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Birmingham Bar Association Bulletin Winter 2015

Medicare compensation. The “individual/beneficiary” would submit the proposed MSA to CMS. •  If the beneficiary participates in any of the new MSPRC conditional payment recovery options, future medicals would also be considered satisfied. •  (A) If ORM (Ongoing Responsibility for Medicals) is present, CMS would take an upfront payment of the future medical amount that is set aside for Medicare covered treatment. This option would be used in place of self-administration or custodial accounts as long as CMS has reviewed and approved a proposed MSA amount. (B) Where there is no ORM and the beneficiary receives a settlement, an upfront payment can be made to Medicare in the amount of a specified percentage. •  Medicare would not pursue future medicals in cases where CMS has granted compromise or waiver of recovery for conditional payments in relation to that case. Again, the rulemaking proposal has been withdrawn for the time being; however, there is talk that CMS will re-draft and re-file the proposed regulations, although CMS appears in no hurry to do so.2 One recommendation for handling future medicals in liability cases is to view them as you would in the workers’ compensation context. If a Medicare beneficiary, and the settlement is more than $25,000, or if expected to be a beneficiary in 30 months and the settlement is more than $250,000, you will likely need some form of MSA to show that you have taken Medicare’s interests into account. Where there is certification from a treating physician that future medical care will not be required as a result of the underlying claim, Medicare will consider its interests satisfied. I would recommend attaching that certification, whether by way of correspondence or deposition testimony, to any Release in a liability case. What about when liability is disputed, but the medicals are significant? I would recommend setting forth, in detail, the contested nature of liability and applicable defenses. Then consider a selfadministered MSA based on a reasonable estimate of services, which MSA could be reduced proportionally to reflect liability compromises. Again, the only surety in this mess is that “Medicare’s interests must be protected,” so there must be some showing that Medicare’s interests were considered and not that damages were shifted to non-medical categories, e.g., pain and suffering. B. ONLINE PORTAL CMS has recently updated the online portal, which allows individuals other than Medicare beneficiaries themselves to access reimbursement-related information. For example, through the portal, attorneys and carriers are able to download executed Consent to Release forms, obtain conditional payment amounts and request updated lien amounts and final demand letters. In order to access the portal, the following information is required: •  beneficiary’s date of birth; •  social security number or Medicare id; •  Medicare’s 15-number case id (which can be found on any correspondence from CMS once the claim has been reported) OR date of loss. The change no longer requires the 15-number case id but allows you to enter the date of loss to access conditional payment information. In order to request updated conditional payment totals and final demand letters, there must be a Consent to Release on file with CMS. C. SMART ACT/APPEALS PROCESS In late December 2012, the United States House and Senate passed the Strengthening Medicare and Repaying Taxpayers Act (SMART Act), and President Obama signed the bill into law on January 10, 2013. The purpose of the SMART Act is to make the new reporting and reimbursement requirements more efficient by decreasing bureaucratic delays in the process. The Act addresses obtaining the Medicare lien amount, creating an annual threshold, reconsidering the civil penalties for non-compliance, and statute of limitations. In April of 2015, CMS published a final rule establishing a formal administrative appeal and judicial review rights for Medicare beneficiaries. Previously, there was no formal avenue by which to appeal Medicare’s assessment of a conditional payment owed. The rule sets forth a multilevel appeal process when an “applicable plan,” i.e., liability insurance, wishes to appeal. The process includes the following: •  an “initial determination” (final demand letter), •  a “redetermination” by the contractor issuing the final demand letter, •  a “reconsideration” by a CMS Qualified Independent Contractor, Continued on page 32 Birmingham Bar Bulletin/ Winter 2015 27


Birmingham Bar Association Bulletin Winter 2015
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