Friday, September 6, 2013

MSP Portal is live

The Medicare Secondary Payer Portal has been set up by CMS to comply with Congress' directive in the January 2013 SMART Act to establish an online presence using which the parties to a lawsuit may obtain a final and binding reimbursement amount just before settling a case, and to provide a mechanism for contesting items that the Recovery Contractor has improperly included in the listing.

Before the SMART Act, CMS would not provide a final reimbursement demand figure until after the case had been settled and the plaintiff's attorney had the settlement proceeds in hand.

CMS is expected to release proposed regulations relating to the Portal by October 2013. In the meantime, there is a User Manual which provides detailed information about its use.

The front page for the Portal, which is to be used for all reimbursement issues relating to liability and no-fault auto insurance claims, is Direct links to key items are
There are two ways to access the Portal. CMS requires the Medicare beneficiary to sign a “Proof of Representation” form to allow his attorney, his guardian, his agent under a Power of Attorney, etc. to obtain information on his behalf. To use the portal, he or she sets up a “representative account.”

For a defense attorney or an insurance claims representative, a “Consent to Release” form must be signed, and a “corporate account” is used. For those defending a litigated claim, it is best to have this release form signed early on in the course of litigation.

The Consent to Release form will be reviewed by CMS to ensure that each of the requirements is met. CMS says that it will take 45 days to review and verify the consent form. Once it has been reviewed the Consent is regarded as “verified”.

The portal can be used to:
  • Obtain updated conditional payment figures
  • Submit a dispute on a particular item if it is unrelated to the accident at issue in the lawsuit
  • Submit settlement information
  • Obtain a final conditional payment amount from CMS
Some of these items, however, can be done only by the attorney representing the plaintiff.

Once the Consent to Release form has been verified, the authorized person will be included on any of the mailings that are sent and will be permitted to review the conditional payment letter and other documentation on the portal. The total conditional payment amount will be released, but CMS will not provide the conditional payments listing (providing the details of each medical service). That information will only be provided to the plaintiff’s attorney or other representative.

The portal is also used by the plaintiff’s attorney to submit information regarding the settlement and to thereafter obtain a final conditional payment figure and generate the official reimbursement demand letter. The instructions advise the plaintiff’s attorney to submit this information as soon as a settlement agreement is finalized, even though the money has not yet been paid. The attorney is expected to provide the total amount to be paid in the settlement, the expenses to be charged, and the calculated attorney fee. For those cases for which the fixed percentage option is available, the request is also submitted at that time. (Recall that the fixed percentage option is available only for certain cases that are settled for less than $5,000. Under that program, the plaintiff can request that the reimbursement amount be limited to 25% of the settlement proceeds.)

CMS says that it will review the settlement information within 20 days and then submit its  final reimbursement demand. (If the fixed payment option is requested, the period is 30 days.)

Since the Portal is designed for the settlement information to be sent by the plaintiff's attorney, the defense attorney or claims professional should have an agreement that the information will be shared as soon as it is obtained. If there are disputes as to certain listed items, a means of addressing those disputes should be worked out between the parties.

We can expect that the proposed regulations, when issued, will recognize a challenge based on the position that a particular listed item is not related to the subject motor vehicle accident, but will not address the separate issue of whether the reimbursement claim is timely.

It should be noted that the system is set up so that the reimbursement figure is lower than the total amount of Medicare benefits that have been paid. The reduction is intended to account for the costs of recovery, including both out-of-pocket expenses and the plaintiff attorney's fee. Most plaintiffs' attorneys will probably expect full payment of the amounts that have been paid by Medicare, as reflected in the Payment Summary, before the reduction. Some may resist sharing the final reimbursement figure with the defense. Of course, all of those issues are subject to negotiation.

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