I was recently asked about what to do in terms of making sure conditional payment issues are addressed. For Medicare beneficiaries, you should take the following steps in general to determine/resolve conditional payment issues:
Contact Coordination Of Benefits Contractor (“COBC”) to report via telephone
Report: Name, HICN, Gender, DOB, Address and Phone Number, Date of injury/accident, description of injury, type of claim, insurer/wc carrier info, attorney name, law firm name along with address as well as phone number
By Telephone - COBC Call Center: 1-800-999-1118
Hours of Operation: Monday –Friday 8am-8pm (EST)
Within one week, send copy of proof of rep to MSPRC in OK (cover sheet on MSPRC site)
Once case is established through COBC, you get Rights and Responsibilities (“RAR”) Letter from MSPRC
Within 65 days of the RAR letter, a Conditional Payment Letter (“CPL”) is generated
Upon receipt of CPL, challenge for unrelated care
Once settlement is reached, submit to MSPRC:
Settlement Amount
Date
Attorney’s Fees and Cost
MSPRC issues demand letter
Appeal, Request a Waiver or Pay. If not paid, interest accrues and referred to Treasury for recovery action (42 U.S.C. §1395y (b)(2)(B)(i)(ii)(iii))
Another question I am frequently asked is how long does Medicare have to pursue conditional payment recovery? There is some question on the statute of limitations for CMS in recovering conditional payments. Although in dicta, the statute of limitations issue was addressed most recently in the US v. Stricker decision out of Alabama. The Stricker case stemmed from a three hundred million dollar settlement of an environmental mass tort case. The United States government filed suit against the plaintiff personal injury law firms that handled the case along with the corporate defendants and insurers that were parties to the settlement. In the lawsuit, the government argued that the parties failed to investigate whether the settlement recipients were Medicare beneficiaries requiring reimbursement of Medicare conditional payments. The government sought reimbursement of all of the Medicare conditional payments along with double damages against the corporate defendants under the Medicare Secondary Payer Act.
The personal injury attorney defendants and the “corporate” defendants (the companies and insurers who were party to the settlement) argued that a three year statute of limitations applied and the government argued that a six year statute of limitations applied. The MSP is silent as to a statute of limitations and both the government and the defendants agreed that the applicable statute came from the Federal Claims Collection Act (“FCCA”). In Stricker, the court explained the controversy under the FCCA as follows “[s]ubsection (a) of the FCAA provides that “every action for money damages brought by the United States . . . which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action first accrues . . . .” 28 U.S.C. § 2415(a) (emphasis added). Subsection (b) states that “every action for money damages brought by the United States . . . which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues . . . .” 28 U.S.C. § 2415(b) (emphasis added). The issue in the present case then becomes whether the Government’s MSPA action is founded upon contract or tort.” Interestingly, while the Stricker didn’t decide which SOL applied since the government claims were time barred either way, the court did engage in an analysis for both the corporate defendants and attorney defendants. The court argued that it was more likely the applicable statute for the corporate defendants would be a 3 year period since there was no contract express or implied as to the corporate defendants, therefore recovery would be based in tort. However, as for the attorney defendants the court found that a 6 year period would apply because of the contract of representation between the attorney and plaintiff. The court stated that there was “an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them.”
The bottom line is that the government has quite a bit of time to pursue conditional payment recovery and plaintiff counsel has personal liability under the MSP for failure to pay Medicare (see US v. Harris).