On Tuesday, January 14th, the Centers for Medicare & Medicaid Services (CMS) hosted a Town Hall to discuss common Commercial Repayment Center (CRC) Non-Group Health Plan (NGHP) Ongoing Responsibility for Medical (ORM) recovery topics.
On the main portion of the call, the following was discussed by John Albert and Nicole Griffin on behalf of CMS (note that CMS stated that the Webinar Presentation will be available on CMS.gov in the next few weeks):
- Overview of Conditional Payment Letters (CPLs) vs. Conditional Payment Notices (CPNs). CPLs are not demands for repayment and will only turn into a Demand upon request or if a Total Payment Obligation to Claimant (TPOC) is reported. CPNs will issue where ORM is reported and will turn into a Demand within 30 days if not disputed.
- Optional Pre-CPN worksheet is available to Responsible Reporting Entities (RREs) that would like to close out outstanding debts. CMS stated that this process was available for claims that the RRE account manager does not want to dispute. Requests for the Pre-CPN worksheet can be made through email@example.com. RREs must provide their TIN & RRE IDs at the time of request.
- An overview of the Commercial Repayment Center (CRC) vs. the Benefits Coordination & Recovery Center (BCRC) and the different debts that they handle. The CRC handles ORM recoveries in workers’ compensation and no-fault claims. The BCRC spearheads TPOC recoveries and Final Demands.
- A New Process for an NGHP Open Debt Report (MSPRP). Only MSPRP Account Managers have access to this report. It will display all open debts at the time of report, as the CRC re-generates its debt report each night. The NGHP Open Debt Report includes case details, demand details, and status of debt
During the Q&A, of note, CMS was questioned about their interpretation on the MSP Statute of Limitations (SOL) where a primary plan disputes a conditional payment recovery as being SOL time barred. CMS stated that their interpretation was that the three (3) year SOL only applies to legal actions by the U.S./CMS, and not to the administrative recovery process.
CMS stated that they based this interpretation on their interpretation of the MSP SOL located at 42 USC §y(b)(2)(B)(iii) which states: “An action may not be brought by the United States under this clause with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice a settlement, judgment, award or other payment made pursuant to paragraph (8) relating to such payment owed.”
Commentary: This interpretation in our opinion is not accurate. First, the intent behind the Strengthening Medicare and Repaying Taxpayers (SMART) Act which enacted this SOL was intended to bar CMS from recovering conditional payments where notice had been provided via MMSEA Section 111 reporting to Medicare 3 years after the notice date, regardless of whether CMS attempts to seek recovery via their administrative process or through litigation. Secondarily, historically the BCRC and CRC have accepted that they are time barred in recovering conditional payments where the recovery is attempted 3 years after notice of the closure of the claim/TPOC has been reported. Therefore, this interpretation is not congruent both with the legislative intent of the SMART Act as well as CMS’ recovery contractors recovery practices. Despite this comment from CMS, we recommend that primary plans still dispute MSP SOL time barred recoveries in the administrative process. For questions, please contact us.