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Published byGerard Turbeville Modified over 9 years ago
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UPDATE ON MEDICARE’S REPORTING REQUIREMENTS SC Self-Insurers Association, Inc. General Membership Meeting November 4, 2010 Daniel W. Hayes, Esquire
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Updates since April 21-23, 2010 Members Only Forum: Various Alerts issued by CMS www.cms.gov/MandatoryInsRep/ www.cms.gov/MandatoryInsRep/ U.S. v. Stricker decision (filed September 30, 2010)
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Mediation 09.14.2010 Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 Section 111 of the MMSEA What is the SCHIP? “ State Children’s Health Insurance Program” Purpose? Safeguard against shifting burden for ongoing medical care from primary payer to Medicare Section 111 is in addition to other MSP provisions (MSA allocation, etc.) We’re interested in how it impacts Non-Group Health Plans (NGHPs)
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What is reportable? Settlements, judgments, and awards to Medicare recipients: Because Medicare recipient, likelihood of: conditional (past) medical payments and Obligation for future medical payments (must consider MSA allocation, but reviewable by CMS only if amount of settlement > $25,000) Applies if TPOC (Total Payment Obligation to Claimant) exists on or after 10/01/10 In general, TPOC = date settlement is signed, award/judgment filed Also applies if ORM (Ongoing Responsibility for Medicals) exists on or after 01/01/10 What about mass torts, class actions settlements? (See U.S. v. Stricker)
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Refresher: CMS Memo: March 29, 2010 “Revised Implementation Timeline” Two categories: (1) Group Health Plan (GHP) (2) Non-GHP, or NGHP Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers’ Compensation
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CMS Memo: March 29, 2010 (cont’d) “Revised Implementation Timeline” “Claim Input File” testing 01/01/10 – 12/31/10 System will go “live” 01/01/11 All initial claims must be submitted 01/01/11 to 03/31/11 according to assigned timeframes for RRE’s (Responsible Reporting Entities)
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CMS Memo: April 6, 2010 Collection of HICNs, SSNs, and EINs HICN: Medicare Health Insurance Claim Number SSN: Social Security Number EIN: Tax Identification Number (actually Employer Identification Number) Collection of this information is proper for purposes of compliance with reporting requirements under Section 111
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Mediation 09.14.2010 New MMSEA 111 Alerts since the Members Only Forum May 27, 2010 June 14, 2010
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MMSEA 111 Alert: 05/27/10 Alert for RRE’s of Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation RRE does not report regularly scheduled periodic payments, pursuant to statute, for obligation other than medical expenses (Ex) weekly TTD; weekly payment of permanency award But must separately report ORM (Ongoing Responsibility for Medicals) Periodic “indemnity only” payments raises inference of ORM Periodic payments not reported as TPOC (Total Payment Obligation to Claimant)
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MMSEA 111 Alert: 06/14/10 RRE ID Accountability and Other Registration Material What to do if RRD creates ID’s unintentionally Each RRE ID requires full compliance Use of agent by RRE Changing information for RRE with COBC (Coordination of Benefits Contractor)
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Mediation 09.14.2010 New NGHP (Non-Group Health Plan) Alerts since Members Only Forum May 25, 2010 May 26, 2010 (x 3) September 16, 2010
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NGHP Alert: 05/25/10 New Direct Data Entry (DDE) Option for NGHP Available for “Small Reporters” RRE who expects to have only an occasional claim report to make May only submit 500 or less claim reports per calendar year If injured party’s information does not match a Medicare beneficiary, counts toward the 500 claims limit (essentially like a “51” disposition code) DDE reporting may begin 01/03/11 No testing will be required
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NGHP Alert: 05/26/10 (#1) Revision to 02/24/10 Alert Includes that entities with insurance plan with deductible are no longer required to report Reported by entities’ insurer Self-insured entities must continue to report Whether TPA is considered RRE Generally, NO But see, state’s Assigned Claims Fund Different under GHP arrangements, where TPA is the RRE
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NGHP Alert: 05/26/10 (#2) Risk Management Write-Offs for NGHPs “reduction in the amount due as a risk management tool” constitutes liability self-insurance for purposes of Medicare Secondary Payer provisions Intended by risk management to lessen probability of liability claim against it or facilitate/enhance good will Provider reduces or W/O portion of charge to Medicare Provide property of value to Medicare beneficiary where reasonable to expect will seek medical care
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NGHP Alert: 05/26/10 (#3) Clinical Trials & NGHPs If payments are made by sponsors of clinical trials for complications or injuries arising out of the trials, considered payment by liability insurance (including self-insurance) Must be reported
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NGHP Alert: 09/16/10 Further definition of “Small Reporter” for purpose of Direct Data Entry (DDE) Registration overview for DDEs Further considerations for DDEs
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United States of America v. James J. Stricker, et al. “Memorandum Opinion Granting Certain Defendants’ Motions to Dismiss” Filed with U.S. District Court N.D. of Alabama, 09/30/10 FN 1: “Not all defendants filed motions to dismiss. The court does not presume to know why....” “Accordingly, the decision set forth in this Memorandum Opinion and accompanying Order does not apply to those Defendants.”
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U.S. v. Stricker BACKGROUND 2003 underlying class action tort settlement Monsanto Company and its predecessors produced PCB’s (Polychlorinated biphenyls) at a chemical manufacturing plant one mile west of downtown Anniston, AL The EPA determined PCB exposure could cause health dangers including cancer, decreased fertility, still births, and birth defects 1000’s of toxic-tort actions filed in Alabama against Monsanto and predecessor companies
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U.S. v. Stricker All cases were consolidated in both Alabama state and federal courts Global settlement reached on 08/20/03 $300 million Involved combined total of more than 20,500 people $275K placed in Court trust; remainder to be paid in annual installments through 2013 Conditions to release: Funds released into attorney-maintained trust once 75% of adult plaintiffs signed releases Could be disbursed to plaintiffs once court approved all minor settlements and 97% of releases signed
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U.S. v. Stricker Department of Justice filed suit 12/01/09 against plaintiff attorneys and defendant corporations/insurance carriers under Medicare Secondary Payer statute Alleged 907 unnamed recipients also received Medicare payments for unidentified medical expenses related to PCB contamination (Some) defendants filed Motion to Dismiss based upon statute of limitations
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U.S. v. Stricker Issues for Court: (1) What SOL applies to each class of defendants (corporate defendants, plaintiff attorneys)? (2) When did the government’s cause of action accrue for each class of defendants?
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U.S. v. Stricker MSPA does not include a SOL Parties agreed SOL under the “Federal Claims Collection Act” would apply 3 years if founded upon tort; 6 years if founded upon contract
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U.S. v. Stricker Corporate Defendants: No express contract between government and corporate defendants Any reimbursement duties based solely on MSP statute Liability, if any, arises out of defendants’ liability in tort settlement “But for” the tort liability, no liability for reimbursement So, 3 year statute of limitations applies under tort
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U.S. v. Stricker When did government’s cause of action accrue against corporate defendants? Court focused on determining at what point did defendants’ responsibility to pay arise in relation to the underlying class-action settlement For corporate defendants, accrued on date settlement agreement executed and approved by Court on 08/20/03 So even if 6 year SOL applied, government lawsuit filed 12/01/09 would have been barred
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U.S. v. Stricker Plaintiff Attorneys: Conceded 6-year statute of limitations based upon contractual nature of attorney fees received from their clients So, issue is when did government’s cause of action accrue against plaintiff attorneys?
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U.S. v. Stricker Government argued no responsibility to pay arose until 12/02/03, when all minor settlements were approved by court, 97% of plaintiffs had signed releases, and funds could be disbursed DOJ lawsuit filed 12/01/09--- one day prior to 6 years later Settlement was “conditional” The Court did not agree 97% certification was “condition subsequent” to contract Did not affect overall enforceability of settlement agreement
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U.S. v. Stricker Government’s right to intervene against plaintiff’s attorneys accrued no later than 10/29/03, when funds transferred from Court into attorneys’ escrow account Lawsuit filed against plaintiff attorneys on 12/01/09 barred by 6-year SOL
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Why is U.S. v. Stricker important? Provides framework for calculating government’s statute of limitations for filing lawsuits to collect reimbursement When applied in context of mandatory reporting requirements, may be able to calculate either 3-year or 6-year SOL’s based upon date of Total Payment Obligation of Claimant (TPOC), or when settlement agreement is signed (or award/judgment filed) Likely 3-year SOL applicable to corporate defendants/carriers Likely 6-year SOL applicable to plaintiff attorneys Shows the government can be defeated on MSP lawsuits (but not over yet... )
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