On June 6, 2017, The Henry J. Kaiser Family Foundation published Medicare Advantage 2017 Spotlight: Enrollment Market Update. Written by Gretchen Jacobson and Tricia Newman from the Kaiser Family Foundation, Anthony Damico, an independent consultant, and Marsha Gold, a Senior Fellow Emeritus with Mathematica Policy Research and an independent consultant, the study highlights the fact that “Medicare Advantage plans have played an increasingly larger role in the Medicare program as the share of Medicare beneficiaries enrolled in Medicare Advantage has steadily climbed over the past decade.” The trend in enrollment growth is continuing in 2017, and has occurred despite reductions in payments to plans enacted by the Affordable Care Act of 2010 (ACA). The Data Spotlight “reviews national and state-level Medicare Advantage enrollment trends as of March 2017 and examines variations in enrollment by plan type and firm. It also analyzes the most recent data on premiums, out-of-pocket limits, and quality ratings.” The study can be found here.
By now, everyone involved with auto, liability, no-fault, and workers compensation claims is aware that the Medicare Secondary Payer Act (42 U.S.C. 1395y) was passed by Congress and signed into law by President Jimmy Carter in December 1980. However, the current Medicare Secondary Payer (MSP) compliance program we are all familiar with today didn’t really get started until the mid 1990’s, traced back to HIPPA’s Medicare Integrity Program.
Topics: Conditional Payments
As I previously blogged about on September 9, 2016, on August 30, 2016, the United States Court of Appeals for the 11th Circuit published its opinion in MSP Recovery, LLC v. Allstate Insurance Company, concluding that a contractual obligation, without a judgment, settlement, award, or other payment, can satisfy the “demonstrated responsibility” requirement of the private cause of action provided for by the Medicare Secondary Payer Act (MSP Act) at 42 U.S.C. §§ 1395y(b)(2)(B)(ii), (b)(3)(A). The court therefore allowed Medicare Advantage Plan assignee entities to seek double damages against no-fault, med-pay, PIP primary payers because of their refusal to reimburse Medicare advantage plan payments made related to the underlying covered claims.
On April 18, 2017, the United States District Court for the Northern District of Florida, Tallahassee Division, published its opinion on Gianinna Gallardo v. Elizabeth Dudek, Secretary of Florida Agency for Health Care Administration, concluding that Florida’s Medicaid reimbursement statute is preempted by federal Medicaid law. The court indicates that by allowing the Agency for Health Care Administration (AHCA)—Florida’s agency charged with administering Medicaid—to satisfy its lien from settlement funds allocated to both past and future medical expenses, Florida has run afoul of the federal Medicaid statute. The court also determines that the same is true for Florida’s Medicaid reimbursement statutory formula. Specifically, Florida’s reimbursement statute—which only allows the Medicaid recipient to rebut that formula-based allocation by presenting clear and convincing evidence that it is inaccurate—amounts to a quasi-irrebuttable presumption and thus conflicts with and is preempted by federal law.
Topics: Medicare Law
On March 21, 2017, the California Workers Compensation Appeals Board published its opinion on Fernando Muniz Villalpando v. Doherty Brothers; Martin Dusters; State Compensation Insurance Fund, concluding that in deciding whether to allow a claimant to go from having his MSA professionally administered to self-administering his own MSA account, the trial judge must examine the terms of the parties’ agreement, and whether it included any provision for a change of administration in the event the hired vendor ceased to operate or withdraw from providing the contracted services over the life of the agreement. The Appeals Board makes it clear that the trial judge should be provided the opportunity to consider the nature of the agreement between the employer/carrier, claimant, and vendor, and whether there is any provision for a change of administration, and if none, the nature of claimant’s contractual remedies.
Topics: Medicare Law
On March 23, 2017, the United States District Court for the Southern District of Florida published its opinion on Shapiro v. Secretary of Department of Health and Human Services, concluding that, even though Plaintiff and her attorney may have relied on Medicare’s verbal representation of $17,306.03 in conditional payments to settle the case, absent a waiver from CMS or its contractors in writing, the MSP Act requires Plaintiff to reimburse Medicare, and permits the Secretary of HHS to recover, the full $23,552.96 it paid in conditional payments from date of accident thru date of settlement. Since Plaintiff did not request a waiver for reimbursing all or part of the debt based on financial hardship, and failed to prove recovery is against equity and good conscience, court concludes plaintiff did not suffer a material detriment as she would still received 96% of settlement proceeds she agreed to.
We have heard various complaints that Responsible Reporting Entities are receiving Conditional Payment Notices with unrelated charges or that the Commercial Repayment Center (CRC) isn’t closing claims, but how much of this is CMS’ fault and how much blame rests on the claims adjuster and the RRE?
On March 15, 2017, the United States District Court for the Southern District of Florida published its opinion on MSPA Claims I v. Century Surety Company, concluding that based on the USCA 11th Circuit opinions MSP Recovery, LLC v. Allstate Insurance Co., and Humana Medical Plan, Inc. v. Western Heritage Insurance Co., MSPA Claims I, an assignee of a Medicare Advantage Plan (MAP), has the right to recover medical expenses the MAP paid on behalf of one of its enrollees from Century Surety Company, the liability insurer that issued a commercial liability insurance policy with a Med-Pay clause. The court finds that MSPA Claims I has a private cause of action under the Medicare Secondary Payer Act (MSPA), as Century Surety is responsible for the payment of the medical expenses based on the existence of the Med-Pay policy and its denial in reimbursing same.
With 73 million beneficiaries as of December 2016, Medicaid has become our country’s largest healthcare insurance program. With more beneficiaries in every age group, the likelihood of such beneficiaries becoming involved in an auto, liability, no-fault, or work comp claim has also grown exponentially. When this happens, just as with Medicare, Medicaid becomes a secondary payer. The corporate defendant, its insurer, or the beneficiary and his/her attorney, if the claim settles, becomes responsible for any payments related to such claims, including reimbursement of any expenditures made by the state Medicaid agency or the insurer/managed care organization that may have contracted with the state to provide such Medicaid benefits.
Topics: medicare compliance