Pharmacist Prescription Reviews Save Clients Money!

Recently, Carr Allison teamed with Carlisle Medical in a pharmacy review for a client due to the high cost of a claimant's prescription medication. Carlisle Medical's pharmacist reviewed the claimant's medication regimen and recommended two alternatives. After a meeting with the treating physician, he agreed to change the claimant's medications to exactly what the pharmacist recommended! This change resulted in an annual savings to the client of $5,141.16 and a reduction of $133,670.00 in the recommended Medicare Set-aside amount!

This case is just one example of how Carr Allison and Carlisle Medical work together to help control the cost of prescription medications and save clients money.  Contact us to discuss how we can save you money too! 

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Wisconsin Court Rules That a Hospital Can Enforce a Lien Against Tort Claims Even After Medicare Billing Period Has Expired

Recently in Laska v. General Casualty Company of Wisconsin, 2013 Wisc. App. LEXIS 234 (Wis. Ct. App. 2013), the Wisconsin Court of Appeals reviewed the decision of a circuit court that allowed the defendant, University of Wisconsin Hospital, to assert a lien against the tort claims of its patient, plaintiff J. Conrad Laska, after expiration of the time period within which the hospital could have billed Medicare for treatment. The plaintiff was eligible for Medicare when he was injured in an automobile accident. The plaintiff was treated by the defendant hospital for those injuries. Instead of billing Medicare for its treatment of Mr. Laska, the hospital filed a statutory lien against “any tort claims” and “any settlement or judgment resulting from those claims.” Id. at *P1. Subsequently, the deadline for billing Medicare passed, and the plaintiff sought to have the hospital’s lien removed. The circuit court held that the hospital was not required to withdraw its lien.

On appeal, the plaintiff argued that the circuit court erred in interpreting federal Medicare laws to allow the hospital to enforce a lien after the expiration of the time period within which the hospital could have billed Medicare for treatment. The plaintiff also argued that Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425 (Wis. Ct. App. 1999), bars enforcement of the lien.

As to the interpretation of Medicare laws, the plaintiff argued that a federal Department of Health and Human Services memorandum, published in 2000, prohibits providers from enforcing liens against third parties once the time has elapsed in which to bill Medicare. The 2000 HHS memo attempted to clarify the Medicare Provider Agreement Statute, 42 U.S.C. § 1395cc, which aims to ensure that no Medicare beneficiary or other person is charged for services if a beneficiary is entitled to have Medicare pay for those services. The Wisconsin Court of Appeals held, however, that a person is not “entitled” to Medicare when Medicare is a secondary payer and when the primary payer can be reasonably expected to pay. Therefore, the court reasoned, the 2000 memo misconstrued federal law when it prohibited providers from maintaining liens against tort claims after the Medicare billing deadline when Medicare is a secondary payer so long as the primary payer can be reasonably expected to pay.

In its reasoning, the court relied upon 1995 and 1996 HHS memoranda, which established that a provider may, subject to certain restrictions, bill either Medicare or an insurance settlement—even by lien—as long as it does not pursue payment from both Medicare and the liability settlement. The court noted that these memos do not require that all liens be satisfied prior to the Medicare billing deadline.

As to the 2000 memoranda, the court noted that it was not bound to follow the interpretations of the federal law as set out in the memo given that there was an “obvious disconnect between the language of the Provider Agreement Statute and the 2000 Memorandum’s interpretation of that statute.” Laska at *P46. The court further reasoned that previous court decisions, including Oregon Association of Hospitals v. Bowen, 708 F. Supp. 1135 (D. Or. 1989), and American Hospital Association v. Sullivan, 1990 U.S. Dist. LEXIS 6306 (D.D.C. May 24, 1990), support the view that a person is not “entitled” to Medicare payments under the Provider Agreement Statutes “as long a liability insurer can be reasonably expected to pay.” Laska at *P38. Finally the court notes that the cost-shifting purpose of the Medicare Secondary Payer Act would be defeated given that providers would never pursue claims against non-Medicare insurers unless they could be certain that all claims would settle prior to the Medicare billing deadline.

In Laska, the Wisconsin court also addressed the plaintiff’s argument that another Wisconsin case, Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425 (Wis. Ct. App. 1999), bars enforcement of the lien against the plaintiff’s tort claims. The court noted that the Dorr case was factually distinct from Laska in that it involved an HMO and did not address the Medicare statutes.

CMS Issues Top Submission Errors and Helpful Hints

CMS recently released an updated list of top submission errors and helpful hints.  No significant changes were noted from what CMS has been requiring for some time.  A copy of the document may be downloaded from the following site:  http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/WCMSA-Submission/WCMSA-Submission.html.

CMS Issues Alert Regarding Transition to ICD-10 Codes for Section 111 Reporting

The Centers for Medicare & Medicaid Services (CMS) has published a Technical Alert detailing the transition from ICD-9 codes to ICD-10 codes in diagnosis coding and Section 111 reporting. The entire Alert can be found at http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Mandatory-Insurer-Reporting-For-Non-Group-Health-Plans/Downloads/S111ICD10Alert.pdf.

As noted in our January 3, 2013, newsletter, ICD-10-CM codes are replacing ICD-9-CM codes in Section 111 reporting beginning October 1, 2014. At that time, CMS will begin using the International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM) for diagnosis coding. ICD-10-CM codes tend to be more detailed than ICD-9 codes, and contain 3 to 7 digits (instead of the 3 to 5 digits used with ICD-9-CM).

The Technical Alert published on June 11, 2013, provides further technical details regarding the transition from ICD-9-CM to ICD-10-CM codes, how the claim input files will be revised, and which ICD-10 codes will be considered valid. In general, Responsible Reporting Entities (RREs) can begin testing the changes to Section 111 fields on October 1, 2013, and are encouraged to begin using ICD-10 codes on production files on October 1, 2014. For dates of injury on or after April 1, 2015, valid ICD-10 codes must be used on all "add" or "update" records.

Another revision to the User Guide is forthcoming which details these changes. We will let you know when this newer User Guide is published and becomes available.

Court Affirms That Social Security Number Is A Material Term of Settlement

Recently, in the case In Re Asbestos Products Liability Litigation, 2013 U.S. Dist. LEXIS 76346 (E.D. Pa. May 8, 2013), a husband's estate and the wife negotiated a settlement with the defendants.  Thereafter, the defendants refused to release settlement funds until the spousal plaintiff (who had asserted only a loss of consortium claim) provided her Social Security number (SSN). The defendants claimed that this information was necessary to comply with Section 111 reporting requirements. Plaintiffs responded by filing a motion with the court to enforce the settlement agreement (which did not contemplate the procurement of an SSN). The plaintiffs argued that the SSN was not necessary because the spousal plaintiff's loss of consortium claim did not involve any damages related to medical care. 

The court first noted that Section 111's reporting rules clearly consider a loss of consortium claim potentially reportable. Thus, "it is permissible for a defendant to condition settlement on the production of a plaintiff’s SSN." Id. at *16-17. The court went on to say that, while state law may prevent the recovery of medical expenses from loss of consortium claims, that did not excuse the defendants from their Section 111 reporting requirements.

Because the defendants were obliged in this case to report under Section 111, and a required element to report under Section 111 is the SSN of a plaintiff, the court noted "the provision of this information is a material term of the settlement agreement that was never agreed upon by the parties." Id. at *17-18. Thus, the magistrate’s recommendation was that the settlement agreement was incomplete and unenforceable.

This decision is in line with a growing number of cases supporting a defendant’s ability to obtain a plaintiff’s SSN for purposes of reporting under Section 111.  Although Congress instructed CMS to make the provision of SSNs optional under Section 111, given the unlimited extensions that are available for CMS to actually accomplish that, the issue of SSNs will likely continue to arise in cases for the foreseeable future.