ACSBA Conference
June 22, 2013
Lucy Hester Sellers, JD lhs@hestersellers.com
(205) 454-6052
Lucy Hester Sellers
Attorney at Law

• CMS: Centers for Medicare & Medicaid Services
– Federal agency that oversees the Medicare program
• Medicare
– Health insurance program for:
• People age 65 and older
• People under age 65 with certain disabilities
• People of all ages with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a kidney transplant)
– Under certain circumstances a minor may be a Medicare beneficiary
– An individual may simultaneously be both a Medicare and a Medicaid beneficiary, known as “dual eligible.”
• Do NOT assume a claimant/plaintiff is not a Medicare beneficiary based solely on age, Medicaid status, or other commercial health insurance coverage status.
Lucy Hester Sellers
Attorney at Law

• Part A – Hospital Insurance
– Most beneficiaries do not pay a premium due to having paid Medicare taxes while working
– Beneficiaries may purchase Part A coverage if also purchasing Part B coverage
• Part B – Medical Insurance
– Most beneficiaries pay a premium
Lucy Hester Sellers
Attorney at Law

• Part C – Medicare Advantage
– Offered by private companies approved by Medicare
• Examples: HealthSpring Preferred, HumanaChoice, Blue Advantage
Premier, Viva Medicare
– Includes hospital insurance (Part A), medical insurance (Part B), and may offer extra coverage, such as vision, hearing, dental, and/or health and wellness programs
– Most also include prescription drug coverage (Part D)
– CMS reporting still triggered
• Part D – Medicare Prescription Drug Coverage
• http://www.medicare.gov/navigation/medicarebasics/medicare-benefits/medicare-benefitsoverview.aspx
Lucy Hester Sellers
Attorney at Law

• MSP is the term used when the Medicare program does not have primary payment responsibility, in other words another entity has the responsibility for paying before
Medicare.
• Medicare is the secondary payer to:
– Group health plan coverage (in certain situations)
– Liability insurance (including self-insurance)
(always)
– No-fault insurance (always)
– Workers’ compensation (always)
Lucy Hester Sellers
Attorney at Law

• Medicare Secondary Payer Mandatory Reporting Provisions of
Section 111 of the Medicare, Medicaid, and SCHIP Extension
Act of 2007 (See 42 U.S.C. 1395y(b)(7) & (b)(8)) (MMSEA)
• Effective January 1, 2009 (GHP) and July 1, 2009 (NGHP)
• Mandates specific reporting requirements with respect to:
– Medicare beneficiaries who have coverage under group health plan
(GHP) arrangements
– Medicare beneficiaries who receive settlements, judgments, awards, or other payment from liability insurance (including self-insurance), no-fault insurance, and workers’ compensation (NGHP)
• Reporting is to assist CMS and other insurance or coverage plans to properly coordinate payment of benefits among plans so that a beneficiary’s claims are paid promptly and correctly.
Lucy Hester Sellers
Attorney at Law

• MSPRC (Medicare Secondary Payer Recovery Contractor) and
Medicare’s Coordination of Benefits (COB)
– Medicare may make conditional payments on behalf of Medicare beneficiaries and MSPRC is responsible for recovery of amounts owed to Medicare.
– Medicare beneficiaries must establish their case with COBC and will receive a
Rights and Responsibilities (RAR) Letter, and within 65 days will automatically receive a Conditional Payment Letter (CPL).
– Medicare beneficiaries that receive a liability settlement, judgment, award, or other payment have an obligation to refund associated conditional payments within 60 days of receipt of such settlement, judgment, award, or other payment.
– Old Website: http://www.msprc.info/
– New Website: http://www.cms.gov/
• Medicare Secondary Payer Recovery Portal: https://www.cob.cms.hhs.gov/MSPRP/
– Medicare beneficiaries and their attorneys may utilize the MSPRP to obtain the CMS Conditional Payment amounts and Demand.
Lucy Hester Sellers
Attorney at Law

• ARMS is a self-funded risk management trust through which Alabama public boards of education elect to participate and self-insure selected liability exposures.
• ARMS is a not-for-profit, tax-exempt trust
• ARMS is member owned and member governed
• ARMS is NOT an insurance company nor an “insurer”
• ARMS coverage is NOT “insurance”
• ARMS Members are NOT “insureds”
• Member boards contribute fund contributions, NOT
“premiums”
Lucy Hester Sellers
Attorney at Law

• As a self-funded risk management trust (or self-insurance pool) through which Member boards of education selfinsure selected liability exposures, ARMS is a Responsible
Reporting Entity (RRE) for purposes of Section 111.
• ARMS liability coverage (both GL/EO and Auto) is
“liability insurance” pursuant to 42 C.F.R. Part 411.50 where ARMS “provides payment based on legal liability for injury or illness or damage to property….”
• Medical payments coverage included in the ARMS
Automobile Liability Fund coverage is considered a nofault ongoing-responsibility for medicals (ORM) for reporting purposes of Section 111.
Lucy Hester Sellers
Attorney at Law

• Boards of education may be RREs and responsible for reporting settlements, judgments, awards, and other payments to CMS.
• If a board settles a claim or lawsuit separate and apart from ARMS, the board of education is responsible for reporting the settlement to CMS.
• The entity that must report is generally the entity that makes the actual physical payment, rather than to who/which entity ultimately funds the payment.
However, all RREs involved in a settlement must remain responsible for their own reporting.
Lucy Hester Sellers
Attorney at Law

• Section 111 reporting is triggered:
– Where the injured party is (or was) a Medicare beneficiary, and
– Medicals are claimed and/or released OR the settlement, judgment,
award, or the payment has the effect of releasing medicals, regardless of whether or not there is an admission or determination of liability.
• Death does not preclude Section 111 reporting requirements.
Reporting may be triggered when the injured party/Medicare beneficiary is deceased and the claimant is the beneficiary’s estate or another individual/entity.
• Claims within a complaint do not solely dictate the requirement to report.
• Reporting is required whether there is full or partial resolution to the claim.
Lucy Hester Sellers
Attorney at Law

• NGHP Total Payment Obligation to Claimant
(TPOC) settlements, judgments, awards, or other payments are reportable once the following criteria are met:
– The alleged injured/harmed individual to or on whose behalf payment will be made has been identified
– The TPOC Amount for that individual has been identified
• TPOC Date is the date the payment obligation is established, which is the date the obligation is signed if there is a written agreement, unless court approval is required. In which case it is the later of the date the obligation is signed or the date of court approval. If there is no written agreement, it is the date the payment is issued.
Lucy Hester Sellers
Attorney at Law

• Failure to report with respect to any claimant results in a civil money penalty of $1,000 for each day of noncompliance with respect to each claimant.
• 42 U.S.C. 1395y(b)(8)
• Section 111(a)(8)(E)
Lucy Hester Sellers
Attorney at Law

• No-fault On-going Responsibility for Medicals
(ORM) – None
• No-fault Total Payment Obligations to
Claimant (TPOC) – None
• Liability TPOC
Total TPOC Amount TPOC Date On or After Reporting Required Beginning
TPOCs over $5,000 October 1, 2012 January 1, 2013
TPOCs over $2,000
TPOCs over $300
October 1, 2013
October 1, 2014
January 1, 2014
January 1, 2015
Lucy Hester Sellers
Attorney at Law

• Plaintiff/claimant full name
• Whether or not they have ever been enrolled in
Medicare
• Social Security Number
• Medicare Claim Number (if applicable)
• Date of Birth
• Gender
• If the plaintiff/claimant is a minor, the same information is required of both the minor plaintiff/claimant and the minor’s legal guardian.
Lucy Hester Sellers
Attorney at Law

Lucy Hester Sellers
Attorney at Law

• During initial discovery or early in the claim process so that the defense may ensure that the plaintiff’s counsel properly requests a conditional payment letter from CMS and so that the defense is aware of any conditional payment amounts paid by CMS or liens initiated by CMS.
• If any payment is to be made, prior to drafting or advising execution of a release or settlement agreement with broad or general language that in any way can be viewed as having the effect of releasing medicals, obtain affirmation of the
Medicare beneficiary status of the releasing parties. If one or more parties is a Medicare beneficiary it must be determined whether Medicare has any liens or has made any conditional payments to which it is entitled all or a share of any settlement amount.
Lucy Hester Sellers
Attorney at Law

• Include language in all releases/settlement agreements whereby the plaintiff(s) / claimant(s) re-affirm Medicare beneficiary status
– Claimant warrants and represents that he/she [is not and has not previously been / is currently] a
Medicare beneficiary.
• If plaintiff/claimant is a Medicare beneficiary include language addressing liens and claims by Medicare
Lucy Hester Sellers
Attorney at Law

It is the purpose and intention of the parties that the Released Parties shall not either directly or indirectly, under any device, form of action, or proceeding, present or future, be liable for or be required to make any further payment of monies in any way arising in whole or in part out of or resulting from any and all losses or expenses related to the Incident, whether now known or unknown, including but not limited to any claim by the Centers for Medicare and Medicaid Services, and its agents, representatives, and assigns, for interest or payment of any type or kind, any claim by other third parties for payment of any type or kind, or any claim by Claimant for payment of any type or kind.
Claimant warrants and represents that he/she [is not and has not previously been / is currently] a
Medicare beneficiary.
Any and all liens or claims for interest, payment, or repayment by Medicare, including its agents, representatives, and assigns, any other third party or entity, or Claimant, including but not limited to medical expenses or other expenses or costs of any type that may exist now or in the future will be the sole responsibility of the Claimant and Claimant does hereby agree to indemnify and hold the Released
Parties harmless for payment or repayment of any and all expenses, interest, or other payments of any type to the Centers for Medicare and Medicaid Services or its subsidiaries, agents, representatives, and assigns, any other third party provider of medical services, any other entity or individual providing goods or services of any type arising in whole or in part from the Incident, or any other individual or entity that previously made, will make, or is requesting payment of any type arising in whole or in part from or surrounding the Incident.
Lucy Hester Sellers
Attorney at Law

• CMS reporting requirements triggered when a plaintiff or claimant is (or was) a Medicare beneficiary and medicals are claimed and/or released OR the settlement, judgment, award, or the payment has
the effect of releasing medicals.
• A broad settlement or release document may have the effect of releasing medicals and therefore trigger reporting requirements on behalf of ARMS and/or the board.
• ARMS requests the Medicare beneficiary status and supporting information of all plaintiffs/claimants at the outset of litigation/claim. For litigated claims the information should be obtained through discovery.
• Plaintiffs/claimants should re-affirm Medicare beneficiary status in execution of settlement agreement or release.
• ARMS requires affirmation of Medicare beneficiary status prior to issuance of any settlement proceeds.
• ARMS may require CMS approval of settlement amount prior to issuance of any settlement proceeds.
Lucy Hester Sellers
Attorney at Law

Lucy Hester Sellers
Attorney at Law