On Monday, December 21, 2015 the Centers for Medicare and Medicaid Services (CMS) published an Alert entitled: Modification of the Medicare Secondary Payer Recovery Portal (MSPRP) for Inclusion of Final Conditional Payment (CP) Process Functionality. CMS has completed the implementation of an electronic method that allows claimants or their authorized representatives to obtain the final conditional payment amount within three days of final settlement as opposed to initiating lien investigation and resolution in anticipation of settlement without a concrete time frame. The process through the MSPRP is very rigid in its requirements which may limit its usefulness to parties settling workers’ compensation and liability cases.
Background
CMS initiated this process to meet the statutory requirements of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act) which statutorily required access to conditional payment lien amounts by both an insurer and a beneficiary. The statue requires:
- a “protected period” during which a conditional payment demand could considered reliable,
- a formalized dispute process with concrete timeframes for CMS to respond and
- a mechanism to advise CMS of an anticipated settlement (120 days), and a refresh feature allowing up to date conditional payment amounts.
With the recent appointment of the Commercial Repayment Center (CRC) to initiate conditional payment recovery against insurers and primary payers, the Alert addresses some questions regarding the process and the continued role of the Benefits Coordination and Recovery Contractor (BCRC).
Pre-Settlement Final Conditional Payment Amount Process
The Alert makes clear some important procedural requirements to obtain the final conditional payment amount pre-settlement which are consistent with SMART Act requirements:
- First, “authorized” MSPRP users have the option to notify CMS that a recovery case is 120 days (or less) from an anticipated settlement. Any party to the litigation can begin the process through the portal at the appropriate time.
- Second, a user can ensure that relatedness disputes are addressed within 11 business days of receipt of any dispute.
- Third, it allows for the request of a Final Conditional Payment Amount with a time and date stamped final conditional payment summary document before settlement. The conditional payment amount can be relied upon as long as the case is settled within three (3) calendar days of requesting the Final Conditional Payment Amount and, if settlement information is submitted through the MSPRP within 30 calendar days of requesting the Final Conditional Payment Amount.
The Alert adds that a request for a Final Conditional Payment Amount can only be done once per case. This requirement is not included in the SMART Act and appears reflective of CMS’ need to ensure that information is not being provided where imminent settlement is not anticipated. CMS reiterates that if the case is not settled with three days and/or the settlement information is not submitted through the MSPRP within 30 calendar days, the Final CP process, and thus the Final Conditional Payment Amount will be voided. Thereafter, new claims may be added to the case and the CP amount will be modified accordingly. Subsequent disputes will not be held to the 11 day resolution timeframes applicable to disputes raised during the “discrepancy” period mandated by the SMART Act.
Insurer Involvement in Process
CMS included an Important Note distinguishing between cases where recovery will be initiated by the BCRC against the beneficiary/plaintiff and those that will be initiated by the CRC against insurers/primary plans. An insurer and their authorized representatives can initiate the final CP process on their insurer-debtor case as long as a settlement is pending on the case and no outstanding Ongoing Responsibility for Medicals (ORM) exists. Consistent with the CMS roll out of the CRC to assert conditional payment recovery rights where Ongoing Responsibility for Medicals (ORM) has been accepted, the MSPRP now allows an insurer to begin the process only where ORM does not exist. Once the Final CP process has been started by an insurer-debtor, two events will occur:
- The insurer-debtor case will be closed and the debt will be transferred to a new case where the beneficiary is the identified debtor.
- The insurer and their authorized representatives will not be able to work the new beneficiary-debtor case or receive copies of any recovery-related correspondence related to the new beneficiary-debtor case until they obtain and submit an authorization signed by the beneficiary.
The Alert is consistent with the change in philosophy that was reflected in the appointment of the CRC to pursue insurers/primary plans. As noted, where Ongoing Responsibility for Medicals (ORM) exists, the target of recovery by CMS will be the insurer-debtor. As stated in previous ECS Industry News Bulletins, recovery may begin before settlement and, possibly, on multiple occasions. Where ORM does not exist, the beneficiary will be responsible for lien satisfaction and, while the insurer carrier can initiate the conditional payment recovery process using the new MSPRP, active participation in the process cannot be had without authorization on behalf of the beneficiary. Thus, new releases are required to be signed by the beneficiary for an insurer to be allowed to receive information, dispute a conditional payment amount, and to participate in any resolution. CMS MSPRP development and the existence of the CRC have drawn a clear distinction regarding its thought process. Where ORM exists, the CRC will pursue the insurer, and where it does not, the beneficiary will be responsible.
Analysis
From a practical perspective, CMS has made the conditional payment recovery process both counterintuitive and more cumbersome. In most typical workers’ compensation cases, ORM exists. Presumably, the CRC will initiate recovery efforts against the insurer/carrier and the MSPRP would be utilized to resolve any conditional payments. However, in most liability cases and denied workers’ compensation cases, ORM has not been accepted and the significant information gathering, dispute, appeal and updating features will be left to the beneficiary and their representatives absent a signed authorization in each instance. This process limits the role of the insurer/carrier to only the initiation of the process as opposed to ensuring active participation.
When considering the intent of the SMART Act to ensure to all litigants ready, reliable and timely access to conditional payment information and to allow for simplified procedures for challenging or satisfying Medicare’s interests, the MSPRP and the new CRC process has fallen short of those goals. By essentially limiting insurer/carrier participation in the conditional payment recovery process based solely upon the acceptance of ORM, CMS has placed a new road block in the path of insurers/carriers in achieving timely and uncomplicated claim resolution.
ECS will continue to monitor the new MSPRP process and its effects following the launch date. In the interim, ECS will conduct a series of webinars regarding the procedural and practical aspects of the conditional payment process including the CRC, BCRC, dispute processes, time limitations and best practices. See the schedule below for dates and times.
ECS Web Presentation: Guide to the New CMS Pre-Settlement Final Conditional Payment Amount Process
Wednesday, January 13, 2016 – click here to register
2:00 pm | Eastern Standard Time (New York, GMT-05:00) | 1 hr
Thursday, January 14, 2016 – click here to register
4:00 pm | Eastern Standard Time (New York, GMT-05:00) | 1 hr
Having problems registering? Click here for support.
