MSP Compliance Solutions, LLC/All Rights Reserved5

6 MSA Submission Guidelines Solutions: – Risk analysis on submitting MSA for review – Knowing office policy and procedures – Communication with counsel (and the other parties) – Anticipate issues in mixed liability/WC cases – The key is planning ahead and anticipate, anticipate, anticipate… ©MSP Compliance Solutions, LLC/All Rights Reserved6

7 The Conditional Payment challenge Downfalls: – Conditional payments arises when you least expect them – Timely notice to the COBC, or who is responsible to give notice – Use of the correct ICD-9 codes – Delays with the MSPRC – Compromise and waiver ©MSP Compliance Solutions, LLC/All Rights Reserved7

8 The Conditional Payment challenge Solutions: – Place the COBC/Medicare on notice with correct ICD-9 codes – Follow-up with the MSPRC – Coordination of MSP compliance with counsel and vendors – Careful review of Conditional Payment Letter for incorrect/erroneous payments by Medicare ©MSP Compliance Solutions, LLC/All Rights Reserved8

9 The Conditional Payment challenge Solutions: – & – New option to self-calculate your Conditional Payment amount – The Medicare Secondary Payer Recovery Portal (July 2012) – The Three P’s: Patience, Persistence and Perseverance ©MSP Compliance Solutions, LLC/All Rights Reserved9

10 Downfalls: – Understand the CMS review thresholds and how settlement may affect your claim – CMS policy vs. Company policy – Prior payments (or payments mistakenly made) – $25,000 or $250,000; which one applies to my case? – Below “review threshold” cases WCMSA Review Thresholds ©MSP Compliance Solutions, LLC/All Rights Reserved10

11 WCMSA Review Thresholds Solutions: – Communicate company policy on MSAs to defense counsel – Review legal arguments and assert rationale from the beginning of the process – Understanding the different review thresholds and applying it to the facts – MSA submissions are not “required” ©MSP Compliance Solutions, LLC/All Rights Reserved11

12 Downfalls: – LMSAs are an evolving area that remains untested – “Reimbursement” statute vs. “Coordination of Benefits” statute – Code of Federal Regulations = Silent! – Lack of Medicare guidance/statutory authority Stalcup Memo Benson Memo Liability Medicare Set-Asides (LMSAs) ©MSP Compliance Solutions, LLC/All Rights Reserved12

13 Liability Medicare Set-Asides (LMSAs) Solutions: – Careful evaluation/risk tolerance in each instance – Section 111 Reporting does not equal LMSAs – Declaratory actions in federal courts – Notice of hearings to CMS/Medicare – Avoiding BAD FAITH! – Malpractice avoidance/risk (attorneys) ©MSP Compliance Solutions, LLC/All Rights Reserved13

14 Preparing for mediation, settlement or hearing Downfalls: – MSP/MMSEA Section 111 Reporting has caused nightmares for the insurance industry – Failure to accurately set reserves – Failure to anticipate MSP issues in a timely manner – Thinking about “goals” of settlement and how to reach achieve those goals – Failure to obtain Medicare information ©MSP Compliance Solutions, LLC/All Rights Reserved14

15 Preparing for mediation, settlement or hearing Solutions: – Medical cost projections (to set reserves), life care planning and medical allocations – Early discussions regarding MSP compliance – Follow-up with MSPRC regarding conditional payment information – Discussion of goals early in claims process – MSP audit/review – Don’t be a Ms. Fletcher! ©MSP Compliance Solutions, LLC/All Rights Reserved15

16 Questions & Answers Aaron Frederickson, Esq., MSCC MSP Compliance Solutions, LLC P.O. Box 491 St. Paul, MN 55014-0491 Phone: (651) 485-7036

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