6 EWC Magazine
WORKERS’ COMPENSATION
that CMS plans on issuing proposed rules regarding options
to address future medicals in relation to liability, workers’
compensation, and no-fault cases. Per the OIRA,
a Notice of Proposed Rulemaking (NPRM) is targeted for
release by September 2019.
In the bigger picture, this announcement will likely generate
interest in liability circles where questions regarding future
medical obligations and LMSAs have been a vexing issue for
years. On this front, CMS issued proposed regulations for
liability cases back in 2012 but then withdrew them in 2014.
OIRA’s notice indicates that CMS is prepared, in some
manner yet to be determined, to explore options for parties
to address future medical obligations in relation to liability,
workers’ compensation, and no-fault settlements. The
exact nature and extent of what CMS is contemplating is
unknown at this time but will be unveiled when the
NPRM is ultimately released.
MEDICARE ADVANTAGE PLANS’ MARCH
FOR DOUBLE DAMAGES CONTINUES
Over the past several years, Medicare Advantage Plans (MAPs)
have been on a judicial quest to establish private cause of
action rights, which would allow them to sue claims payers
(and potentially other parties) for “double damages” to the
extent their recovery claims are not properly addressed. So
far, the United States Third and Eleventh Circuit Courts of
Appeals
1
have ruled that MAPs enjoy double damages rights.
In addition, United States District Courts in Louisiana,
Tennessee, Texas, and Virginia have also ruled in favor of
MAPs on this issue.
2
In 2018, the United States District Court for Connecticut
and a second Texas District Court joined the growing
jurisdictions finding that MAPs enjoy double damages rights,
while a district court in Illinois gave a strong signal that it too
viewed MAPs as possessing these rights.
3
Entering 2019,
we will need to keep a close eye on pending litigation in other
states to see if additional courts will continue this trend.
WILL PRESCRIPTION DRUGS (MEDICARE
PART D) BE THE NEXT COMPLIANCE FRONTIER?
In October 2018, CMS amended its Medicare Prescription
Drug Benefit Manual (Part D Manual) to add, in part,
stronger language regarding Medicare Part D sponsors’
secondary payer rights and recovery.
4
As part of these changes, CMS is directing Part D
sponsors to ensure processes are in place to effectuate proper
secondary payer recovery efforts. Further, the new updates
preclude Part D sponsors from paying for a prescription that
should be paid under the Medicare Secondary Payer (MSP)
provisions or submitting these claims to CMS for payment.
If acted upon, these updates could lead Part D plans to
assert more aggressively their secondary payer status, either
through coverage denial or increased Part D recovery claims
regarding workers’ compensation, liability, and other non-
group health claims. In this regard, it is noted that Part D
recovery efforts have been changing over the past year or so.
Initially, Part D sponsors were simply sending letters to claims
payers asking them to confirm primary payer status, injury
date, claimed injuries, and other claim-related information.
However, an increasing number of sponsors are now sending
letters asserting recovery and providing a breakdown of
alleged payments for reimbursement.
Whether these CMS policy updates will propel more
aggressive practices in collection or denying coverage is
something all claims payers should closely watch going
forward. As the recovery spotlight shifts to Part D recovery,
claims payers should have processes in place to address Part D
recovery notices to assess what responsibility, if any, may be
owed and whether grounds exist to challenge said claims.
STAY ON TRACK DESPITE
THE TWISTS AND TURNS
Keeping pace with all these changes can seem daunting.
But being aware of the issues and knowing how to respond
to them affect your efficiency, costs, and bottom line. J
1
In re Avandia, 685 F.3d 353 (3rd Cir. 2012) and Humana v. Western Heritage,
832 F.3d 1229 (11th Cir. 2016).
2
Collins v. Wellcare Healthcare Plans, Inc., 73 F.Supp.3d 653 (E.D. La. 2014),
Humana Ins. Co. v. Farmers Tex. Cnty. Mut. Ins. Co., 95 F.Supp.3d 983
(W.D. Tex. 2014), Cariten Health Plan, Inc. v. Mid-Century Ins. Co., No.:
2015 WL 5449221(E.D. Tenn. 2015), and Humana Ins. Co. v. Paris Blank
LLP, 187 F.Supp.3d 676 (E.D. Va. 2016).
3
Aetna v. Guerrera, 300 F.Supp.3d 367 (D. Conn. March 13, 2018), Humana
v. Shrader, 584 B.R. 658 (S.D. Tex. March 16, 2018); and MAO-MSO
Recovery II, LLC v. State Farm, 2018 WL 340021 (C.D. Ill. January 9, 2018).
4
Medicare Part D was added to the Medicare program in 2003, with benefits
commencing in 2006. Part D is a voluntary outpatient prescription drug
benefit plan available to all Medicare beneficiaries. Beneficiaries enrolled in
traditional Medicare can purchase what is known as a “stand-alone” Part D
plan, while Medicare Advantage Plans (MAP) beneficiaries may purchase a
plan as part of their coverage under their particular MAP program. Similar
to Part C (Medicare Advantage) MAPs, Part D benefits are provided by
private companies (referred to as sponsors), and the scope of coverage varies
from plan to plan. In 2018, more than 43 million Medicare beneficiaries
were enrolled in a Part D plan. Of this total, 58% of traditional Medicare
beneficiaries were enrolled in a stand-alone prescription drug plan, while
roughly 42% were enrolled in a Medicare Advantage Drug plan. “See The
Henry J. Kaiser Foundation, An Overview of the Medicare Part D Prescription
Drug Benefit, October 2018.” Currently, United Health, Humana, and
CVS Health account for 55% of all Part D enrollees. “The Henry J. Kaiser
Foundation, Medicare Part D in 2018: The Latest on Enrollment, Premiums,
and Cost Sharing, Data Brief, May 2018.”
Claims payers should have processes
in place to address Part D recovery
notices to assess what responsibility
may be owed and whether grounds
exist to challenge said claims.
