top 10 medicare compliance myths presented by: charles g. brown, esq. chair, medicare compliance...

Top 10 Medicare Top 10 Medicare Compliance MythsCompliance Myths

Presented By:Presented By:

Charles G. Brown, Esq.Charles G. Brown, Esq.Chair, Medicare Compliance GroupChair, Medicare Compliance Group

Bridget Langer Smith, Esq., MSCCBridget Langer Smith, Esq., MSCCVice Chair, Medicare Compliance GroupVice Chair, Medicare Compliance Group

Katherine S. Gallagher, Esq., MSCCKatherine S. Gallagher, Esq., MSCCAssociate, Medicare Compliance GroupAssociate, Medicare Compliance Group

MedicareMedicareCompliance Compliance

MythsMythsMyth #10Myth #10• Being Medicare compliant means I only have to Being Medicare compliant means I only have to

worry about protecting Medicare’s interests with worry about protecting Medicare’s interests with a Medicare Set-Aside analysis.a Medicare Set-Aside analysis.


MythsMythsMyth #10Myth #10• Wrong. There are actually three areas of Wrong. There are actually three areas of

Medicare compliance that must be addressed in Medicare compliance that must be addressed in each claim.each claim. Medicare Conditional LienMedicare Conditional Lien Medicare Set-AsideMedicare Set-Aside Section 111 Mandatory ReportingSection 111 Mandatory Reporting


MythsMythsMyth #10Myth #10• Conditional Lien SatisfactionConditional Lien Satisfaction

Medicare may pay for a beneficiary’s medical treatment if the Medicare may pay for a beneficiary’s medical treatment if the primary plan “has not made or cannot reasonably be primary plan “has not made or cannot reasonably be expected to make payment … promptly. Any such payment expected to make payment … promptly. Any such payment by the Secretary shall be conditioned on reimbursements of by the Secretary shall be conditioned on reimbursements of the appropriate Trust Fund…” 42 U.S.C. 1395y(b)(2)(B)(i).the appropriate Trust Fund…” 42 U.S.C. 1395y(b)(2)(B)(i).

Medicare has a “Super Lien” if it pays for injury-related care Medicare has a “Super Lien” if it pays for injury-related care for which a primary payer has responsibility.for which a primary payer has responsibility.


MythsMythsMyth #10Myth #10• Conditional Lien SatisfactionConditional Lien Satisfaction

Failure to pay for injury-related expenses can result in the Failure to pay for injury-related expenses can result in the following penalties:following penalties:1.1. CMS can bring suit against any entity involved in the claim, CMS can bring suit against any entity involved in the claim,

including a liability insurer, self-insured defendant and attorney.including a liability insurer, self-insured defendant and attorney.

2.2. CMS can seek double damages.CMS can seek double damages.

3.3. CMS can terminate a plaintiff’s benefits.CMS can terminate a plaintiff’s benefits.


MythsMythsMyth #10Myth #10• Medicare Set-Aside AllocationMedicare Set-Aside Allocation

The setting aside of funds for the The setting aside of funds for the futurefuture care of the care of the claimant which is related to the injury/illness giving claimant which is related to the injury/illness giving rise to the claim or potential claim.rise to the claim or potential claim.


MythsMythsMyth #10Myth #10• Section 111 Mandatory ReportingSection 111 Mandatory Reporting

Requires a primary payer to verify a claimant’s Requires a primary payer to verify a claimant’s Medicare status; andMedicare status; and

Reporting a settlement, judgment, award or other Reporting a settlement, judgment, award or other payment for a Medicare-eligible claimant.payment for a Medicare-eligible claimant.


MythsMyths


MythsMythsMyth #9Myth #9• If the claimant is under age 65, I don’t have to If the claimant is under age 65, I don’t have to

worry about Medicare.worry about Medicare.


MythsMythsMyth #9Myth #9• Wrong. An individual will be Medicare eligible if Wrong. An individual will be Medicare eligible if

they are:they are: 65 years of age or older;65 years of age or older; In receipt of Social Security Disability benefits for a In receipt of Social Security Disability benefits for a

period of 24 months or longer; orperiod of 24 months or longer; or Suffering from end-stage renal failure.Suffering from end-stage renal failure.


MythsMyths


MythsMythsMyth #8Myth #8• If my client or I query a claimant’s Medicare If my client or I query a claimant’s Medicare

eligibility status on the CMS web site and the eligibility status on the CMS web site and the query is returned stating that there is no record query is returned stating that there is no record of a claimant being a Medicare beneficiary, I do of a claimant being a Medicare beneficiary, I do not have to worry about protecting Medicare’s not have to worry about protecting Medicare’s interests.interests.


MythsMythsMyth #8Myth #8• Wrong. The query system is not infallible.Wrong. The query system is not infallible.

The right information needs to be put into the query system The right information needs to be put into the query system in order to obtain a valid query result.in order to obtain a valid query result.

Also, in workers’ compensation cases, if the claimant has a Also, in workers’ compensation cases, if the claimant has a reasonable expectation of Medicare eligibility in the next 30 reasonable expectation of Medicare eligibility in the next 30 months, and the amount of the settlement exceeds $250,000, months, and the amount of the settlement exceeds $250,000, Medicare’s interests must be protected and a formal Medicare’s interests must be protected and a formal Medicare Set-Aside proposal must be sent to CMS.Medicare Set-Aside proposal must be sent to CMS.


MythsMyths


MythsMythsMyth #7Myth #7• In workers’ compensation cases, if the claimant In workers’ compensation cases, if the claimant

is Medicare eligible but the amount of the is Medicare eligible but the amount of the settlement is less than $25,000, I do not need to settlement is less than $25,000, I do not need to worry about a Medicare Set-Aside.worry about a Medicare Set-Aside.


MythsMythsMyth #7Myth #7• Wrong. A workers’ compensation Medicare Set-Aside proposal Wrong. A workers’ compensation Medicare Set-Aside proposal

must be submitted to Medicare in the following situations:must be submitted to Medicare in the following situations: The claimant is currently Medicare eligible and the total amount of the The claimant is currently Medicare eligible and the total amount of the

settlement is greater than $25,000; orsettlement is greater than $25,000; or The claimant has a reasonable expectation of Medicare enrollment within The claimant has a reasonable expectation of Medicare enrollment within

the next 30 months of the settlement date and the anticipated total the next 30 months of the settlement date and the anticipated total amount of the settlement for future medical expenses and disability/lost amount of the settlement for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected wages over the life or duration of the settlement agreement is expected to be greater than $250,000.to be greater than $250,000.


MythsMythsMyth #7Myth #7• However, CMS notes on its web site, in pertinent part, as However, CMS notes on its web site, in pertinent part, as

follows:follows:““CMS wishes to stress that this is a CMS workload review threshold and CMS wishes to stress that this is a CMS workload review threshold and not a substantive dollar or ‘safe harbor’ threshold. Medicare not a substantive dollar or ‘safe harbor’ threshold. Medicare beneficiaries must still consider Medicare’s interests in all WC cases and beneficiaries must still consider Medicare’s interests in all WC cases and ensure that Medicare is secondary to WC in such cases. In other words, ensure that Medicare is secondary to WC in such cases. In other words, if the total settlement amount is $25,000 or less, the parties to the if the total settlement amount is $25,000 or less, the parties to the settlement are still required to consider Medicare’s interests. The settlement are still required to consider Medicare’s interests. The recommended method to protect Medicare’s interest is to enter into a recommended method to protect Medicare’s interest is to enter into a Medicare Set-Aside arrangement…”Medicare Set-Aside arrangement…”


MythsMyths


MythsMythsMyth #6Myth #6• In workers’ compensation cases, Medicare will In workers’ compensation cases, Medicare will

not have a conditional lien because the insurer not have a conditional lien because the insurer has been paying for the claimant’s medical has been paying for the claimant’s medical treatment.treatment.


MythsMythsMyth #6Myth #6• Wrong. Medicare can pay for a Medicare beneficiary’s medical Wrong. Medicare can pay for a Medicare beneficiary’s medical

expenses even if they are on workers’ compensation. expenses even if they are on workers’ compensation. Conditional liens can arise in some of the following situations:Conditional liens can arise in some of the following situations: The claim was initially denied and prompt payment was not being made The claim was initially denied and prompt payment was not being made

by the primary payer for the claimant’s medical treatment related to the by the primary payer for the claimant’s medical treatment related to the injury;injury;

The provider sends bills directly to Medicare for reimbursement;The provider sends bills directly to Medicare for reimbursement; The claimant sends bills directly to Medicare for reimbursement.The claimant sends bills directly to Medicare for reimbursement.


MythsMyths


MythsMythsMyth #5Myth #5• If I am a primary payer under Section 111 If I am a primary payer under Section 111

Mandatory Reporting and I have an agent, I have Mandatory Reporting and I have an agent, I have no reporting responsibilities.no reporting responsibilities.


MythsMythsMyth #5Myth #5• Wrong. Although an agent can act on a primary payer's behalf Wrong. Although an agent can act on a primary payer's behalf

in reporting to Medicare on cases involving Medicare in reporting to Medicare on cases involving Medicare beneficiaries where there is a settlement, judgment, award or beneficiaries where there is a settlement, judgment, award or other payment, primary payers are still responsible for failure to other payment, primary payers are still responsible for failure to properly report.properly report. Primary payers and not agents will be charged $1,000 a day in penalties Primary payers and not agents will be charged $1,000 a day in penalties

per claimant for failure to timely and properly report to Medicare.per claimant for failure to timely and properly report to Medicare. What agents report is just as important as when they report.What agents report is just as important as when they report.


MythsMyths


MythsMythsMyth #4Myth #4• When it comes to Medicare Set-Asides, a legal When it comes to Medicare Set-Asides, a legal

analysis of the claim is not necessary as analysis of the claim is not necessary as Medicare only bases its decision on the medical Medicare only bases its decision on the medical records provided to it.records provided to it.


MythsMythsMyth #4Myth #4• Wrong. Medicare will review judicial decisions and Wrong. Medicare will review judicial decisions and

orders impacting the claim.orders impacting the claim. Legal analysis of the claim can help reduce the Medicare Set-Legal analysis of the claim can help reduce the Medicare Set-

Aside amount.Aside amount. In Medicare’s sample submission under Section 25, it notes In Medicare’s sample submission under Section 25, it notes

that it will review court/workers’ comp board documents.that it will review court/workers’ comp board documents. Failure to include a legal analysis of the claim may result in Failure to include a legal analysis of the claim may result in

the inclusion of medical treatment which is not related to the the inclusion of medical treatment which is not related to the accepted claim.accepted claim.


MythsMyths


MythsMythsMyth #3Myth #3• I can wait until the end of the case to obtain I can wait until the end of the case to obtain

conditional lien information from Medicare.conditional lien information from Medicare.


MythsMythsMyth #3Myth #3• Wrong. Obtaining conditional lien information from Wrong. Obtaining conditional lien information from

Medicare can take approximately three months or Medicare can take approximately three months or longer. Instead,longer. Instead, Get the claimant to sign the appropriate release to obtain Get the claimant to sign the appropriate release to obtain

conditional lien information early on in the claim.conditional lien information early on in the claim. Once conditional lien information is received from Medicare, Once conditional lien information is received from Medicare,

audit the information to see if there are charges that should audit the information to see if there are charges that should not be included in the lien.not be included in the lien.


MythsMyths


MythsMythsMyth #2Myth #2• If I put settlement language in the release If I put settlement language in the release

stating that I protected Medicare’s interests and stating that I protected Medicare’s interests and have the claimant indemnify me in the event have the claimant indemnify me in the event that Medicare’s interests are not protected, I that Medicare’s interests are not protected, I have done my due diligence and Medicare have done my due diligence and Medicare cannot come after me for penalties and fees.cannot come after me for penalties and fees.


MythsMythsMyth #2Myth #2• Wrong. Medicare is not bound by the parties’ Wrong. Medicare is not bound by the parties’

settlement language.settlement language. Putting into the settlement release that you have protected Putting into the settlement release that you have protected

Medicare’s interests is not enough. Language reflecting how Medicare’s interests is not enough. Language reflecting how Medicare’s interests were protected should be contained in Medicare’s interests were protected should be contained in the release.the release.

Medicare can come after any party involved in the claim who Medicare can come after any party involved in the claim who did not protect its interests regardless of whether the release did not protect its interests regardless of whether the release places the burden on the claimant.places the burden on the claimant.


MythsMyths


MythsMythsMyth #1Myth #1• If I need to find out if a claimant is Medicare If I need to find out if a claimant is Medicare

eligible, I can simply ask the claimant or eligible, I can simply ask the claimant or claimant’s counsel regarding his or her claimant’s counsel regarding his or her eligibility status.eligibility status.


MythsMythsMyth #1Myth #1• Wrong. Oftentimes, the status of a Medicare beneficiary’s Wrong. Oftentimes, the status of a Medicare beneficiary’s

entitlement is unknown to both the claimant and claimant’s entitlement is unknown to both the claimant and claimant’s counsel.counsel. Claimant may be awarded Social Security Disability benefits and be entitled Claimant may be awarded Social Security Disability benefits and be entitled

to Medicare and is not aware that they are Medicare eligible or counsel is to Medicare and is not aware that they are Medicare eligible or counsel is not aware of the Medicare eligibility requirements.not aware of the Medicare eligibility requirements.

Obtaining the Social Security award/determination is imperative to Obtaining the Social Security award/determination is imperative to confirming a claimant’s Medicare eligibility status.confirming a claimant’s Medicare eligibility status.

Use discovery to your benefit in obtaining this information.Use discovery to your benefit in obtaining this information. Create a Medicare file within your workers’ compensation file.Create a Medicare file within your workers’ compensation file.


MythsMyths

Case Law UpdatesCase Law Updates

• Big R Towing v. David Wayne Benoit, et al.Big R Towing v. David Wayne Benoit, et al.• Zaleppa v. SeiwellZaleppa v. Seiwell• Bradley v. SebeliusBradley v. Sebelius• United States v. Stricker, et al.United States v. Stricker, et al.• MARC – AJR 42 and HR 4796MARC – AJR 42 and HR 4796

(Medicare Advocacy Recovery Coalition)(Medicare Advocacy Recovery Coalition)

QUESTIONSQUESTIONS

Thank you for attending.Thank you for attending.

For further information, please contact the For further information, please contact the speakers.speakers.

Contact Contact InformationInformation

Charles G. BrownCharles G. [email protected]@dmclaw.com

412-392-5204412-392-5204

Bridget Langer SmithBridget Langer [email protected]@dmclaw.com

412-392-5624412-392-5624

Katherine S. GallagherKatherine S. [email protected]@dmclaw.com

412-392-5413412-392-5413

top 10 medicare compliance myths presented by: charles g. brown, esq. chair, medicare compliance...

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