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May 2017 Newsletter
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NAMSAP Quarterly Newsletter 
Volume 10, Number 2
          May 2017

Shawn Deane, JD, MEd, MSCC, CMSP
Assistant Vice President, Product Development
Dear NAMSAP Members: 

As many of you know, sadly, we lost a legend in our industry the other week. John J. Campbell passed away on April 1st. John had been at the forefront of Medicare compliance, but he was also an expert in other areas, including elder law, special needs and estate planning. There was an outpouring on the NAMSAP listserv in remembrance of John. Our community thought highly of him as a practitioner, educator and pioneer. I have archived posts on the listserv going back over eight years, and in reviewing John's posts it is easy to see that he was a sharp practitioner, was well-spoken and was not one to be held back from truly speaking his mind. He will be missed by his close knit NAMSAP community. His legacy will live on through his numerous publications and to those he mentored and educated and we will be forever grateful for his contributions. Our thoughts of condolence go out to his family and friends.

The Board of Directors, Advisory Council and committee members are hard at work and have been very active. I'd like to highlight a few things:
  • If you didn't know already, NAMSAP is now an approved re-seller for RED BOOK! If you are a NAMSAP member take advantage of special pricing!
  • Co-Chairs Michelle Allan, Gary Patureau and the rest of the Annual Committee are busy planning our best annual event yet. I've seen a draft of the top-secret agenda and I am really looking forward to this September in Baltimore. I'll give folks a hint: the name of this year's conference is "MSP Policy Palooza"
  • Leslie Schumacher and I have been busy planning another year of great NAMSAP webinar content. We just had Mark Popolizio present on MSP case law and April's webinar featured Aaron Frederickson and Patrick Czuprynsk covering Medicaid Secondary Payer: How It Impacts Your Practice.   
  • In response to issues regarding the CRC coming from our membership across the industry, NAMSAP will take the air again to discuss this very importmant component of MSP compliance in an effort to align our orgniazation with CMS's intent.  The date has not been set, but presenters will include Dan Anders of Tower MSA Partners and yours truly.  Stay tuned for more details.
And lastly, don't forget to take advantage of the  Super Early Bird special for our NAMSAP 2017 Annual Educational Conference ("MSP Policy Palooza"), September 25-27 in Baltimore, Maryland.

Rita M. Wilson
CEO Tower MSA Partners, LLC

In this edition of NAMSAP Advisor, we're featuring an article recently published by Michelle Allan, Esq. of Burns White. With more than 130 practicing attorneys, Burns White is a multi-faceted law practice serving multiple industry areas and both large and small businesses. Burns White has been a part of NAMSAP since its inception and its attorneys have served in multiple capacities with NAMSAP committees, its Board of Directors, and as liaisons to the executive committee. As NAMSAP's most recent Platinum Corporate Partner, Burns White has been invited to share a recent article as part of the NAMSAP Advisor featured partner publication. Many thanks to Burns White for its continued partnership with NAMSAP and its contribution to the NAMSAP Advisor.

Michelle A. Allan, Esq.

Pinning down Medicare conditional payment amounts is a dilemma. Amounts increase and decrease throughout the course of a claim. New bills get processed, repricing is applied, disputes are filed. Additional treatment takes place and that process is repeated. Conditional payment letters can be issued numerous times with different amounts. Portal monitoring will show fluctuations. Round and round it goes until final settlement documents are submitted to CMS. Finally the hot potato lands on the conditional payment amount due and reimbursement can be made.

Until that Final Demand for Reimbursement is issued, none of the previous amounts identified by letter, portal, or telephone communication should be relied upon because they are not final. Barbara Shapiro found this out the hard way.

In Shapiro v. The Secretary of the Department of Health and Human Services, a then 79-year old Shapiro was injured in an automobile accident in April of 2011. Medicare eligible by age, Shapiro's medical bills were paid by Medicare while the state action was pending. When settlement negotiations took place, Shapiro and her attorney obtained conditional payment information by mail. The first estimate of reimbursable costs came via conditional payment letter on May 25, 2012 for the amount of $16,940.51. The conditional payment letter stated that the amount was non-final and subject to change. Checking in again closer to settlement, Shapiro obtained a figure by phone of $17,306.03 as of December 14, 2012, just days before her final settlement on or about December 31, 2012. Determined to net $250,000 of her $350,000 and despite her conditional payment letter stating that the amount was non-final and subject to change, Shapiro relied upon the December 14th conditional payment amount to settle within what she believed to be her financial goal.

You can imagine her surprise when she learned after the settlement finalized that the actual reimbursable amount was $23,552.96, not the previously relied upon amount of $17,306.03.

This variance changed things for Shapiro enough for her to appeal the case through all possible levels, eventually making it to the United States District Court in the Southern District of Florida which rendered its decision on March 23, 2017 - more than four years after the settlement - against Shapiro and in favor of the previous determinations.

In the instant case, Shapiro alleged that she and her counsel reasonably relied on the MSPRC's (Medicare Secondary Payer Recovery Contractor) representation by phone that the conditional payment amount of $17,306.03 was the final amount, and thus settled her case. On appeal, she requested a waiver of the recovery, or a portion of the recovery, on the grounds that she was not at fault and this recovery would be against equity and good conscience, one of the two prongs by which a Beneficiary may request a waiver under 42 U.S.C. Section 1395gg(c); 42 C.F.R. Section 358, the other being that the outcome would create a financial hardship.

The question presented to the District Court was whether substantial evidence exists to support the findings of the Secretary. The Court determined that substantial evidence existed that the Medicare Appeals Council (MAC) was correct that it was not reasonable to conclude that the pre-settlement amount sent by phone was the final amount. The Court reasoned that the pre-settlement amounts were not to be relied upon because prior correspondence stated the amounts were not final until after settlement and also because the Plaintiff had notice of what medical payments were made, having herself incurred the treatment.

The Court took it a step further by examining whether Shapiro suffered any material detriment, an analysis that would only arise if it was determined that Shapiro's reliance was reasonable. The MAC had explored this consideration and in its determination stated that the additional demand was such a small fraction of the overall net settlement to Shapiro that there was no evidence of financial hardship. Shapiro felt otherwise and asserted that this determination that the overage was not material was "arbitrary and capricious." The District Court calculated Shapiro to have gained in the end 94% of her settlement expectation, or $226,447.04, which it did not consider to be materially detrimental to the Plaintiff. In that analysis, the Court recalled Hadden v. U.S., (661 F.3d at 304-305), in which it was found that no material detriment was inflicted on the Plaintiff when the Beneficiary owed $62,338.07 to Medicare and only put about $44,000 in his pocket.

So why is this case significant? A Medicare Beneficiary failed to thoroughly read a form letter, wrongfully assuming that a conditional payment amount update was dependable and it wasn't, but not to the extent of any great financial loss. This is not a rare or unusual set of circumstances, nor is the Court's decision inequitable or controversial. This case is interesting for a number of reasons, below in no particular order:

  • This case exemplifies the ongoing Catch 22 quandary of Medicare conditional payment recovery. Medicare wants to recover conditional payments made through the date of the settlement because that is the point at which its claim comes into existence by operation of law. The parties want to properly reimburse Medicare but they do not know how much the reimbursement will be until after the settlement takes place. The parties want to earmark the final conditional payment amount into the overall settlement so the Beneficiary knows how much they will net, but Medicare will not provide that amount absent the settlement occurring. And now amounts are spinning around again. The Strengthening Medicare and Repaying Taxpayers Act (SMART) provides reform to the extent that the parties should be able to rely upon real time amounts posted to the Medicare Secondary Payer Recovery Portal within three days of final settlement. Had Barbara Shapiro and her attorney logged onto the MSPRP just three days before settlement, they could have known the final demand amount and could rely upon it to move forward with certainty.

  • The District Court (and the MAC before it) explore the concept of material detriment to the Beneficiary. While Shapiro still ended up with settlement dollars in her pocket, how is it determined that an overall amount less than she expected is not somehow detrimental to her? How is this determination not arbitrary when there is no analysis other than the Court's notes that she got more than she spent (unlike Hadden) and there is no evidence of financial hardship to the Beneficiary, presumably because that was not the grounds of her waiver request? How little of a settlement would a Beneficiary have to walk away with for a Court to determine that there was material detriment to the Beneficiary? Is it possible to request a waiver based only on the prong that the recovery amount is against equity and good conscience or is the financial hardship prong also necessary to assert in order to prove the other? In any event, the courts do not appear to be overly sympathetic to the Beneficiary when making these determinations.

  • When judicial review is limited to what can be supported by "substantial evidence," defined as "more than a mere scintilla" it is important to ensure that Medicare conditional payment appeals are well documented and performed by a licensed attorney. If a case escalates to the fifth level of appeal before a district court, that is not the time to try to present new evidence. Most courts will want to know before they admit additional information exactly why that documentation was not previously submitted. And no one wants to be in district court trying to make their case on a mere scintilla.

  • Going through the Medicare appeals process does not happen overnight. Shapiro settled her case at the end of 2012 and this determination did not come about until 2017. In between, she appealed to the MSPRC, the Qualified Independent Contractor, an Administrative Law Judge, the MAC and then finally federal district court. Shapiro elected to exhaust all avenues available for Medicare appeals, but this was not without her time and resources likewise being spent. Further, her pursuit was fruitless. How would this play out if a Beneficiary was trying to get medical treatment paid for after their benefits were suspended or terminated?

  • In workers' compensation, Medicare Conditional Payment Notices (CPNs) are now generated in some cases by Medicare Section 111 reporting in lieu of Medicare Conditional Payment Letters (CPLs). Within 30 days of a CPN being issued, a Final Demand for Reimbursement may follow, whether or not final settlement has occurred. Obviously this point was not at play in Shapiro, but is still noteworthy because final settlement is no longer the only way a demand for reimbursement may be issued. In those cases, if Medicare would make ongoing payments, ongoing demands could occur until the claim resolves.

Erin Collins

Our members have consistently reported issues with the Commercial Repayment Center (CRC) and its treatment of conditional payment investigations. Accordingly, NAMSAP intends to address these issues directly with CMS. The primary issues and our "asks" for CMS have been outlined below.If you have additional specific information or case studies regarding issues with conditional payment investigations and/or the CRC, please email the information to
  • Failure to Issue Dispute Outcome Letters:  The CRC has changed their workflow in regards to reviewing timely disputes filed in response to CPNs.  In sum, the CRC is not providing dispute outcome letters in regards to CPN disputes.  Instead, they are simply sending the Final Demand.  At that point, the carrier has to file a formal appeal and perform duplicative work to file an appeal on charges that they have already properly disputed.  Ask:  The CRC should issue a formal response to the dispute prior to issuing the Final Demand so that any unrelated charges are removed before the issuance of the Final Demand.  This will allow for the "dispute" process to work efficiently and eliminate duplicative work for both the CRC and the carriers.
  • Changing the Identified Debtor:  In situations where a claim with Ongoing Responsibility for Medical (ORM) has previously been electronically reported through the Mandatory Insurer Reporting (MIR) process, Medicare utilizes the CRC to pursue recovery for conditional payments during the life of a claim. Once a settlement is reported electronically in the MIR data, Medicare moves the recovery file from the CRC to the BCRC. In the movement from one contractor to the other, Medicare changes from the primary plan to the beneficiary. The consequence is that a different type of authorization is needed by the primary plan to communicate with the BCRC. The authorization document that is needed is a Proof Of Representation (POR) which grants authority to the primary plan or its agent to dispute/identify specific charges on the conditional payment amount. If a POR cannot be obtained as part of the settlement conversation, the parties must specifically state in the settlement agreement that the workers' compensation or no-fault plan/carrier is to remain the debtor.  Ask: BCRC to apply WC/NF authorizations.
  • Multiple Case Identification Numbers:  Where there is an ORM reported through the MIR process, the case is initially handled by the CRC and is assigned a case identification number.  Upon settlement, Medicare moves the recovery file from the CRC to the BCRC.  Oftentimes, this results in assignment of a second (or more) case identification numbers.  After settlement, the parties (Plaintiff/Plaintiff's counsel/primary payer/defense counsel) generally try to ensure that the Medicare contractors' cases areclosed; however, when there are multiple case identification numbers (with different "identified debtors" associated with each one), it becomes confusing and difficult to ensure that thecontractors' cases are closed.  The result is a delay in the disbursement of the settlement funds to the Medicare beneficiary. Ask:  Streamline the interaction between the CRC and the BCRC and either 1) use one case identification number for each claim; or 2) put in place a system where the CRC closes its file once a TPOC is reported and the recovery file is transferred to the BCRC.  Also, make it easy for all parties to a case to have access to the case identification number(s) so that the MSPRP can be utilized.

One of the newest members of the NAMSAP Board of Directors, and the subject of NAMSAP Advisor's featured interview, is Beth Hostetler, RN, BSN. By way of introduction, Beth is a certified Life Care Planner, a Certified Medicare Set- Aside Allocator (MSCC) and a Certified Medicare Secondary Payer Professional (CMSP).

Beth presently serves as Director of Medicare Services in the Corporate Risk Management Department of Albertson's Companies, one of the largest food and drug retailers in North America. In her role with Albertson's, Beth developed and continues to manage Albertson's internal MSP Compliance program for Workers Compensation which includes policy and procedure for MMSEA Section 111 reporting, Conditional payment identification and resolution and the MSA program.
Beth has full oversight over all vendors, including strructured settlement brokers and professional adminstrators and the TPA who administers Albertson's claims outside of California. She routinely provides internal training on Medicare Secondary Payer compliance and all aspects of the MSA process.
As one of the first NAMSAP members from the payer community to be elected to the Board of Directors, Beth is the perfect example of NAMSAP's strategic goal to expand the role of payers in setting future direction for the organization. Today's article will highlight Beth's experience with NAMSAP and why she sees both individual and corporate value in NAMSAP membership and active participation.
  1. How long have you / Safeway been part of NAMSAP?
  2. I have officially been a member since 2009.

  3. Why did you join initially?
  4. I wanted to be a part of a professional association relative to my work for many reasons:
    • Professional development: I was aware of the educational offerings, especially the annual meeting and felt these would strongly enhance my knowledge and understanding of MSP compliance and ultimately enhance my role as Director of our program
    • Networking: NAMSAP is a great opportunity to connect with peers, mentors and industry leaders in order to broaden my perspective , collaborate, and share ideas
    • Intrinsic value of feeling like you make a difference and your voice is heard. As a self - insured employer and payer, we are one of the most important stakeholders in this MSP process and I wanted to do my part and have more representation from this side in the organization as opposed to the vendor community, which seemed to represent the greatest portion of the membership.
    • All of these reasons have helped me tremendously to build and continually improve a robust and innovative MSP compliance program.

  5. You earned your MSCC designation. Was this so that you could prepare MSAs? If not, why?

  6. Initially, in my role, I did perform MSA's as part of my job. Because of the scope of my responsibilities now and national coverage, I no longer write MSA's, but I do review all MSA's performed by our vendor panel. I certainly pursued the designation to assist me in formulating and reviewing MSA's but more so because credentialing enhances knowledge, credibility and professionalism. It certainly helps foster adherence to accepted standards of practice. As an employee of a major Fortune 50 employer and now Director of our Medicare program, it helps to underscore these values and a commitment to what I do.

  7. Why did you decide to run for the BOD?

  8. I spoke above about intrinsic value of making a difference and while I think my membership was mutually beneficial to NAMSAP and me, I wanted to take it to another level. As the adage goes, you get out of something what you're willing to put in. As a board member, we serve on committees as either a committee chair or liaison and this is where you have a chance to make a difference Specifically, I want to help increase the numbers of members from the payer side as it the opinions, experience, and concerns/issues from this side of the equation that matter most and that can drive needed changes.

  9. You joined the Membership Committee recently. Could you share your thoughts as to why this committee was selected?

  10. Specifically, I want to help increase the numbers of members from the payer side as it the opinions, experience, and concerns/issues from this side of the equation that matter most and that can drive needed changes. I want to connect more closely with these individuals for sharing of ideas and experiences and what's working and not working in their respective companies regarding their Medicare programs. I also plan to be more involved in the EBM committee because the reliance and focus on evidenced based medicine is a foundation and hallmark of our managed care and the current committee's focus on EBM and opiates is critical and tremendous impact for us at Albertsons. Lastly, I am also interested in the legislative committee. Albertsons has always had a strong voice and impact on legislative change in Workers compensation and has helped shape much Legislative WC reform in California. There are some bills still looming Relative to MSA's and I want to take a more active role in shaping these and having the opinions of NAMSAP considered.

  11. What value have you received individually from membership? What's the value to Safeway?

    Exactly what I stated in your second question. The networking and building of all sorts of relationships has been fantastic, both from a personal and professional level. The sharing of ideas and collaboration with industry experts has been the most relevant for me compared to other organizations in my industry. It has certainly broadened my knowledge of MSP compliance. The value to Alberston's companies is that it has fostered my professional growth, thereby allowing me to perform my position at higher more informed level. NAMSAP has provided a forum to be heard and put forth payer concerns to the MSA community.

  12. Would you recommend NAMSAP membership to other employers / payers? If so, why?

    Absolutely, for all the benefit discussed above. It will allow employers /payers to keep a pulse on trends, help validate ideas and programs in place ,expose employers/ payers to new ideas and ways of thinking and meet some incredible people in this field!

MSP Policy Palooza, NAMSAP's 14th Annual Educational Conference,
 To Be Held Sept. 27-29 in Baltimore
Elmhurst, IL, April 25, 2017:The National Alliance for Medicare Set-Aside Professionals announced that the 14th Annual NAMSAP Educational Conference, the MSP Policy Palooza 2017, will be held September 27-29 in Baltimore.

Designed for professionals who are involved in Medicare Secondary Payer compliance and Medicare Set-Aside allocation and preparation as well as insurance carriers, third party administrators, employers, attorneys, and others who manage settlements, the conference will present a wide spectrum of MSP and MSA topics, including pending legislation, MSP and opioid policy activity, the current regulatory environment and recent case law. 

"Sessions will delve into aligning MSP processes, workers' compensation and liability MSAs, re-review, Section 111 reporting and ICD-10 Coding, and conditional payments," said Shawn Deane, president of NAMSAP and assistant vice president of Product Development for ISO Claims Partners." One presentation will focus on the status of the war on opioids, including the Surgeon General's #TurntheTideRx campaign endorsed by NAMSAP, and another will evaluate the performance of the new contractor for the Centers for Medicare and Medicaid Services." 

Deane said that NAMSAP selected Baltimore for the conference to make it easier for leaders from the Centers for Medicare and Medicaid Services and other government policymakers to participate in panel discussions and question and answer sessions. MSP Policy Palooza 2017 will be held at the Renaissance Baltimore Harborplace Hotel, September 27-19. A half-day workshop from 9 a.m. to noon on September 27 will help orient new attendees to laws and regulations, the Workers' Compensation MSA Reference Guide, and other resources. For additional information on the 2017 NAMSAP Annual Educational Conference, please visit our website.

Click here to download this press release.

Amy Bilton, MSCC, CMSP
Attorney at Law
Nyhan Bambrick Kinzie & Lowry

In the update below, Amy Bilton highlights recent discussions held as part of the monthly EBM Committee call and provides us with some of the key points of the CDC's recent report Characteristics of Initial Prescription Episodes and Likelihood of Long-Term Opioid Use - United States, 2006-2015

Additional discussion items are included below.
    1. CDC Report
      The new CDC report outlines five situations where the possibility of addiction exponentially increases. Examples are giving a prescription for more than five days, giving a 30 day supply, etc.  We would like to determine how many of our MSAs include these types of scenarios (we all suspected it was 100%).  We suggested working with the data and development group to see whether we could determine which of our submissions fall into these groups.  Members that were also on the Data and Development Committee said they could run that through their committee, but they suspected this would need to be a special task and would take much time to collect the data.  Lita agreed to go back to her organization and see whether this is something that she could provide.  Thereafter, she got back to us and said she could not.  Nonetheless, we would like to put together NAMSAP's own version of the Turn the Tide mission, asking that not only MSA vendors, but also carriers and self-insureds get on board with the new program, which is to avoid opioid abuse from the onset of a claim, and refuse to accept that opioids would be prescribed over life expectancy.

    2. Legal Arguments vs. Opioids.
      We would also like to put together a list of states of what their statutes are on opioid limitations.  Steve Miller agreed to do this and advised he would get back to me within two weeks on this.  He called me while I was out of the office this week and I have not had a chance to get back to him yet.  New Jersey has some new limits on prescribing, however, and we know that many other states have limits too.  This could be used in arguing that the MSA should not include medications over that legal limit.

    3. Part 3 of the Opioids in the MSA webinar series. 
      Based on the CDC's new reports and guidelines, our goal is to contact report authors to discuss policy, and potentially involve some of the authors of these reports in our upcoming webinar.  It was also suggested that the DEA be involved.  A representative from the DEA spoke at the Louisiana conference, and we agreed we should speak to that person about possibly speaking on our webinar.  Gary Patureau also agreed to reach out to Chris Christie and see if he would be interested.

    4. Reference Guide
      No one had any new news about the reference guide being published. We anticipate that there will be something in there regarding opioids.

    5. California's IMR/Formulary
      It was raised by a group member that it was very hard to get opioids out of the MSA when the claims handler continues to pay them.  We would like to use our NAMSAP Turn the Tide movement to argue that carriers should stick by their denials, particularly when they have a California IMR or Utilization Review.  We would like to focus on the industry's obligation to try to avoid death from opioids prescribed in a workers' compensation claim.  We want to focus on respiratory failure, potential liability for poor claim handling causing deaths (perhaps error and omissions claims?), and also focus on state action, policy and how we cannot stand by and do nothing.

    6.  ODG
      Ken reported that work loss data's ODG was acquired by Milliman.  The two entities will remain separate because so many states run their Fee Schedule off ODG.  They will maintain independent and separate lines.  His team is in Washington doing lobbying with CMS.  Ken pointed out that Podesta, the firm they are using in Washington, is pushing for a single PDMP with interactivity throughout all states.  He suggested that Podesta might be able to get us a meeting with CMS.  Discussion was had as to whether we should work to get the ODG worked into the reference guide, particularly since it is tied in with so many state Fee Schedules.  Ken said that he would put this on the agenda with Podesta if the Board was in favor.

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While relationship is not the first word that comes to mind when contacting a government contractor like the Commercial Repayment Center (CRC), successful, long-term, outcomes our best driven by building a relationship with the CRC. A relationship with the CRC is built upon knowing the CRC’s expectations and meeting those expectations. Accordingly, the presenters will layout and connect the dots of CRC’s processes to provide the attendee a step-by-step guide for successfully working with the CRC to investigate, dispute/appeal and reimburse Medicare conditional payments. The discussion will highlight solutions to common causes for delay and areas where the CRC is still improving its processes.

Shawn Deane, JD, MEd, MSCC, CMSP
Daniel Anders, JD, MSCC

Click Here for more information and to register.

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