Robert J. Finley No Comments

Politics:

Which ideas will rise to the top in the 2020 Presidential election where each candidate seems to advance different positions and goals on health care, and Medicare’s role, which many polls suggest remains the top issue:  Providing Americans the healthcare they need and improving access to affordable, quality healthcare… Bring down costs and increase access to quality care… Combat the opioid addiction crisis… Bring down the cost of prescription drugs… Expand choices and alternatives to Obamacare plans and increase competition to bring down costs for consumers…  Protect and build on the Affordable Care Act… Expand Obamacare and Medicare to achieve universal coverage… Medicare for all… Medicare for all who want it… Medicare plus a choice of either complimentary or supplementary private insurance.

Legislation:       

Section 111 NPRM which, consistent with Section 516 of the Medicare Access and CHIP Reauthorization Act of 2015 amending the Social Security Act (the Act) by repealing certain duplicative Medicare Secondary Payer reporting requirements, is supposed to remove obsolete Civil Money Penalty (CMP) regulations associated with the 2015 repeal, and also solicit public comment on proposed criteria and practices for which CMPs would and would not be imposed under the Act, as amended by Section 203 of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act).

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=0938-AT86

LMSA NPRM which, is supposed to ensure that beneficiaries are making the best healthcare choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund.

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=0938-AT85

“COMP Act”- Coordination Of Medicare Payments and Worker’s Compensation Act (H.R. 4161) which would amend the Social Security Act to mandate Medicare set-asides apply to certain workers’ compensation settlement agreements and qualified Medicare set-aside provisions. 

https://www.congress.gov/bill/116th-congress/house-bill/4161/text?r=8&s=1

CMS regulatory and administrative activity:

  • Administrative responses and appeals to denial of service notices from CMS to Medicare beneficiaries who may have Medicare set-asides from settlements to pay for future medical expenses and prescription drugs related to an injury.
  • CMS and USDOJ targeting Plaintiff firms on claims for not repaying Medicare conditional payments.
  • In November, CMS announced that the Medicare Fee-For-Service (FFS) improper payment rate continues to fall—by $7 billion from FY 2017-2019—and is at its lowest level since FY 2010, a total of $28.9 billion. CMS’ five-pillar Medicare program integrity strategy is credited for reducing improper payment rates:  Stop bad actors, Prevent fraud, Mitigate emerging programmatic risks, Reduce provider burden, and Leverage new technology. 
  • In September, advancing similar priorities in the provider enrollment process, CMS issued a new rule where the government can regulate (deny, prohibit or revoke) individual providers, suppliers and organizations from participating in Medicare program who have risky relationships with other bad actors or sanctioned entities.

Courts:

  • Tracking the 5th Circuit Court of Appeals case Texas v. United States https://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf holding the Affordable Care Act’s individual mandate unconstitutional but also remanding the matter to the Texas district court to further analyze whether without the mandate the Act is still valid.  The case is expected to eventually end up in the United States Supreme Court.
  • The disposition of Medicare Advantage Organization (MAO) assignment-based class action litigation and those active cases involving Plaintiffs, MAO-MSO Recovery II, LLC; MSP Recovery, LLC; MSPA Claims 1, LLC; and MSP Recovery Claims, Series LLC MSP.
  • Activity taken by other Medicare Advantage Plans in light of Humana’s ongoing, proactive recovery efforts pursuant to MSPA private cause of action. 
  • Limits on MSPA private causes of action for double damages alleging “failure to repay” applying only to “recalcitrant” primary payers who act unreasonably, with dereliction of duty, without legitimate defenses to liability, intentionally withhold payment, or improperly deny claims. See e.g. Duncan v. Liberty Mutual Ins. Co., 2019 U.S. Dist. LEXIS 106265 (June 25, 2019) citing to similar holdings from 2nd, 4th, 6th and 8th Circuit Courts, as well as Eastern District of Louisiana.
  • Meaning of “must file suit” and attorney fee reduction formulas under 42 CFR §411.37(e). See e.g. United States v. Angino, 2019 U.S. Dist. LEXIS 30499 (February 26, 2019).  Also, whether Medicare Advantage Plans are subject to the general rule reducing its recovery to account for costs; and services and supplies that may be recoverable under MSPA by Medicare Advantage Plans vs. Original Medicare.
  • Response by CMS and various insurance policies on MSPA exposures in light of Oregon State Bar and Azar decisions limiting the definition of “Applicable Plans” with conditional repayment and Section 111 obligations especially with Section 111 NPRM seemingly at the doorstep.

About Robert Finley

Robert J. Finley, a partner at Hinshaw & Culbertson LLP, has litigation and trial practice experience focused in tort, employment and healthcare.  He counsels firm clients under auto, property/casualty, no-fault, and workers compensation policies on Medicare repayment and Medicaid reimbursement compliance. Robert also advises Flagship Services Group on high value matters, in administrative hearings, and with educational solutions.

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 have 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 team, 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 info@flagshipsgi.com.

Disclaimer: This publication is provided for informational purposes only.  It is not intended to constitute, and shall not be construed as, the rendering of legal, accounting, or business advice or opinion or professional services of any type.  Nothing herein constitutes the views of the firm or its clients or the endorsement of any particular case, principle, or proposition.  The contents of this publication should not be viewed as a substitute for the guidance, advice, or recommendations of a retained professional.

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