Medicare Secondary Payer Compliance Update Presented by Heather

Medicare Secondary Payer Compliance Update Presented by: Heather Schwartz Sanderson, Esq. Chief Legal Officer, Franco Signor LLC

Agenda • Workers’ Compensation Medicare Set-Asides (WCMSAs)/Non-Submit Alternatives • Liability Medicare Set-Asides (LMSAs) and No-Fault Medicare Set-Asides (NFMSAs) • Traditional Conditional Payments and Medicare Advantage Plan (MAP)/Part D Conditional Payments • Provide Accurate Information Directly (PAID) Act • Medicaid Liens

WCMSAs / Non-Submit Alternatives • What is a WCMSA and its intended purpose? § Protect future cost shifting to Medicare • CMS Submission Thresholds § Class II • Why do parties submit a WCMSA to CMS for approval? § It has become the industry standard § Finality in settlement § Medicare indicates there are “no safe harbors”

WCMSAs / Non-Submit Alternatives (cont. ) • Flaws in the CMS submission and approval process § No due process/appeals process if dissatisfied with determination § CMS over allocates opioids and prescription drugs § No use of evidence based medicine • Is it required to submit a WCMSA to CMS? § No, CMS submission is voluntary § Parties may settle with a non-submitted MSA

LMSAs/NFMSAs • Review process coming for LMSAs? § CMS continues to indicate that a formal voluntary process for LMSAs/NFMSAs will be created. • Guidance to medical providers § Indicates that CMS is laying the groundwork for providers to bill the Workers’ Compensation Medicare Set-Aside (WCMSA)/LMSA/NFMSA instead of billing Medicare. • Alerts issued § CMS seeking stakeholder feedback in the near future on proposed review process for LMSAs/NFMSAs. • Workers’ Compensation Review Contractor (WCRC) Request for Proposal (RFP)§ Includes requirement for new contractor to review LMSAs/NFMSAs potentially beginning July 1, 2018. Here we are in 2019 - is a process coming?

LMSAs/NFMSAs (cont. ) • Serious concerns among the industry § LMSAs/NFMSAs will cause delay in settlement and increase costs. • Many have questioned CMS’ legal ability to require a LMSA/NFMSA. • It is unclear how CMS would review an LMSA § Factors such as comparative negligence, policy limits, and other issues present in liability and no-fault claims that are not present in workers’ compensation claims.

Traditional, Medicare Advantage Plan (MAP) and Part D Conditional Payments • Understand the difference between Medicare Part A, B, C & D § Medicare Parts A and B- Traditional Medicare § Medicare Part C- Medicare Advantage § Medicare Part D- Prescription Drugs • MAPs are gaining double damages’ rights in several jurisdictions§ 3 rd and 11 th Circuit are the only established Circuits with case law in favor of MAPs having a double damages right to recovery.

Traditional, Medicare Advantage Plan (MAP) and Part D Conditional Payments (cont. ) • Strategic filing § Humana and other MAPs are strategically filing in other jurisdictions to establish precedent. • MSP Recovery LLC § An entity solely formed to file private cause of actions on behalf of MAPs, is filing class actions nationwide against nearly every insurance carrier. • Best Practices § Establish Best Practices immediately for the 6 states at the very least. All other states, an inquiry should at least be made for MAP/Part D enrollment.

PAID Act • Why the concern? § Primary plans do not have a centralized methodology to determine a claimant’s Medicare Part C/D, or Medicaid enrollment. • CMS has this information § A legislative fix is needed to force CMS to provide this data to Responsible Reporting Entities (RREs). • SPARC (Provide Accurate Information Directly) Act § Plan is to be re-introduced in 2019 and will gain momentum.

Medicaid • Murray/Ryan Budget Deal § Went into effect on October 1 st allowing Medicaid agencies to recover 100% of dollars expended (Medicaid is no longer limited to the medical portion of the settlement). • Current political climate § Current CMS Administrator, Seema Verma, is in favor of block grants to states which would inevitably provide less dollars to states for their Medicaid agencies. • Proactively determine Medicaid enrollment § Notify the state Medicaid agency of claim/settlement (if required under state law).

Questions 11

Thank You 12