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Medicare Secondary Payer Compliance:

Gain insights into the impact and compliance assistance available for Medicare Secondary Payer (MSP). Understand the conflict between law and policy that shaped MSP compliance and its effects on claims management. Learn about key MSP numbers and relevant case studies. Explore the future outlook of MSP and its influence on the industry.

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Medicare Secondary Payer Compliance:

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  1. Medicare Secondary Payer Compliance: Perspectives Within the Industry

  2. • James S. Price, ARM, CMSP Senior Consult AON Global Risk Consulting • • Michele Adams, Director, • Claims Management & Business Strategies, Walt Disney World Resort • • Neil Selman, Esq. Attorney/Partner, • Selman Breitman • • Aaron Frederickson, Esq. Chief Legal Officer, • MSP Compliance Solutions, LLC

  3. What to Expect • •Understand how the conflict between law and policy has shaped MSP compliance • •Appreciate the impact of MSP compliance on the law and claims management • •Identify the compliance assistance available from service providers

  4. Key MSP Numbers to Consider • $524B – CMS 2014 Budget • $1.84b – CMS WCMSA “saving” for 2013 • 30-40K WCMSA per year (cost our industry $66m – $96mm PER YEAR) • Since7/23/2001 est. $55B in MSA trusts • CMS cannot say how much actually pay out of MSA trusts for Medicare items and services • So-called LMSA “tax” could easily double these amounts!

  5. Medicare Secondary Payer Act • 42 U.S.C. § 1395y (b) (2)—Medicare secondary payer • (A) In general • Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that— • (i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1), or • (ii) payment has been made [3] or can reasonably be expected to be made [3] under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

  6. 42 C.F.R. §411.46—Lump Sum Payments • (a) Lump-sum commutation of future benefits. If a lump-sum compensation award stipulates that the amount paid is intended to compensate the individual for all future medical expenses required because of the work-related injury or disease, Medicare payments for such services are excluded until medical expenses related to the injury or disease equal the amount of the lump-sum payment.

  7. 42 C.F.R. §411.46—Lump Sum Payments • (b) Lump-sum compromise settlement. • (1) A lump-sum compromise settlement is deemed to be a workers' compensation payment for Medicare purposes, even if the settlement agreement stipulates that there is no liability under the workers' compensation law or plan.

  8. 42 C.F.R. §411.46—Lump Sum Payments • (b) Lump-sum compromise settlement. • (2) If a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition, the settlement will not be recognized. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, Medicare will not pay for treatment of that condition.

  9. MSP Manual Chapter 7, Section 50.5 -“Contractor Action If a Liability Claim Is Pending and Medicare Benefits Were Paid” “There should be no recovery of benefits paid for services rendered after the date of a liability insurance settlement. However, the entire amount of a settlement is subject to recovery, whether the liability payment is made at the time of the settlement, or over a period of time agreed to by the parties in a structured settlement.” Question: Why is Chapter 7 now “Under Review” by CMS and not a part of the current MSP Manual?

  10. LMSAs in the Federal Courts • “Prove up cases” and so-called LMSAs • Finke v. Hunter’s View, 2009 U.S. Dist. LEXIS 126830 (D. Minn. 2009) • Big R. Towing v. Benoit, 2011 U.S. Dist. LEXIS 1392 (W. D. La. 2011) • Frank v. Gateway Ins. Co., 2012 U.S. Dist. LEXIS 33581 (W. D. La. 2012) • Bertrand v. Talen’s Marine & Fuel, LLC, 2012 U.S. Dist. LEXIS 78053 (W. D. La. 2012) • Early v. Carnival Corp., 2013 U.S. Dist. LEXIS 16711 (S. D. Fla. 2013)

  11. MSP and Future Medicals • Medicare Program; Medicare Secondary Payer and “Future Medicals,” CMS-6047-ANPRM • Seven proposed options for a consolidated “future medicals” program • Industry response was “not helpful” to CMS • Many challenged CMS statutory/regulatory authority • To date, CMS has NOT done anything further • What will CMS and MSA industry’s next move be? • What should be YOUR next move?

  12. Questions, Final Comments and Contact Information • Neil Selman • (310) 445-0800 • nselman@selmanbreitman.com • Aaron Frederickson • (651) 485-7036 • aaron@mspComplianceSolutions.com • James S. Price, ARM, CMSP • (415) 486-7230 • jim.price@aon.com • Michele Adams • (407) 397-6337 • Michele.Adams@disney.com

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