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  • January 17, 2023

    New Year’s Resolution: Stay Out of Medicare’s Crosshairs

    With the holidays behind us and a New Year just started, Heather Nelson and Kristen Scheuerman share helpful practice tips to ensure that, when it comes to compliance with the Medicare Secondary Payor Act in 2023, you and your clients are golden.

    Heather L. Nelson and Kristen S. Scheuerman

    We believe a lot of people think of Medicare like the funny uncle who shows up for the holidays and all you want to do is avoid him.

    But avoiding the funny uncle … aka Medicare … won’t keep him away from the plate of latkes or the Christmas fruitcake, and he’ll just try harder to get your attention if you don’t deal with him up front. So if you say your polite hellos and talk about the weather – errr, conditional payments – we promise you’ll keep Medicare out of your crosshairs this year.

    Heather Nelson headshot Heather L Nelson, ​DePaul 2000, is a shareholder and president of Everson, Whitney, Everson & Brehm, S.C., Green Bay. Her practice entails defending civil lawsuits, including motor vehicle accident, premises liability, wrongful death, and products liability matters.

    Kristen S. Scheuerman headshotKristen Scheuerman, Marquette 2010, is a partner with Weiss Law Office, S.C., in Appleton. She practices in personal injury and as a mediator, and serves as a guardian ad litem in cases involving minor settlements.

    Tip #1: Plaintiffs’ Counsel Should Use the Portal

    Trust us on this one. Use the Portal (aka Medicare Secondary Payer Recovery Portal). It will make your life so much easier. And even if the case is put into suit, you will be better prepared for managing the litigation process if you’ve reported, opened, and organized the claim in the Portal ahead of time.

    By using the Portal, you can track conditional payments in real time, dispute unrelate​d charges, and download final Conditional Payment Summaries.

    Also, word on the street is that the Portal may become available to litigants in the near future, even once a claim is in suit – so what are you waiting for?

    Use. The. Portal. If you’ve gotten this far and don’t know what the Portal is, make sure this is ​the year you learn.

    Tip #2: Section 111 Reporting is Real

    Responsible Reporting Entities (RREs – think “insurance companies”) do have duties to report information related to claims. This means that even if a plaintiff is 23 years old and seemingly not a Medicare recipient, they still have certain obligations to report and ensure the claimant is not a Medicare recipient.

    A friendly reminder that age is not the only way individuals can become Medicare-eligible, so if you represent an injured party, do not assume the insurance company or defense counsel is overstepping or playing games if they request information to complete their reporting requirements.

    And another friendly tip! Insurance companies do not need a claimant’s entire Social Security number – but they are entitled to the last 5 digits. This is one of those “know what’s required” tips: Don’t request more than you need if you’re on the defense side, but an injured party should not also refuse to provide the information that a RRE is entitled to.

    The sandbox is plenty big and it’s best when everyone plays nicely.

    Tip #3: Protect Your Clients’ Interests

    This could be a multiple-page article in and of itself, but we’ll hit the high points.

    Plaintiffs: If you represent injured parties, you need to understand how making certain claims and using various ICD-10 codes when reporting your client’s related injuries may impact their access to benefits after a claim is settled.

    Further, it is entirely the responsibility of the plaintiff to protect Medicare’s future interests, if any. If you represent an injured party, you need to have a plan for how to address the future interests of Medicare if you claimed future damages and received a settlement substantial enough to arguably compensate your client for those claimed future damages.

    Defense: On the defense side of the “v,” think about what exposure your clients have when settling a claim. There is no exposure to your client with respect to any future treatment a plaintiff may undergo in a liability case (worker’s comp is a different ball of wax). However, your client has significant exposure when it comes to the conditional payments made by Medicare.

    A tempting shortcut is to assume you simply can toss language into a Release that has the plaintiff indemnify your client and obligates them to resolve or satisfy any and all liens – which is fine and good, but does not provide your client with the best protection.

    Assume this situation: Plaintiff had a Part C plan (aka a Medicare Advantage Plan). The Part C plan carrier is typically named in the suit as a subrogated party, and often has an attorney who has appeared in the case and who is involved in the lien negotiation process (whereas typically the U.S. Department of Health and Human Services – representing the Centers for Medicare and Medicaid Services (CMS) – files a “Statement of Position” but does not actively participate).

    You were told that the Part C plan was the plaintiff’s only insurance. The case settled and the Part C plan was reimbursed. Phew.

    Except! Years later CMS sends a notice and claims it made payments toward the plaintiff’s care. But how could that be? The Part C plan had a lien and it was satisfied!

    Don’t forget that both CMS (“traditional Medicare”) and the Part C Plan can make payments related to plaintiff’s treatment, and as far as CMS goes, the injured party’s “common working file” (the information visible to CMS) does not include information about payments made by Part C plans.

    Now what? Because there is a direct cause of action in the Medicare Secondary Payer (MSP) Act, CMS has a right to come after your insurer for the amount of the unpaid conditional payment, times two. Gulp.

    How could this have been avoided?

    If you represent injured parties, do not necessarily take their word for it when they tell you what insurance they use. If an injured party is eligible or has Part C coverage, always open a claim in the Portal when you begin working a new file. This will allow you as plaintiff’s counsel to see in real time what, if anything, is being added to the Conditional Payment Summary for your client’s claim.

    And if nothing is added, great! When the time comes to settle the case, you will be able to secure a final Conditional Payment Summary that shows $0 paid.

    For insurers and those who represent them, we recommend that, any time you have are defending a case involving a Medicare claimant – even if you’re told they don’t use traditional Medicare and use just a Part C plan – you require a copy of a new or very recent Conditional Payment Summary before you issue payment. If an injured party has a Part C plan, they are by definition Medicare-eligible. To ensure Parts A and B (or even D) did not make any payments toward the injured party’s care, get a Conditional Payment Summary.

    Communication is key – we recommend advising plaintiff’s counsel before mediation or during negotiations that settlement is conditioned upon them providing a current Conditional Payment Summary and that you will require them to provide you with proof of their satisfaction of CMS’ interests out of the settlement proceeds by sending a copy of the computation form and their letter and/or check to CMS satisfying its interest.

    Bonus Tip: On Releases

    All parties should also be thoughtful about what to include in a release, and the timing of disclosing that language. If you represent insurers, be aware of what is (reporting, CMS’ interest not being satisfied) and isn’t (set-asides) a risk to your client, and tailor your releases accordingly.

    If you represent injured parties, read proposed releases to ensure you are not assuming responsibilities or duties on behalf of your client that do not otherwise exist (typically in the form of requirements related to future care and set-asides).

    Make It a Great New Year (for Medicare Compliance)

    See? It’s as easy as 1, 2, 3. Keep these tips in mind and it should be a great New Year – at least when it comes to Medicare compliance.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.

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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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