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

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

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

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

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

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

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

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

The Conditional Payment challenge Solutions: – MyMedicare.gov & – 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

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

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

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

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

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

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

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