Top 10 Medicare Compliance Myths

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Top 10 Medicare Compliance Myths

• Presented By
• Charles G. Brown, Esq.Chair, Medicare Compliance
  Group
• Bridget Langer Smith, Esq., MSCCVice Chair,
  Medicare Compliance Group
• Katherine S. Gallagher, Esq., MSCCAssociate,
  Medicare Compliance Group

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MedicareCompliance Myths

• Myth 10
• Being Medicare compliant means I only have to
  worry about protecting Medicares interests with
  a Medicare Set-Aside analysis.

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MedicareCompliance Myths

• Myth 10
• Wrong. There are actually three areas of
  Medicare compliance that must be addressed in
  each claim.
• Medicare Conditional Lien
• Medicare Set-Aside
• Section 111 Mandatory Reporting

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MedicareCompliance Myths

• Myth 10
• Conditional Lien Satisfaction
• Medicare may pay for a beneficiarys medical
  treatment if the primary plan has not made or
  cannot reasonably be expected to make payment
  promptly. Any such payment by the Secretary
  shall be conditioned on reimbursements of 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 for which a primary payer has
  responsibility.

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MedicareCompliance Myths

• Myth 10
• Conditional Lien Satisfaction
• Failure to pay for injury-related expenses can
  result in the following penalties
• CMS can bring suit against any entity involved in
  the claim, including a liability insurer,
  self-insured defendant and attorney.
• CMS can seek double damages.
• CMS can terminate a plaintiffs benefits.

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MedicareCompliance Myths

• Myth 10
• Medicare Set-Aside Allocation
• The setting aside of funds for the future care of
  the claimant which is related to the
  injury/illness giving rise to the claim or
  potential claim.

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MedicareCompliance Myths

• Myth 10
• Section 111 Mandatory Reporting
• Requires a primary payer to verify a claimants
  Medicare status and
• Reporting a settlement, judgment, award or other
  payment for a Medicare-eligible claimant.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 9
• If the claimant is under age 65, I dont have to
  worry about Medicare.

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MedicareCompliance Myths

• Myth 9
• Wrong. An individual will be Medicare eligible
  if they are
• 65 years of age or older
• In receipt of Social Security Disability benefits
  for a period of 24 months or longer or
• Suffering from end-stage renal failure.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 8
• If my client or I query a claimants Medicare
  eligibility status on the CMS web site and the
  query is returned stating that there is no record
  of a claimant being a Medicare beneficiary, I do
  not have to worry about protecting Medicares
  interests.

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MedicareCompliance Myths

• Myth 8
• Wrong. The query system is not infallible.
• The right information needs to be put into the
  query system in order to obtain a valid query
  result.
• Also, in workers compensation cases, if the
  claimant has a reasonable expectation of Medicare
  eligibility in the next 30 months, and the amount
  of the settlement exceeds 250,000, Medicares
  interests must be protected and a formal Medicare
  Set-Aside proposal must be sent to CMS.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 7
• In workers compensation cases, if the claimant
  is Medicare eligible but the amount of the
  settlement is less than 25,000, I do not need to
  worry about a Medicare Set-Aside.

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MedicareCompliance Myths

• Myth 7
• Wrong. A workers compensation Medicare
  Set-Aside proposal must be submitted to Medicare
  in the following situations
• The claimant is currently Medicare eligible and
  the total amount of the settlement is greater
  than 25,000 or
• The claimant has a reasonable expectation of
  Medicare enrollment within the next 30 months of
  the settlement date and the anticipated total
  amount of the settlement for future medical
  expenses and disability/lost wages over the life
  or duration of the settlement agreement is
  expected to be greater than 250,000.

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MedicareCompliance Myths

• Myth 7
• However, CMS notes on its web site, in pertinent
  part, as follows
• CMS wishes to stress that this is a CMS
  workload review threshold and not a substantive
  dollar or safe harbor threshold. Medicare
  beneficiaries must still consider Medicares
  interests in all WC cases and 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 settlement
  are still required to consider Medicares
  interests. The recommended method to protect
  Medicares interest is to enter into a Medicare
  Set-Aside arrangement

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 6
• In workers compensation cases, Medicare will not
  have a conditional lien because the insurer has
  been paying for the claimants medical treatment.

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MedicareCompliance Myths

• Myth 6
• Wrong. Medicare can pay for a Medicare
  beneficiarys medical expenses even if they are
  on workers compensation. Conditional liens can
  arise in some of the following situations
• The claim was initially denied and prompt payment
  was not being made by the primary payer for the
  claimants medical treatment related to the
  injury
• The provider sends bills directly to Medicare for
  reimbursement
• The claimant sends bills directly to Medicare for
  reimbursement.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 5
• If I am a primary payer under Section 111
  Mandatory Reporting and I have an agent, I have
  no reporting responsibilities.

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MedicareCompliance Myths

• Myth 5
• Wrong. Although an agent can act on a primary
  payer's behalf in reporting to Medicare on cases
  involving Medicare beneficiaries where there is a
  settlement, judgment, award or other payment,
  primary payers are still responsible for failure
  to properly report.
• 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.
• What agents report is just as important as when
  they report.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 4
• When it comes to Medicare Set-Asides, a legal
  analysis of the claim is not necessary as
  Medicare only bases its decision on the medical
  records provided to it.

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MedicareCompliance Myths

• Myth 4
• Wrong. Medicare will review judicial decisions
  and orders impacting the claim.
• Legal analysis of the claim can help reduce the
  Medicare Set-Aside amount.
• In Medicares sample submission under Section 25,
  it notes that it will review court/workers comp
  board documents.
• Failure to include a legal analysis of the claim
  may result in the inclusion of medical treatment
  which is not related to the accepted claim.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 3
• I can wait until the end of the case to obtain
  conditional lien information from Medicare.

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MedicareCompliance Myths

• Myth 3
• Wrong. Obtaining conditional lien information
  from Medicare can take approximately three months
  or longer. Instead,
• Get the claimant to sign the appropriate release
  to obtain conditional lien information early on
  in the claim.
• Once conditional lien information is received
  from Medicare, audit the information to see if
  there are charges that should not be included in
  the lien.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 2
• If I put settlement language in the release
  stating that I protected Medicares interests and
  have the claimant indemnify me in the event that
  Medicares interests are not protected, I have
  done my due diligence and Medicare cannot come
  after me for penalties and fees.

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MedicareCompliance Myths

• Myth 2
• Wrong. Medicare is not bound by the parties
  settlement language.
• Putting into the settlement release that you have
  protected Medicares interests is not enough.
  Language reflecting how Medicares interests were
  protected should be contained in the release.
• Medicare can come after any party involved in the
  claim who did not protect its interests
  regardless of whether the release places the
  burden on the claimant.

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MedicareCompliance Myths
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MedicareCompliance Myths

• Myth 1
• If I need to find out if a claimant is Medicare
  eligible, I can simply ask the claimant or
  claimants counsel regarding his or her
  eligibility status.

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MedicareCompliance Myths

• Myth 1
• Wrong. Oftentimes, the status of a Medicare
  beneficiarys entitlement is unknown to both the
  claimant and claimants counsel.
• 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 not aware of the Medicare
  eligibility requirements.
• Obtaining the Social Security award/determination
  is imperative to confirming a claimants Medicare
  eligibility status.
• Use discovery to your benefit in obtaining this
  information.
• Create a Medicare file within your workers
  compensation file.

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MedicareCompliance Myths
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Case Law Updates

• Big R Towing v. David Wayne Benoit, et al.
• Zaleppa v. Seiwell
• Bradley v. Sebelius
• United States v. Stricker, et al.
• MARC AJR 42 and HR 4796(Medicare Advocacy
  Recovery Coalition)

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• QUESTIONS

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• Thank you for attending.
• For further information, please contact the
  speakers.

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Contact Information
Bridget Langer Smith bsmith_at_dmclaw.com 412-392-562
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Katherine S. Gallagher kgallagher_at_dmclaw.com 412-3
92-5413
Charles G. Brown cbrown_at_dmclaw.com 412-392-5204