Rafael Gonzalez, Esq., President, Flagship Services Group
After 35 years of seeking reimbursement of conditional payments post settlement, judgment, award, or payment of a case, in 2015, the Centers for Medicare & Medicaid Services (CMS) transitioned a portion of the Non-Group Health Plan (NGHP) Medicare Secondary Payer (MSP) recovery workload from the Benefits Coordination & Recovery Center (BCRC) to its Commercial Repayment Center (CRC). As a result, on October 5, 2015, the CRC assumed responsibility for the recovery of conditional payments where CMS is pursuing recovery directly from a liability insurer (including a self-insured entity), no-fault insurer or workers’ compensation entity, referred to as Applicable Plans (AP), as the identified debtor. Since then, CMS, through a contract with CGI, had been pursuing recovery directly from APs as the identified debtor when an applicable plan reports that it has ongoing responsibility for medicals (ORM) or otherwise notifies CMS of its primary payment responsibility.
Stakeholders Unhappy with CRC Lack of Responsiveness
As the CRC assumed responsibility for the recovery of conditional payments where CMS was pursuing recovery directly from a liability insurer (including a self-insured entity), no-fault insurer or workers’ compensation entity as the identified debtor, NGHPs began to notice a considerable slowdown of requests for reimbursement. In response to such industry wide concerns, on February 9, 2016, the CRC announced it “was aware that many insurers and work comp entities were concerned and awaiting demand letters.”
Over the next several months, workers compensation and no-fault claims professionals discovered what they had been fearing all along, that CGI, the federal contractor hired by CMS to do the CRC day to day work required to administer such ORM claims, had no experience in NGHP work, let alone an understanding of workers compensation and no-fault claims, process, structure, policies, coverage, benefits, settlement, exhaustion, limits, timing, state laws and requirements affecting reimbursement of conditional payments. As the months went by, it also became evident that there was no internal system or process at CGI to handle all of the various components of conditional payment resolution in situations where an AP had accepted ORM. Individuals at CGI answering questions from NGHP entities would often indicate they had not been trained in the specific workers compensation or no-fault issue at hand. This resulted in NGHP entities receiving inaccurate and inconsistent answers and information, thereby extending, by several months, the resolution of such issues.
Stakeholders Share Concerns During CMS Meeting on CRC Progress
The CRC process was front and center at the November 17, 2016 CMS town hall telephone conference. After CMS updated listeners on the Medicare Secondary Payer Recovery Portal (MSPRP) and Social Security Number Removal Initiative (SSNRI), the CRC had the opportunity to present on lessons learned since taking over resolution of ORM claims on October 5, 2015. Although it was clear that the process had improved regarding group looping, and accuracy of the conditional payments, the backlog remained an issue. Although the CRC shared timeframes within which each step of the process, the reality was that cases were taking longer and longer at the CRC.
CMS Announces Change to CRC Contractor
Although no mention of why, on October 10, 2017, CMS announced it had taken CGI off and instead awarded the new CRC contract to Performant Recovery, Inc. for recovery activities for both Group Health and Non-Group Health Plans (that is, liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans) with ongoing responsibility for medicals. At that time, CMS indicated “activities would be transitioned in a manner that preserved continuity and presented minimal disruption to the recovery process. CMS anticipated completion of the transition process by early January, 2018.”
On January 5, 2018, CMS announced it would be presenting two webinars to introduce the new CRC Contractor. The GHP webinar will be held Wednesday, January 17th and the NGHP webinar on Thursday, January 18th. The same notice indicated that effective February 8, 2018, the new contractor would assume responsibility of the CRC functions, including the recovery of conditional payments where CMS is pursuing recovery directly from a liability insurer (including a self- insured entity), no-fault insurer or workers’ compensation entity as the identified debtor.
CRC Transition to Performant NGHP ORM Town Hall Presentation
At the January 18, 2018 town hall presentation, CMS introduced Performant as the new CRC contractor. Performant indicated it has over 40 years of recovery and collections experience with extensive knowledge delivering recovery solutions to the largest federal and state agencies. Performant also indicated it brings 10 years of recovery audit experience and expertise in Medicare and Medicaid fully-insured populations, and a long history of MSP and Medicare recovery with the Centers for Medicare and Medicaid Services (CMS) and the Department of Treasury.
Performant indicated several times throughout the presentation that its main goal as the incoming CRC is to make this transition as smooth as possible for the public and all CRC stakeholders. They reiterated that CMS’s recovery processes will remain the same, with no changes to its substantive or procedural rules. Effective Friday, February 9, 2018 CGI will cease operations as the Medicare MSP CRC contractor; Performant will commence CRC operations effective Monday, February 12th, 2018.
Therefore, effective 02/12/2018, stakeholders should use the Performant address and fax number for all NGHP ORM MSP correspondence:
Medicare Commercial Repayment Center – NGHP ORM
P.O. Box 269003
Oklahoma City, OK 73216
FAX Number: (844) 315-7627
Performant CRC Call Center: (855) 798-2627
Consequently, CGI’s fax servers will be turned off effective 8:00 PM EST February 6, 2018. CGI’s Call Center IVR will be turned off effective 12:00 PM EST February 9, 2018. Performant’s Fax Servers will be turned on effective 8:00 AM EST February 12, 2018. Performant’s Call Center IVR will be turned on effective 8:00 AM EST February 12, 2018. Therefore, any information received prior to February 12, 2018, will be held by Performant and not processed until February 12, 2018.
Performant made it clear that February 8-9, 2018, will be “dark days” for CRC operations. Although telephone calls may be taken, the information given will only reflect case information that is effective as of close of business Wednesday, February 7 for CRC cases. During these dark days, the CRCP will not be available; however, the MSPRP will be available for CRC cases but will only reflect information effective as of close of business Wednesday, February 7. Stakeholders will not be able to upload case documentation during the dark days. Any correspondence received during this window will be held and transferred to Performant on February 12. Any correspondence received prior to the transition will be transferred to Performant, so there is no need to re-send this information to Performant went it goes live at 8:00 AM EST on February 12, 2018.
The town hall power point presentation can be found at https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Downloads/Jan-18-2018-NGHP-CRC-Transition-Webinar-Presentation.pdf
Here we go again, as a new CRC contractor takes over reimbursement of conditional payments when ORM exists. After more than two years since the CMS transitioned a portion of the NGHP recovery workload from the BCRC to the CRC, CMS announced a change of contractor handling the day to day administrative components of such reimbursements from CGI to Performant Recovery. Because of volume, the ongoing nature of ORM, and the potential for mistakes, most expected for the CRC to experience difficulty early on with the recovery of conditional payments where CMS is pursuing recovery directly from a liability insurer (including a self-insured entity), no-fault insurer or workers’ compensation entity, as the identified debtor. However, more than two years into it, most also expected for the CRC process to be better developed, for customer service representatives to be better informed, for communication channels to have been more clear and transparent, for the transfer of data and documents to be easier and smoother, for the conditional payment summaries to be more accurate, for the dispute process to be more consistent and faster, and for resolution to bring closure. With a new contractor that does not have a background in liability, no-fault, or workers compensation claims, or any experience handling MSP issues, all stakeholders will be watching closely as Performant takes over February 12, 2018.
About Rafael Gonzalez
Rafael Gonzalez, Esq. is President of Flagship Services Group. He has over 30 years of experience in the auto, liability, no-fault, and work comp industries. He is one of the country’s top experts on Medicare and Medicaid compliance, serving insurers, self-insureds, and third party administrators. He speaks and writes on mandatory insurer reporting, conditional payment resolution, set aside allocations, and professional administration, as well as the interplay and effect of these processes and systems and the Affordable Care Act throughout the country. Rafael blogs on these topics at Medicare Compliance for P&C Insurers at www.flagshipservicesgroup.com/blog. He is very active on LinkedIn, Twitter, Instagram, and Facebook. He can be reached at firstname.lastname@example.org or 813.967.7598.
About Medicare Conditional Payments
42 CFR Section 411.21 indicates that Medicare conditional payments are payments made by Medicare for medical treatment where a primary payer (insurer or self-insurer) has or may have an obligation to make such payment. Primary payers must reimburse Medicare for conditional payments it has made. 42 USC Section 1395y indicates that primary payers include group health providers, workers’ compensation, liability and no-fault insurers and self-insured entities, as well as physicians, attorneys, hospitals, or clinics that receive payment from a primary payer must make reimbursement.
42 USC Section 1395y also indicates responsibility as a primary payer arises even if liability for the medical expense is contested. Such a responsibility can be demonstrated by entry of a judgment or by payment conditioned on a release or waiver of payment, even if liability is denied. 42 CFR Section 411.24 indicates Medicare has a direct right of action against all primary payers responsible for making payment. And, Medicare has a direct right of action against any person or entity that received a primary payment, including the Medicare beneficiary, medical provider, physician, attorney, state agency or private insurer.
About Medicare Advantage and Prescription Drug Plans Reimbursement
42 CFR Section 422.108(f) provides MAPs with the same rights of recovery that the Secretary of HHS has under the MSP regulations in subparts B through D of part 411 of 42 CFR. Additionally, the same MSP regulations at 42 CFR Section 422.108 are extended to PDPs at 42 CFR Section 423.462. Therefore, PDPs have the same MSP recovery rights as MAPs, which have the same recovery rights as HHS. This includes, as recent federal appellate and district court decisions have indicated, the ability to pursue double damages through MSP private cause of action pursuant to 42 USC Section 1395y(b)(3) should the primary payer deny the MAP or PDP reimbursement of any due conditional payments.
About Medicaid Third Party Liability Liens
42 USC Section 1396a mandates that all reasonable measures to ascertain legal liability for Medicaid payments and reimbursement of same be taken. The state or agency administering a Medicaid plan must take all reasonable measures to ascertain the legal liability of third parties to pay for care and services paid by Medicaid. Federal law also provides that in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual, the state or local agency must seek reimbursement for such assistance to the extent of such legal liability. 42 U.S.C. Section 1396a(a)(25).
The 2013 Strengthening Medicaid Third Party Liability Act, effective October 1, 2017, allows state Medicaid agencies or the insurers/managed care organizations contracted with to provide such benefits to seek reimbursement from any responsible third party of all payments made from the entirety of settlement, judgment, award funds, not just a portion thereof.
About Flagship Services Group
Flagship Services Group is the premier Medicare and Medicaid compliance services provider to the property & casualty insurance industry. Our focus and expertise has been the Medicare and Medicaid compliance needs of P&C self-insureds, insurance companies, and third party administrators. We specialize in P&C mandatory reporting, conditional payment resolution, and set aside allocations. Whether auto, liability, no-fault, or work comp claims, we have assembled the expertise, experience and resources to deliver unparalleled MSP compliance and cost savings results to the P&C industry. To find out more about Flagship, our folks, and our customized solutions, please visit us at www.flagshipservicesgroup.com. To speak with us about any of our P&C MSP compliance products and services, you may also contact us at 888.444.4125 or email@example.com.