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CMS Issues Seven Guidance Statements in a Single Day

CMS has been very busy lately working to improve its Medicare Secondary Payer (MSP) program as became apparent on Friday, September 30th when it announced seven separate guidance statements on the “MMSEA 111 What’s New ” section of its website.

1. Delay in Section 111 Reporting for Certain Liability TPOCs – CMS has delayed Section 111 reporting for certain liability Total Payment Obligation to Claimant (TPOC) settlements, awards or other payments.   No other Section 111 reporting dates were changed.  This change is optional.  Previously, all liability TPOCs incurred in Q4/2011 where to be reported in Q1/2012.  That still applies to TPOCs that exceed $100,000, but the new reporting timetable for Section 111 liability TPOCs under $100,000 now depends on the TPOC amounts.  So, here is a complete new Section 111 timetable for all reporting types with the latest 9/30/2011 liability TPOC changes highlighted with asterisks.

Section 111 Timetable Chart – as of September 30, 2011

Type Capture Date Report Date
Workers’ Comp ORM Q4/2010 and prior Q1/2011
Workers’ Comp TPOC Q4/2010 Q1/2011
Liability ORM Q4/2010 and prior Q1/2011
*Liability TPOCs > $100,000 *Q4/2011 *Q1/2012
*Liability TPOCs > $50,000 *Q2/2012 *Q3/2012
*Liability TPOCs >$25,000 *Q3/2012 *Q4/2012
*Liability TPOCs over min threshold *Q4/2012 *Q1/2013
Min threshold, TPOC ≤ $5,000 2012 exempt
Min threshold, TPOC ≤ $2,000 2013 exempt
Min threshold, TPOC ≤ $600 2014 exempt
no min threshold 2015 and thereafter

Note: The four rows with asterisks reflect the new timetable changes announced on 9/30/2011.  The minimum thresholds remain the same.

2. Policy Guidance Related to Exposure, Ingestion, Implant Issues and December 5, 1980 – CMS stated that it historically has not asserted a Medicare Secondary Payer (MSP) recovery claim against settlements where the date of incident (DOI) occurred before 12/5/1980, which is the effective date of the MSP Statute.   CMS then went on to clarify that for purposes of determining the DOI, it uses:

  • the date of last exposure for environmental hazard cases,
  • the date of last ingestion for ingestion cases,
  • the date of last physical exposure for ruptured medical implant cases and..
  • the date the implant was removed for non-ruptured implant cases.

Finally, CMS said that when reporting both under Section 111 and to the COBC, the date of first exposure/date of first ingestion/date of implantation is the date that MUST be reported as the DOI.

3.  An Alert Related to Qualified Settlement Funds – CMS announced a limited exception to Section 111 reporting when settlement funds are paid to a Qualified Settlement Fund (QSF).  Under this exception, Section 111 reporting is NOT required if: (a) the settlement is a liability TPOC only payment, (b) the settlement payment is issued by the QSF in connection with a bankruptcy, and (c) the settlement funds where paid to the QSF after October 1, 2011.

4.  A Policy Memorandum for Liability Medicare Set-Asides Regarding Treating Physician Certification – In its very first policy Memorandum addressing Liability Medicare Set-Asides (LMSA), CMS addressed the issue of how to “consider Medicare’s interest” in liability settlements where future injury related medical treatment will not be required.  CMS said that if the treating physician certifies in writing that no future medical treatment is required, Medicare will consider its interest satisfied and there is no need an LMSA for review.

5. The MSPRC implements a Self-Service Phone Feature –  The Medicare Secondary Payer Recovery Contractor (MSPRC) has added a 24/7, no wait-time, self-service phone feature to its customer service line that gives callers up-to-date demand and conditional payment amounts and the dates those letters were issued without having to speak to a customer service representative.

6. Option to Pay a Fixed Percentage for $5,000 or less Liability Settlements – Beginning in October 2011, CMS will implement an option to a fixed percentage of certain trauma-based liability cases with settlements of $5,000 or less.  More details on this will be posted at www.MSPRC.info on or before October 21, 2011.

7.  Upcoming improvements to the MSP program – CMS announced the following upcoming improvements expected within the next 3-9 months:

  1. The implementation of a MSPRC Web portal where a beneficiary/representative can obtain information about Medicare’s claim payments, demand letters and input settlement and disputed claim information.
  2. The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.
  3. The implementation of a process that provides Medicare’s conditional payment amount, prior to settlement in certain situations.

Again, like several previous news announcements from CMS, this is very encouraging news.  Stay tuned; we will keep you informed as more developments follow.

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