Sunday, May 12, 2013

Newest user guide for MMSEA reporting

Just a few weeks after releasing version 3.5, CMS has now issued version 3.6 of the NGHP (non-group health plan) User Guide (dated May 6, 2013) for MMSEA reporting by liability and no-fault insurers. Reportedly there were some technical errors in version 3.5.

Sunday, May 5, 2013

Insurance Claims and the Affordable Care Act

What will the ACA mean for secondary payer status and for reimbursement claims against no-fault carriers and liability insurers?

Somewhat surprisingly, the answer is that there will not be much change, either in the relationships between primary and secondary payers or in the manner that repayments and reimbursements are to be made. The new laws will extend or modify current structures, rather than putting new ones in place.

The ACA attempts to accomplish its goal of extending insurance coverage to most Americans by two distinct mechanisms:
  • a significant extension of eligibility under Medicaid, to bring more low-income people into the program, and
  • mandating the purchase of health insurance coverage by those who can afford to do so.
There will still be a large group "in the middle" who will not be eligible for Medicaid, who will not be covered by employer-provided coverage, who will not be financially able to purchase health insurance on their own, and who will either (1) be exempted from the new penalties for failure to buy their own coverage, or (2) determine that it is more cost-effective to pay the penalty and continue without health care coverage.

Medicaid - Without getting into the details, it is sufficient to note that the original provisions of the statute mandating that states expand Medicaid coverage were declared unconstitutional by the Supreme Court's June 2012 decision in National Federation of Independent Business v. Sebelius. Thus, each state is free to accept or decline the expansion. Michigan is considering the governor's recommendation to opt in to the expansion.

How far that expansion will go, how many more individuals and families will be covered by Medicaid, will remain to be seen. But for those citizens, the interplay between Medicaid and other coverage, including no-fault insurance, will continue as it has in the past:

1. The payments will be made and managed by the state, with Federal funds assisting.
2. The reimbursement system will be as provided under state law, not under Federal law.
3. The state will likely continue to use contractors to manage its reimbursement claims.
4. There will be reasonable options for compromise with the state agency or its outside contractor. 
5. There will be a requirement, imposed by the courts, that reimbursement claims be limited based on equitable considerations. (See our very recent discussion of the Ahlborn and Wos cases.)

Medicare - For those who are covered under Medicare, the current Medicare Secondary Payer system, with all of its blemishes and wrinkles, will continue. The ACA did not do much to modify the Medicare laws. It did add a new provision codified at 42 USC 1320a-7k(d) that requires that providers (and others as defined) self-report any "overpayment" that they learn about, including any situation in which CMS has made a payment that should have been made by a primary payer. This imposes a new obligation on providers and other defined "persons," not on primary payers.

Private coverage - For those who will be covered under private insurance, either from current commercial carriers or from newly-created insurers under the exchanges, the system that is in place now will likewise continue:

1. Michigan law allows and in fact encourages health insurers to adopt language to provide for secondary status and for reimbursement from other available coverage.
2. Those provisions are and will continue to be included in just about all policies.
3. For insurance that is provided by employers, the special rules under ERISA governing reimbursement claims will continue to apply.
4. For insurance that is purchased by individuals, reimbursement claims will be governed under state law.

The ACA did not adopt any new provisions governing primary vs. secondary status, or reimbursement by primary payers. Those issues are and will likely remain a matter of contract between the insurer and the insured.

It is certainly possible that Congress could act, at some time in the future, to import something similar to the Medicare Secondary Payer program into the ACA. For political reasons, however, to avoid charges that the Federal government is "taking over the health care system," the ACA is designed to keep the states involved in the system. From a political perspective, it is very unlikely that anything similar to the MSP program will be adopted by Congress for the health care system as a whole any time soon.