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NEWS

CMS Issues First Guidance for Liability Medicare Set-Aside

On September 30, 2011, the Centers for Medicare & Medicaid Services (“CMS”) issued its first guidance about the use of Liability Medicare Set-aside Arrangements (“LMSAs”). This one page document provides information about the propriety of an LMSA when a treating physician has opined about a claimant’s future injury-related care needs. This memorandum also serves as CMS’s first attempt to address the key questions surrounding LMSAs.

The memorandum advises that when a treating physician opines in writing that a claimant will not require any future injury-related care as of the date of claim resolution, then CMS considers its future interest to have been fully considered and satisfied. If that claimant resolves subsequent claims, the treating physician must provide another certification as of the date of that subsequent resolution. Furthermore, when a treating physician makes such certification, there is no need to submit the MSA proposal / certification to CMS for review and approval as CMS will refuse to review any such submission. Instead, the parties can rely on the certification from the treating physician, and should use that certification to document their files and memorialize the fact that Medicare’s future interest has been considered and satisfied.

The scope of this memorandum is limited to cases where the treating physician has opined that no future injury-related care is needed post-resolution. It does not contemplate cases where the parties have no such certification from the treating physician. However, with this memorandum, CMS has provided the first formal indications that there are rules surrounding the use and propriety of LMSAs. Parties can no longer rely on the fact that CMS has never issued guidance regarding LMSAs. Therefore, parties should have a formalized process in place for the review of LMSA issues as part of its formalized process for addressing other Medicare Secondary Payer issues (conditional payment reimbursement and MMSEA Section 111 reporting).

The DRI Medicare Secondary Payer Task Force continues to monitor LMSA developments, and will report any future developments to the DRI community.

CMS Extends Deadline Again

The Centers for Medicare and Medicaid Services ("CMS") posted an alert (the "Alert") that confirms that there has been an extension, in certain cases, of the reporting trigger date for Mandatory Insurer Reporting ("MIR") under Section 111 of the MMSEA. The Alert provides the new trigger dates based on gross settlement/judgment/other payment ("TPOC") values for claims as follows:

The implementation timeline for reporting will be based on the TPOC amount. Below is a schedule of the new dates.

  • For TPOCs between $5,000 and $25,000 - the trigger date is Oct. 1, 2012 (with MIR starting the First Quarter, 2013);
  • For TPOCs between $25,001 and $50,000 - the trigger date is July 1, 2012 (with MIR starting the Fourth Quarter, 2012);
  • For TPOCs between $50,001 and $100,000 - the trigger date is April 1, 2012 (with MIR starting the Third Quarter, 2012); and
  • For TPOCs of $100,001 and above - the trigger date remains the same - Oct 1, 2011 (with MIR starting the First Quarter, 2012).

Below are examples of how these provisions will work:

  • Example 1: If you settle a TPOC for $15,000 before October 1, 2011, you are not required to report that claim. You may voluntarily report, but mandatory reporting (and the penalties associated therewith) would not apply until you settled that $15,000 claim on or after October 1, 2012.
  • Example 2: If you settle a $115,000 TPOC on or after October 1, 2011, mandatory reporting occurs no later than the submission window assigned during the first quarter of 2012. The chart (in the Alert) is intended to let you know when a failure to report would trigger penalties. Penalties, therefore, could be levied if the RRE settles a TPOC of $100,000 or more, on or after October 1, 2011, and the RRE does not report under Section 111 during the reporting period in the first quarter of 2012.

The DRI Medicare Secondary Payer Task Force will continue to follow these issues and provide guidance to the DRI Community as new Alerts are posted.

MSPRC Announces $300 Threshold for Liability Settlements

CMS Issues 3.2 NGHP Uer Guide

The long awaited revision to the Non-Group Health Plan User Guide is finally available. CMS Issued Version 3.2 of the NGHP User Guide on August 17, 2011. It can be found on the CMS website. To find it, scroll down to the Downloads section.

CMS grants a one year reprieve for liability insurance. Now, only those TPOC liability payment obligations occurring after October 1, 2011 (previously October 1, 2010) have to be reported. Further, RREs do not have to begin reporting until January 1, 2012 (previously January 1, 2011). The dates for ORM reporting have not been extended.

In addition, CMS has extended the deadlines of the thresholds for reporting under Section 111 for Liability and Workers Comp TPOCs by one year.

  • Those TPOCs that occur prior to January 1, 2013 and are for less than $5000 are exempt from reporting.
  • Those TPOCS that occur between January 1, 2013 and December 31, 2013 and are for less than $2000 are exempt from reporting
  • Those TPOCS that occur between January 1, 2013 and December 31, 2014 and are for less than $600 are exempt from reporting
  • All TPOCs that occur after January 1, 2014 must be reported irrespective of the amount.

Finally, CMS has also extended the thresholds for reporting under Section 111 for Workers Comp ORM and for Liability and Workers Comp TPOCs by one year until December 31, 2012.

MSP Recovery Coalition (MSPRC) Announces New Contact Information: On 9-29-10 the MSPRC issued the following Bulletin announcing that the MAILING ADDRESS and FAX NUMBERS have changed. The MSPRC Bulletin is reproduced in full below, and current contact information for the MSPRC and the COBC is available at www.msprc.info.

On July 26, the Centers for Medicare and Medicaid Services (“CMS”) posted Version 3.1 of the MMSEA Section 111 NGHP User Guide (the ‘User Guide”). The additions or corrections in the User Guide relate primarily to technical/system issues; however, the following changes in Version 3.1 may warrant your attention:

  • 1) Section 8.2 has been updated to require that all Responsible Reporting Entities (“RREs”) are expected to move to a production status within 180 days after initiation of the registration process (the initial registration on the Section 111 reporting website);
  • 2) Section 11.10.2 of the User Guide addresses how two defined groups of RREs are required to handle write offs and situations where property of value is provided (one group includes providers, physicians and other suppliers, and the second group includes any other RRE ) ;
  • 3) If the RRE has only the Social Security Number for an injured party and after submitting the query request, Medicare provides the Health Insurance Claim Number (“HICN”), the HICN must now be used going forward and Sections 11.1.1, 11.10.1 and 12 provide that RREs must store the HICN returned on response files in their internal systems; and
  • 4) If the RRE has no new information to supply on a quarterly update file, the RRE is not required to submit an “empty” Claim Input File