42 CFR 411.37 (Medicare)
This is Medicare’s reduction or procurement formula. It reduces a CPL by the attorney’s fees and costs to get to the Demand amount.
42 USC 1395y(b)(2) (Medicare)
42 USC 1395y(b)(2) is the United States statute dedicated to Medicare reimbursement. The act is known as the Medicare Secondary Payer Act (MSP).
Administrative Law Judge (Medicare)
In a Medicare context, Administrative Law Judges (“ALJs”), decide Level 3 appeals for Medicare liens. Their process may involve a telephone hearing to be handled by MASSIVE. The ALJ hearing is generally not scheduled until 10-14 months after a Level 2 appeal is decided.
Medicare allows four administrative appeals to its lien after a Demand is issued: Level 1 – Appeal to BCRC; Level 2 – Appeal to Maximus Federal Services (an “independent” contractor whose sole task is Medicare appeals); Level 3 – Appeal to an Administrative Law Judge; Level 4 – Appeal to the Medicare Appeals Council. Often considered a fifth level of appeal, you may file a case in Federal Court where the lien is given a de novo review as if it is being proven for the first time.
Auth or Authorization
Can be obtained in a variety of ways including Proof of Representation form (“POR”), Consent to Release form (“CTR”), a HIPAA form, or for non-Medicare cases the MASSIVE Authorization Form. Medicare’s preferred method for authorization is where you attach your fee agreement with the client.
Benefits Coordination & Recovery Contractor. This is the main organization with whom we communicate to resolve Medicare liens. It has replaced the former MSPRC and is our main contact for Medicare lien resolution.
Centers for Medicare & Medicaid Services. CMS has 10 regional offices throughout the US and one national office in Baltimore. CMS technically oversees the BCRC; however, it is government run where the BCRC is run by a contractor. CMS is the MASSIVE source for negotiation processes and reviews all Medicare Set-Asides.
Consent to Release or CTR (Medicare)
This is Medicare’s “one-way street” that only allows Medicare to send you information, but not allowing you to send to Medicare. At MASSIVE, we prefer to use your fee agreement / retainer signed by the plaintiff in lieu of both the CTR and Proof of Representation (POR).
Conditional Payment Letter (CPL)
Conditional Payment Letter. This is Medicare’s lien and itemization.
Conditional Payment Notice (CPN)
Conditional Payment Notice. This is a “final” and locked-in CPL used where Medicare has learned the case settled, but is missing some settlement information. It has a 30 day time limit for response. Generally if we receive a CPN it is because the defense or insurance carrier has notified Medicare of a settlement.
A dispute is a written document used to reduce liens. Medicare officially titles these documents as disputes when they are used pre-settlement. Other organizations do not have official titles, but generally understand when we title a document as a dispute.
Employee Retirement Income Security Act. ERISA is an employee benefits law passed by Congress in 1974. ERISA applies to private employer plans, both self-insured and fully-insured. ERISA does not always apply to all plans that are provided by an employer. You must look at the plan language to determine coverage and lien resolution rules or limitations.
International Statistical Classification of Disease, 9th Edition. These are the favored billing codes used by healthcare providers today. Most lien holders use ICD-9 codes to determine if payments are related to a lawsuit.
International Statistical Classification of Diseases, 10th Revision. ICD-10 is a huge update to ICD-9 that will differentiate between diseases and injuries. Unlike ICD-9 it can look at differences between left and right body parts. As of October 2015, Medicare will utilize ICD-10; however, for no fewer than 3 years we will see ICD-9 and ICD-10 codes listed on CPLs.
JAG MCRU (Military Health)
JAG units are our contacts for TriCare liens. Each TriCare lien is handled by a different JAG unit (generally at the military base where the plaintiff was last stationed).
Letter of Intent to Refer (Medicare)
Medicare’s Letter of Intent to Refer Debt to Treasury is a notice used where the Medicare lien has not been paid within the first 6 months (sometimes longer) of being due. It can often, but not always, be tolled or delayed by certain actions we take at MASSIVE.
Liability File (Medicare)
Liability Files for Medicare are those where a lump-sum recovery is obtained. This also includes lump-sum recoveries from No-Fault insurance carriers, but not ongoing payments or direct payments to providers from the automobile insurance company.
Live Data Portal
MASSIVE’s proprietary, cloud-based software system. As a MASSIVE customer you have on-demand access to your lien information through our MASSIVE Live Data Portal.
The basic premise of the Made Whole Doctrine is that an insurer is not entitled to subrogate unless the insured (plaintiff) has been "made whole" from the recovery/settlement. The definition of being made whole is a matter of academic debate; however, it could be considered being put in a financial position similar to that they were in before the injury.
Maximus Federal Services (Medicare)
Maximus Federal Services decides level 2 appeals for Medicare liens. Their process is similar to an appeal to the BCRC, but they sometimes request additional information. Maximus’s time delay for response is always changing, and, at worse can be 6-10 months.
Medicaid is a federally funded, state-run health insurance program for those with low income. It is almost entirely need-based. All 50 states have different Medicaid programs and different lien/recovery rules.
Medicare is a federally funded, federally run health insurance program for those with long-term disabilities, kidney dysfunction, end stage renal disease, and for those older than 65 years of age.
Medicare Demand or Final Demand
This is Medicare’s Final Lien. Sometimes it is called a Final Demand. It is a payable lien amount requiring payment within 60 days and has been reduced for fees and costs. We understand that you might use the term “Demand” to mean your settlement demand to the defense.
Medicare Part A
Medicare Part A is the most basic Medicare available. It is also free to those who qualify for Medicare. It covers (generally): Hospital care, skilled nursing facility care, nursing home care beyond simple custodial care, hospice, and home health services. While Medicare is a national program, coverage can differ by location.
Medicare Part B
Medicare Part B covers a bit more than Part A. It requires a premium be paid monthly. Medicare Part B covers both medically necessary services and preventative services, such as: clinical research, ambulance services, durable medical equipment, both inpatient and outpatient mental health services, second opinions prior to surgery, and very few prescription drugs (most of which can be covered by Medicare Part D).
Medicare Part C
Medicare Part C plans are generally known as Medicare Advantage Plans. These are private insurance plans subsidized by an individual’s Medicare dollars and used to replace Medicare Parts A and B. They are more inclusive in their coverage and better coverage. Medicare Advantage Plan beneficiaries generally will retain some Medicare Part A and B coverage requiring MASSIVE to resolve liens for both Medicare and the private plan providing Part C coverage.
Medicare Part D
Medicare Part D plans were created to cover prescription drug costs. Each drug plan is different and covers its own list of drugs. Each plan is administered by a private health insurance company for a monthly premium averaging $15-$30. The subrogation rights of Part D plans remain very much unclear.
Medicare Procurement Formula
Medicare’s federally mandated reduction or procurement formula is found at 42 CFR 411.37. It reduces a CPL by the attorney’s fees and costs to determine the Demand amount.
Medicare Set-Aside. An MSA is created to protect Medicare’s interest where future medical payments are part of a settlement. The MSA will include only care that is both probable to occur in the future and care which would be paid for by Medicare Part A or B. The need for MSAs remains unclear for liability settlements and an individual review should be conducted for each case.
Medicare Secondary Payer Recovery Contractor. This was the main organization with whom we communicated to resolve Medicare liens until February 1, 2014. It has been replaced by the BCRC which performs the same tasks formerly performed by the MSPRC.
The Medicare Negotiation process is used where Medicare will recover more than the plaintiff will take home. Generally our goal is to split a settlement (after attorney’s fees and costs are taken) slightly better than 50/50. E.g.: $100,000 settlement with $10,000 in costs and a $30,000 attorney fee. There is $60,000 left. We turn to the Negotiation process if Medicare’s Demand is greater than $30,000 and no appeal is possible.
No-Fault Automobile Insurance
No-Fault insurance can mean a multitude of different automobile insurance types, including Med-Pay and PIP.
No-Fault Medicare File
No-Fault to Medicare is more focused. Medicare opens No-Fault files for Ongoing Responsibility for Medicals (ORM) which is essentially voluntarily paid by a No-Fault Carrier. If the No-Fault carrier denies coverage and a lawsuit is necessary you will recover a lump sum, which Medicare considers to be a different type of file (Liability).
Private Health Insurance
Private Health insurance may or may not be entitled to a “lien.” Their rights depend mostly on plan language. When we refer to private health insurance we can be referring to both an ERISA and a non-ERISA plan. A lien relies on the plan language and not ERISA status. ERISA status simply fills the holes of the plan with Federal and not State law.
Proof of Representation or POR (Medicare)
This is Medicare’s “two-way street” which allows communication both to and from Medicare. Rather than using Medicare’s model POR language they and we suggest sending your fee agreement with the client.
Rights and Responsibilities (RAR) (Medicare)
Rights and Responsibilities Letter. This letter signifies the Medicare file is open and a CPL is due within 65 days.
Medicare Red Grid
Red Grid Letter from CMS. This letter signifies the Medicare file may be open. Unfortunately, Medicare often fails to properly transfer the file between the COB&R and BCRC after this letter is sent.
Summary Plan Description (ERISA)
Summary Plan Descriptions (SPDs) state the rules of a health insurance plan. If the SPD does not clearly state reimbursement (lien) rules, we may have opportunities to defeat it.
TriCare (Military Health)
TriCare is military health insurance for active duty soldiers and veterans with long-term experience. TriCare has strong rights for reimbursements; however, it specifically cannot take from 1st Party or No-Fault settlements. The law states it can recover only from payment from the tortfeasor (defendant) or his insurance.