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NAMSAP October 2018 Newsletter
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NAMSAP Quarterly Newsletter

Volume 11, Number 3 | October 2018

IN THIS ISSUE:
•  Letter from NAMSAP President
•  Annual Conference Highlights
•  Upcoming Webinars
•  Regulation Update: Does the Medicare Secondary Payer Act Preempt State Law?
•  Subscription Services
•  Committee Updates


01 | LETTER FROM THE NAMSAP PRESIDENT

  By: Rita Wilson
 
Chief Executive Officer
 
Tower MSA Partners

 

Dear NAMSAP Members: 

As we look ahead to the final quarter of 2018 and the completion of what has been one of the most aggressive strategic plans in NAMSAP’s history, I have only one comment, “WOW!!”  What an incredible year it has been for our organization, and what an honor to work with so many talented and committed professionals.  It is only through the combined efforts of a strong board of directors, advisory council and committee members, and the consistent execution of a committed association management team that last year’s ideas became actionable goals for 2018 and were actually achieved.  Many thanks to all those who accepted the challenge and led the charge! 

Below are some of the 2018 highlights:

  1. ODG (Official Disabilities Guidelines) was added to NAMSAP’s Subscription Services offering at a significantly discounted cost.
  2. As of July 1, 2018, NAMSAP completed the rollout of its MSCC Pre-Certification Educational Course.  The program, developed by NAMSAP member experts, includes nine modules, as well as a separate peer-reviewed practicum, each designed to provide current information on policies, guidelines and current trends in Medicare Secondary Payer compliance.  With the release of the MSCC course, NAMSAP has also added an MSCC sub-committee as part of the education committee. 
  3. For the first time in NAMSAP history, the Webinar Committee offered 11 different webinars covering all aspects of MSP compliance and including industry experts, both internal to NAMSAP and across the industry. YTD, these webinars have been attended by approximately300 participants!
  4. NAMSAP’s Liability MSA Committee was invited to meet with CMS, and in follow up to this meeting has been encouraged to propose recommendations to CMS for the LMSA review process.  This committee also revisited and re-released the Liability MSA ‘Best Practices’ guidance for those seeking to consider Medicare’s interests when settling liability claims that involve class I and II Medicare beneficiaries.
  5. NAMSAP’s Evidence Based Medicine Committee, under the leadership of Amy Bilton and Gary Patureau, prepared and submitted recommendations to CMS to be included in its WCMSA review process for MSAs where long term opioids are included.  This initiative has been in the works for more than 5 years and has now earned NAMSAP national attention from both regulatory and legislative leadership.
  6. Julie Fuselier, NAMSAP’s Executive Director, prepared and presented the NAMSAP BOD orientation training program for all BOD and Advisory Committee.  This will be required training for all future board of director nominees.
  7. The Data and Development committee obtained the dataset being used by NCCI (National Council of Compensation Insurance) in its review of MSA performance metrics.  The goal for 2019 will be to extend the DDC’s data collection to include many of the new data elements and to participate with NCCI on future MSA related projects.  
  8. The Annual Conference Committee just completed one of NAMSAP’s most successful educational conferences with expert presentations from experts across the MSP industry.  As a result of their efforts and those of all who helped to plan and execute this year’s conference, I am pleased to announce that we have commitments already from Steve Forry, Director of MSP Services, Jacqueline Cipa, Deputy Director of MSP Services and Ted Doyle, VP, Healthcare Markets, Performant Financial Corp (CRC) to attend and participate in next year’s conference.  In addition to these, we hope to add staff from Capitol Bridge, LLC. (WCRC) as a presenter / participant as well.   
  9. As a culmination to NAMSAP’s combined efforts to impact MSP compliance in a positive way, we have secured a commitment from CMS to partner with NAMSAP to build open dialogue to address our issues and concerns, and to have a ‘heads up’ on CMS policy changes via quarterly conference calls.  We hope to finalize the process and submit our first agenda proposal in the next 30 days and continue to finetune going forward.  This is an incredible achievement for NAMSAP and is directly attributable to all who have worked to put NAMSAP in the forefront of MSP clinical, compliance and public policy issues. 

Q4 is set to be our busiest quarter of the year as we elect new board members, prepare our strategic plan for 2019 and finalize NAMSAP’s 2019 budget.  But before we look ahead to 2019, however, I’d like to take this opportunity to thank 3 incredible professionals who have served NAMSAP for several years, as committee chairs, as board and executive committee members, even in the role of president.  It was my pleasure at the annual conference to recognize and thank Gary Patureau, Kimberly Wiswell and Christine Melancon for their service as they rotate off NAMSAP’s board.  While they will not be board members, however, make no mistake, all will remain in vital roles within our committee leadership.  They have left their mark on NAMSAP for many years, and we look forward to many more years of active involvement.  I hope you will join me in honoring these 3 individuals and sharing NAMSAP’s appreciation for their participation.

In closing, the involvement and support of every member is key to a strong finish to 2018.  As you’ve all heard me say many times, there is no better organization than NAMSAP to lead the MSP industry in advocacy and education through the collaborative efforts of its members, and no better time than today to join and participate. 

 In the words of Ralph Marston, “Start strong.   Stay strong.  Finish strong.” 

  

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02 | ANNUAL CONFERENCE HIGHLIGHTS

 

Communication, Cooperation, and CMS
By: Rasa Fumagalli, CMSP, MSP Compliance Attorney, Nyhan, Bambrick, Kinzie, & Lowry

 

This year’s NAMSAP Annual Conference took place at the Lord Baltimore Hotel. The Conference was set in a splendid ballroom complete with majestic chandeliers and a behind the scenes story of a resident ghost.  (Did anyone see her?)  The anticipation of speakers from CMS also energized the group.

The first session of the Conference began with agency key note speaker Jacqueline Cipa, Deputy Director, Division of Medicare Secondary Payer Program Operations from CMS. Ms. Cipa discussed the Medicare Secondary Payer recovery process and graciously answered questions from the audience on related topics. This was followed by a lively industry key note discussion between Amy Bilton and Rear Admiral Pamela Schweitzer, former Chief Pharmacy Officer of the U. S. Public Health Service on the opioid epidemic, the opioid projection methodology in the WCMSA as well as policy considerations.  The day closed with a happy hour on the hotel rooftop deck.

The second day began with a Skype Question and Answer presentation from Ted Doyle of Performant Financial Corporation, the new Commercial Repayment Center (CRC) contractor and his colleagues regarding their recent transition to the CRC position.  Post lunch presentations began with Bill Delaney’s unexpected singing of a customized “Good Afternoon Baltimore” song from Hairspray.  Other highlights of the Conference included panel discussions on the liability MSA, Special Needs Trusts, Medicaid, conditional payment recovery dispute strategies, Medicare Advantage Plan reimbursements as well as MSA cost mitigation strategies. Speakers also engaged the audience in discussions of the new Workers’ Compensation Review Contractor, trend spotting and data analysis.

CMS’ presence and participation in the annual Conference represents a willingness to improve communication and foster greater cooperation between the various stakeholders in the MSP compliance arena.  Given CMS’ interest in attending the 2019 Conference as well, this is the start of something good.



03 | UPCOMING WEBINAR

  

NOVEMBER WEBINAR: Medicare Case Law Update - What are the Courts Saying?
November 13, 2018 - 2:00 PM ET

Presented by Mark Popolizio, Vice President, MSP Compliance and Policy, ISO Claims Partners

Medicare Secondary Payer (MSP) issues are finding their way to the courts. In this session, Mark Popolizio (a founding NAMSAP member and former NAMSAP vice-president) catches you current on recent court decision and their practical claims impact. Click here to learn more about our and register!

LEARN MORE ABOUT WEBINARS >

 

 


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04 | REGULATION UPDATE

 

Does the Medicare Secondary Payer Act Preempt State Law?
By: Jean S. Goldstein, MEDVAL Senior Legal Counsel, MSP Compliance

The Maryland Court of Special Appeals succinctly addressed this question several months ago in Netro v. Greater Balt. Med. Ctr., Inc., No. 1990, 2018 Md. App. LEXIS 679 (App. July 5, 2018). Netro is also a case in which the Fourth Circuit was added to the growing list of jurisdictions addressing who can sue under the private cause of action provision of the Medicare Secondary Payer Act (“MSP”) and when double damages may apply. The MSP provides that "[t]here is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement)…” 42 U.S.C. §1395y(b)(3)(A). 

In Netro, the Fourth Circuit held that a personal representative of a Medicare beneficiary’s estate had standing to sue under the MSP, allowing for a private cause of action to proceed.  However, the Fourth Circuit also found that the Defendant did not fail to reimburse Medicare for conditional payments.  Most recently, the Court of Special Appeals, Maryland’s intermediate appellate court, addressed an additional MSP question related to Netro: whether the MSP preempts a Maryland state law.

Netro was originally brought as a medical malpractice suit in a Maryland state court by a personal representative (“Netro”) of a Medicare beneficiary’s estate, against the Greater Baltimore Medical Center (“GBMC”).  After a trial on the merits, a jury returned a verdict for damages, which included compensation for conditional payments made by Medicare for the decedent’s treatment.  As a result of the verdict, GBMC became liable under federal law for the conditional payments Medicare made for decedent’s treatment as the “primary payer.”  Pursuant to the MSP, Medicare is to be secondarily responsible for expenses covered by group health insurance, a workers’ compensation plan, or under an automobile, liability, or no-fault insurance policy. See 42 U.S.C. § 1395y(b)(2).  Despite being a secondary payer, Medicare also has a statutory right to make payments for treatment or services when payment from a primary payer will not be made promptly. Payments are made on the condition that Medicare can recover the payments made from the primary payer. 

Following the Netro verdict, the estate was required to repay the payments Medicare made from the total judgment received.  However, GBMC filed a post-trial motion seeking to reduce the amount of the initial judgment and obtained a reduced judgment.  Netro then filed a federal suit under the private cause of action provision of the MSP, alleging that GBMC refused to pay the state court judgment.  After the filing of the federal suit, GBMC paid the estate the amended final judgment amount plus post-judgment interest, and subsequently filed a motion to dismiss the action for lack of standing, and because it did not fail to pay. The Fourth Circuit in addressing the federal question, held that while Netro’s estate had standing to bring the matter before the Court, GBMC did not fail to pay the funds owed to Medicare. 

At the root of the MSP question before the Netro Court, is a Maryland state law.  The law provides that a plaintiff who brings a negligence action can put into evidence the bill submitted by a health care provider, and the defendant is prohibited from bringing the jury’s attention to the fact that a portion of the bill has been written-off.  Nevertheless, pursuant to Maryland Code, Courts and Judicial Proceedings Article §3- 2A-09 (“the Maryland Act”), a defendant against whom a verdict for past medical expenses has been entered may file a post-trial motion to reduce the judgment by the amount of the write-offs.  GBMC filed a post-trial motion to reduce the judgment pursuant to the Maryland Act, in consideration of the amount of the medical expenses which were written off.  Plaintiff/Appellant filed an opposition to the motion and asserted that the Maryland Act should not be applied because the MSP preempts it.  Plaintiff/Appellant further contended that if the provisions of the Maryland Act did not exist Medicare would receive more in repayment of the amount conditionally paid by Medicare, than it would if the Maryland Act was enforced. Plaintiff/Appellant also asserted that the Maryland Act conflicts with the “paramount Congressional purpose” of the MSP; the “paramount purpose” being that the Medicare Program be reimbursed for its conditional payments “to the maximum extent possible.” Netro v. Greater Balt. Med. Ctr., Inc, at 9.  Essentially, the Plaintiff asserted that with application of the Maryland Act, Medicare would be entitled to less repayment.  

In addressing the issue of whether the MSP preempts Maryland law, the Court opined that the congressional intent and purpose of the MSP was to ensure that Medicare was the secondary payer of medical bills to the greatest extent possible, and for Medicare claims to take a priority right of recovery. 

The court further noted the circumstances when federal law may preempt state law, specifically, when either:

  1. the state law “sharply” interferes with, or is directly contrary to a federal law; or
  2. when compliance with both federal and state law is a physical impossibility. Id. at 27.

The Court of Special Appeals applied the circumstances to the matter before the Court, as follows:

Does the Maryland Act “sharply interfere” with or is it directly contrary to the MSP?

The MSP spells out the amount for which Medicare is entitled to recover. Specifically, “[a] primary plan and an entity (such as appellant) must reimburse Medicare “for any payment made” by Medicare “with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.” Id. at 28-29.  In the instant matter, Medicare’s priority right to recovery was paramount to any other claim, as there were no competing claims between GBMC and any other insurer.  Therefore, the Maryland Act did not “sharply” interfere with Medicare’s priority right to recovery for payments made, and Medicare’s claims remained paramount even after the Maryland Act was implemented.  

Is compliance with both the MSP and Maryland Act a physical impossibility?

The MSP requires full reimbursement of all conditional payments made.  The conditional payments made by Medicare for all items and services in Netro totaled $157,730.75; and therefore, Defendant’s obligation to repay Medicare was also $157,730.75.  The Maryland Act could be implemented without any effect on the amount Medicare would recover.  Furthermore, the Maryland Act was not “directly contrary” to the MSP, or Medicare’s priority right to full recovery of the payments made.  Therefore, the Court found that compliance with both the Maryland Act and the MSP was not a “physical impossibility.”

The Court held that the MSP does not preempt any provisions of the Maryland Act primarily, because the Act does not interfere or conflict with the purpose of the MSP.  The purpose being that Medicare be the secondary payer.  As such, the Maryland law allowing for a reduction in the judgment amount was applicable; enabling Medicare to be reimbursed for the medical payments that were made, rather than all the medical payments billed. Ultimately, Netro stands for the premise that State law dictates the standards of compensability as long as it does interfere with the purpose of the MSP.

Interestingly, a Florida Court of Appeals, also recently addressed the issue of whether a state law is preempted by the MSP, in Ocean Harbor Cas. Ins. v. MSPA Claims, 1, 43 Fla. L. Weekly 2219 (Dist. Ct. App. 2018).  Ocean Harbor specifically addressed whether a class certification was appropriate in an MSP matter, and in doing so, the Court aptly noted that the case hinged on an intersection of State law and Federal Medicare law.  The Court opined that the MSP was never intended to broadly preempt State insurance law, noting that reimbursement rights under the MSP are not automatic, and that reimbursement obligations must be demonstrated under State law.  The Ocean Harbor Court also cited to case law which supports the harmonious relationship between the MSP and State law, with the foremost goal being that Medicare be the payer of last resort, once the underlying reimbursement obligation has been demonstrated.  This case is yet another example that the MSP does not dictate the standards of compensability, but simply the order of payment when a Medicare beneficiary has an alternate and primary source of payment for medical treatment. 

In general, reimbursement obligations and rights will ultimately be controlled by state law.  However, a state law cannot directly conflict with a federal law.  In cases involving MSP considerations, any state law that purposefully interferes or conflicts with the MSP, particularly with the ability to obtain full reimbursement or interferes with Medicare’s status as a payer of last resort, will likely not survive.  The recent case law only solidifies the MSP’s position with respect to federal preemption.  In MSP considerations, state law can survive if it does not stand in the way of the MSP; and if that condition is met, the MSP does not preempt state law. 


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05 | SUBSCRIPTION SERVICES

 

 

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06 | COMMITTEE UPDATES

 

NAMSAP's committees are hard at work pushing forward the association's strategic goals.  Below is a list of the committees and just a few of their latest highlights - we encourage you to contact the co-chairs to volunteer your expertise as part of the committee.

  • Annual Meeting Committee
    • Co-Chairs: Michelle Allan, mallan@grsm.comGary Patureau, Gary@Lasie.org
    • Highlights: After one of the most successful NAMSAP conferences in history, the committee is already hard at work planning for 2019.  At this time the committee is considering a change in venue for 2019 in Baltimore and is also considering doing two different tracks to allow for basic 101 educational sessions and more advanced sessions to be provided at the same time. 
  • Communications Committee
    • Co-Chairs: Rasa Fumagalli, ref@nbkllaw.comCiara Koba, ckoba@grsm.com
    • Highlights: The committee continues working on logo and website rebranding in addition to newsletter and social media outreach.
  • Data and Development Committee
    • Co-Chairs: Sandy Mackler, sandra@macklerassociates.comFran Provenzano, fran@msaspecialists.com
    • Highlights: Since the WCRC Contractor has taken over, the committee continues to receive data and noting inconsistencies in procedure prices and are working on strategies to address.
  • Evidence Based Medicine Committee 
    • Co-Chairs: Amy Bilton, aeb@nbkllaw.comGary Patureau, Gary@Lasie.org
    • Highlights: The last several months have been very busy for the Evidence Based Medicine Committee.  CMS reached out to the Evidence Based Medicine Committee with a list of questions on issues such as professional administration, thresholds for imposed weaning ongoing opioid prescription in the face of negative urinary drug screens and overall questions surrounding the litigation process for workers' compensation claims.   The Committee was also asked for NAMSAP’s recommendations concerning how to adjust CMS’ current pricing methodology for opioids in the WCMSA.  The EBM Committee reached out to a variety of experts in this area, including pharmacists, physicians, epidemiologists and its broad based membership to furnish CMS with comprehensive, well-reasoned responses.  The EBM committee completed NAMSAP’s recommendation letter and obtained NAMSAP Board approval. The letter has now been forwarded to MSP program operations for its review.   We are eager and excited to receive a response from CMS as concerns the current pricing methodology for opioids in the WCMSA.  Any members who are interested in getting involved in the committee can participate in our monthly calls, which are held on the third Monday of every month at 3:00 p.m. Eastern time.  
  • Liability MSP Advisory Committee
    • Co-Chairs: William Delaney, wad@nbkllaw.comThomas Stanley, tomstanley@cox.net
    • Highlights: The committee continues working with CMS relative to "best practices" guidelines.
  • Membership Committee
    • Co-Chairs: Michelle Allan, mallan@grsm.comEmily Grocoff, egrocoff@medivest.com
    • Highlights: The committee is reaching out to conference attendees to encourage continued support and participation in NAMSAP.  The committee will be working with the NAMSAP staff as membership renewals begin in November. 
  • MSCC Committee
  • Policy & Legislative Committee
    • Co-Charis: Dan Anders, daniel.anders@towermsa.com Annie Davidson, annie.davidson@examworks-cs.com
    • Highlights: The committee recommended, and the Board approved, an endorsement letter for the Provide Accurate Information Directly (PAID) Act (HR 5881).  Presently, the bill, which would require CMS to share information on a claimant’s enrollment in a Medicare Advantage or Part D Plan or in a Medicaid program, remains pending in Congress.   The committee is also working with the Board to better escalate policy matters to CMS management, most recently highlighting concerns to CMS regarding the expanded inclusion of Lyrica and Urine Drug Screens in MSAs.
  • Webinar Committee
 

 

National Alliance of Medicare Set-Aside Professionals
620 Florida St., Suite 210 | Baton Rouge, LA 70801

P: 225-454-6164 | F: 225-344-1132
www.namsap.org | info@namsap.org

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