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Presenting a live 90-minute webinar with interactive Q&A

Medicare Conditional Payment and Medicare

Advantage Plan Reconciliation Processes Techniques to Minimize Repayment Obligations and

Maximize Medicare Refunds After a Liability Settlement

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, DECEMBER 13, 2017

David L. Place, JD, Vice President, Director of Lien Resolution Services,

Synergy Settlement Services, Culpeper, Va.

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MEDICARE CONDITIONAL PAYMENTS, MEDICARE ADVANTAGE & HOW TO OBTAIN MEDICARE REFUNDS DAVE PLACE, J.D. VICE PRESIDENT, SYNERGY SETTLEMENT SERVICES DIRECTOR SYNERGY LIEN RESOLUTION SERVICES

Medicare Conditional Payments

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Have your client sign two necessary forms to allow access to his/her Medicare information.

Form A: Proof of Representation https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Downloads/ProofofRepresentation.pdf Form B: Consent to Release http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Downloads/ConsenttoRelease.pdf

The Proof of Representation allows the attorney to act on behalf of the beneficiary. For example, this allows the attorney to negotiate the lien. The Consent to Release allows Medicare to provide information to the attorney. For example, this allows Medicare to send the attorney the payout log.

Step 1 – Forms

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Medicare Forms

8

Medicare Forms

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Report your claim to the Benefits Coordination & Recovery Center (BCRC) for Medicare. You can report one of two ways, by telephone 1-855-798-2627 where you can report up to eight claims at a time or by mail to:

MEDICARE-MSP General Correspondence

P.O. Box 138897

Oklahoma City, OK 73113-8897

Step 2 - Notice

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• Beneficiary Information – Beneficiary's Name – Medicare HIC Number – Beneficiary's Insurer Name & Address – Beneficiary's Health Insurance Claim Number – Beneficiary's Gender & Date of Birth – Beneficiary's Address & Phone Number

• Case Information – Date of Injury – Description of Alleged Injury or Illness or Harm – Type of Claim (Liability Insurance, No-Fault Insurance) – Defendant's Name – Defendant's Insurer Name & Address – Defendant's Claim Number & Policy Number

• Representative Information – Representative/Attorney Name – Law Firm Name – Address & Phone Number

What to Include in Notice

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• Medicare will respond to notice within 14 days.

• You will need to make sure all the information contained in this letter is correct. If it is not, you will need to fill it out accordingly, and send it back to the address on the letter.

• If you do not receive this letter, then you will need to re-submit your documentation.

• From this point on, you will need to send a Correspondence Cover Sheet with any correspondence to Medicare.

• The Correspondence Cover Sheet can be found here: https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Downloads/MSPRC-NGHP-Correspondence-Cover-Sheet.pdf

Step 3 – Rights and Responsibilities

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BCRC Cover Sheet used to ensure proper routing of correspondence

Medicare Forms

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• Sent within 65 days of receiving your Rights and Responsibilities Letter. This letter will list all the claims related to the injuries.

• Conduct an audit of the Conditional Payment Summary

– Provider Name

– Diagnosis Codes

– From-To Dates

– Total Charges

Step 4 – Conditional Payment Summary

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• If unrelated charges are on the Conditional Payment Summary you can request that BCRC remove them. – Contact Medicare noting which claims are not

related and why. – If the injury claimed is complex in nature, provide

medical records to support your dispute – Do not use a highlighter as Medicare scans their

documents in and thus highlighting does not show up.

– Don't forget to send your Correspondence Cover Sheet

Step 5 - Dispute

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MSPRP Portal - Dispute

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Medicare Conditional Payments –

Optional Process Final Conditional Payment

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MSPRP Portal – Final Conditional Payment Process

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MSPRP Portal – Final Conditional Payment Process

120 Notice of Settlement

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MSPRP Portal – Final Conditional Payment Process

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MSPRP Portal – Final Conditional Payment Amount

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MSPRP Portal – Electronic Final Conditional Payment Letter

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MSPRP Portal – Electronic Final Conditional Payment Letter

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MSPRP Portal – Final Conditional Payment Process

120 Notice of Settlement

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MSPRP Portal – Final Conditional Payment Process

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• Once you settle your case advise Medicare. • Download the "Final Settlement Detail Document“

– http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan Recovery/Downloads/Final_Settlement_Detail.pdf

– Provide the information on company letterhead – Total amount of the settlement – Total Amount of Med-Pay or PIP – Attorney Fee Amount paid by the beneficiary – Additional Procurement Expenses Paid by the Beneficiary

• Attached itemized list of these expenses

– Date the Case was Settled

Step 6 – Final Demand Letter

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Medicare Forms – Final Settlement Detail Document

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MSPRP Portal – Final Demand Request

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• C.F.R. 411.37(c) – Medicare payments are less than the judgment or settlement.

• Add (Attorney’s Fees) and (Costs) = Total Procurement Costs • (Total Procurement Costs) / (Gross Settlement Amount) = Ratio • Multiply (Lien Amount) by (Ratio) = Reduction Amount • (Lien Amount) - (Reduction Amount) = Medicare Demand Amount

• C.F.R. 411.37(d)

– Medicare payments are equal to or exceed the judgment or settlement. • Add (Attorney’s Fees) and (Costs) = Total Procurement Costs • (Gross Settlement Amount) - (Total Procurement Costs) = Medicare

Demand Amount

Calculations

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You must pay this demand amount within 60 days or the lien will accrue interest.

Request for Appeal or Waiver does not toll interest.

Interest is due and payable for each full 30 day period the debt remains unresolved.

By law all payments are applied to interest first, principal second.

42 C.F.R.411.24(m)

After receiving payment, Medicare will send a letter stating the lien has been reduced to zero and the case is closed.

Pay or Else!

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• Appeal

• Financial Hardship Waiver

• Compromise

• “Best Interest of the Program” Waiver

Medicare Conditional Payments Post Final Demand Options

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Appeals

APPEAL LEVEL TIME LIMIT FOR FILING

REQUEST

MONETARY THRESHOLD TO BE

MET

I. Redetermination 120 days from date of receipt of

the notice initial determination

None

2. Reconsideration 180 days from date of receipt of

the redetermination

None

3. Administrative Law Judge

(ALJ) Hearing 60 days from the date of

receipt of the

reconsideration

At least $130 remains in

controversy.

4. Departmental Appeals Board (DAB) Review/Appeals Council

60 days from the date of receipt

of the ALJ hearing decision

None

5. Federal Court Review 60 days from date of receipt of

the Appeals Council decision or

declination of review by DAB

At least $1 ,260 remains in

controversy.

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Involves application for a compromise or waiver to both the Benefits Coordination and Recovery Center (BCRC) as well as the Center for Medicare and Medicaid Services (CMS) There are three statutory authorities under which Medicare may accept less than the full amount of its claim:

§1870(c) of the Social Security Act – BCRC (Financial Hardship Waiver) §1862(b) of the Social Security Act – CMS (Best Interest of the Program Wavier) The Federal Claims Collection Act (FCCA) – done by CMS (Compromise)

**If successful, a refund is issued by Medicare**

Post Payment of Final Demand Waiver/Compromise

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• §1870(c) of the Social Security Act;

• Pay the Final Demand amount and then attempt to obtain a partial or full waiver.

• Waiver of recovery should not be requested until the case is settled and Medicare has issued a demand for repayment letter.

• Requests for waiver must be submitted in writing

• Medicare may grant a full or partial waiver if recovery would negatively affect the beneficiary's standard of living compared to how it was before the accident/injury/illness.

Financial Hardship Waiver

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“There shall be no recovery if such recovery would defeat the purposes of this chapter or would be against equity and good conscience.”

The Medicare Secondary Payer Manual does provide example situations of financial hardship that would justify a full or partial waiver consideration. “The beneficiary has spent the settlement proceeds and the only remaining income from which the beneficiary could attempt to satisfy Medicare’s claim would be from the money that is needed for the beneficiary’s monthly living expenses; Beneficiary income and resources are at a poverty level standard An unforeseen severe financial circumstance- For example, waiver would be appropriate if the beneficiary became legally responsible for their grandchildren.”

Financial Hardship Waiver

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A Medicare beneficiary seeking a waiver or compromise of Medicare’s interest is required to submit a Hardship Letter to CMS for

use in their evaluation process. Whenever possible this letter should be written by the beneficiary. The letter needs to express to

CMS why repaying Medicare the amount of their Final Demand is “against equity and good conscience” and has/will create(d) an

“undue hardship”.

1. Facts of Accident

2. Injuries – Physical, psychological, emotional

3. Current Physical, Mental, Emotional state

4. Unrecorded out of pocket expense

a. House Renovation

b. Adult diapers

c. Prescriptions

d. Private nurse or custodial care not paid by Medicare

e. Co-insurance and deductible

f. Accident related dental work

g. Other financial obligations

5. Status of settlement proceeds. Exhausted?

6. Unforeseen financial circumstances---ex. become legally responsible for grandchildren.

7. Degree to which repayment would cause undue hardship

8. Reason why repayment is not justified.

Hardship Letter

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• The Federal Claims Collection Act (FCCA) CMS may suspend or end collection action on a claim when it appears that no person liable on the claim has the present or prospective ability to pay a significant amount of the claim or the cost of collecting the claim is likely to be more than the amount recovered. – The cost of collection does not justify the enforced

collection of the full amount of the claim; – There is an inability to pay within a reasonable time

on the part of the individual against whom the claim is made; or

– The chances of successful litigation are questionable, making it advisable to seek a compromise settlement.”

Post-Settlement Compromise

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• § 1862(b) of the Social Security Act;

• A separate and distinct evaluation than a request under §1870(c) of the Social Security Act (Financial Hardship Wavier) and a request for a Compromise under the Federal Claims Collection Act (FCCA)

• The Secretary may waive (in whole or in part) the provisions of this subparagraph in the case of an individual claim if the Secretary determines that the waiver is in the best interests of the program established under this title

“Best Interest of the Program” Waiver

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MAO Plans

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• Medicare Advantage Plans, sometimes called “Part C” or “MAO,” are offered by private companies approved by Medicare. The MAO Plan provides all of Part A (Hospital Insurance) and Part B (Medical Insurance) coverage. MAO Plans may offer extra coverage, such as vision, hearing, dental, and/or health and wellness programs. Medicare pays a fixed amount for your care every month to the companies offering MAO Plans. These companies must follow rules set by Medicare.

• As Medicare Advantage plans are administered by private insurance companies many of the difficulties that dealing with BCRC or CMS can entail are avoided. Though these plans arguably have the same recovery rights as traditional Medicare, they are often much more open to agreements based upon equity and fairness

• MAO Plans use the Medicare Secondary Payer Act as their recovery vehicle.

Medicare Advantage

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• The Medicare Secondary Payer Act (MSP) provides for a private cause of action when a primary plan fails to reimburse a secondary plan for conditional payments it has made.

“there is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).” - 42 U.S.C. § 1395y(b)(3)(A).

• 42 C.F.R. §422.108(f) extends the private cause of action to Medicare Advantage Plans.

“MAOs will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.”

• Additionally, CMS directors have issued memorandum asserting that:

“notwithstanding recent court decisions, CMS maintains that the existing MSP regulations are legally valid and an integral part of Medicare Part C and D programs.” - CMS, HHS Memorandum: Medicare Secondary Payment Subrogation Rights (Dec. 5, 2011).

Medicare Advantage – Recovery Rights

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• Medicare Advantage Plans will use the same statutory formula to calculate their repayment as CMS (Centers for Medicare and Medicaid Services).*

• C.F.R. 411.37(c)

• Medicare payments are less than the judgment or settlement.

• Add (Attorney’s Fees) and (Costs) = Total Procurement Costs

• (Total Procurement Costs) / (Gross Settlement Amount) = Ratio

• Multiply (Lien Amount) by (Ratio) = Reduction Amount

• (Lien Amount) - (Reduction Amount) = Medicare Demand Amount

• C.F.R. 411.37(d)

• Medicare payments are equal to or exceed the judgment or settlement.

• Add (Attorney’s Fees) and (Costs) = Total Procurement Costs

• (Gross Settlement Amount) - (Total Procurement Costs) = Medicare Demand Amount

* Not all Medicare Advantage Plans agree that they are subject to these reduction regulations. Rawlings advocates this position.

Medicare Advantage – Repayment Formula

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• In Humana Medical Plan, Inc. v. Western Heritage Ins. Co., No. 15-11436 (11th Cir. Aug. 8, 2016), the 11th Circuit Court of Appeals affirmed the U.S. District Court for the Southern District of Florida granting of Humana's Motion for Summary Judgment and held that Humana's right to reimbursement for the conditional payments it made on behalf of plan beneficiary under a Medicare Advantage Plan was enforceable. Additionally, Humana was entitled to double damages pursuant to 42 U.S.C. § 1395y(b)(3)(A).

• Western Heritage had an obligation to independently reimburse

Humana. Because it didn’t, the Court rule that as a matter of law, Humana is entitled to maintain a private cause of action for double damages pursuant to 42 U.S.C. § 1395y(b)(3)(A) and is therefore entitled to $38,310.82 in damages.

• The Eleventh Circuit said that placing the $19,155.41 in trust was not

the same as paying the MAO and that the damages “SHALL” be double.

Medicare Advantage - All Eyes on Florida

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• 42 U.S.C. § 1395y(b)(2)(B)(iii) “In order to recover payment made under this subchapter for an item or service, the United States may bring an action against any or all entities that are or were required or responsible … to make payment with respect to the same item or service … under a primary plan. The United States may … collect double damages against any such entity. In addition, the United States may recover under this clause from any entity that has received payment from a primary plan or from the proceeds of a primary plan’s payment to any entity.”

• 42 C.F.R. §411.24(g) “CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.”

– United States v. Weinberg, 2002 U.S. Dist. LEXIS 12289 (E.E. Pa. July 1, 2002).

– United States v. Harris, 2009 U.S. Dist. LEXIS 23956 (N.D. W. Va. March 26, 2009) affirmed, 334 F. App’x 569 (4th Cir. 2009).

– Denekas v. Shalala, 943 F. Supp. 1073 (S.D. Iowa 1996).

Medicare Advantage – Attorney Liability

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Medicare Advantage – Attorney Liable

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Fighting the Good Fight Pays Off!

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• Percent of “savings” based fee model – 10% of the “savings” (reduction) - Premier Client rate.

• We add value or we don’t take a fee. – If we don’t at least save your client the $500 advance fee

we refund it. – No advance fee for our Medicare Refund service.

• The injury victim comes first. – Synergy caps its fee at 10% of the plaintiffs’ net (after fees,

costs, and repaying any liens) – Premier Client rate.

• Motivated case managers. – Case managers receive bonuses depending on the amount

of “savings” they obtain.

“Plaintiffcentric” Pricing

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Dave L. Place, J.D. Vice President, Director of Synergy Lien Resolution Services dave@synergysettlements.com 407-279-4811

THANK YOU