I’VE FALLEN AND I
CAN’T GET UP
Avoiding the Medicare Downfall!
By: Aaron Frederickson, Esq., MSCC
Medicare Secondary Payer Act
• 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!
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2
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
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3
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
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MSA Submission Guidelines
• Downfalls:
– Is a MSA “required”
– Knowing the law/working with counsel
– Losing a settlement over CMS delays
– The list is endless…
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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…
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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
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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
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The Conditional Payment challenge
• Solutions:
– MyMedicare.gov & www.MSPRC.info
– 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
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WCMSA Review Thresholds
• 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
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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”
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Liability Medicare Set-Asides (LMSAs)
• 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
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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)
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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
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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!
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Questions & Answers
Aaron Frederickson, Esq., MSCC
MSP Compliance Solutions, LLC
P.O. Box 491
St. Paul, MN 55014-0491
Phone: (651) 485-7036
aaron@mspComplianceSolutions.com
www.mspComplianceSolutions.com