What’s up in D.C.? MSP reform efforts – status update

By Mark Popolizio, J.D., Kate Riordan, J.D.

August 20, 2020 / 8 min read

With the current Congressional session (the 116^th United States Congress) concluding on January 3, 2021, attention is turning to the fate of two Medicare Secondary Payer (MSP) reform efforts currently pending on Capitol Hill: The Provide Accurate Information Directly (PAID Act) and the Coordination of Medicare Payments and Workers’ Compensation Act (COMP Act). As outlined below, these bills seek to change various aspects of MSP compliance and certain CMS practices.

The authors provide the following overview of both pending bills and their current status as of the publication date of this article as follows:

harold-mendoza-6xafY_AE1LM-unsplash

PAID Act – (H.R. 1375/S. 1989)

The PAID Act was introduced in the U.S. House of Representatives on February 26, 2019, as H.R. 1375 by Representatives Ron Kind (D-WI) and Gus Bilirakis (R-FL). On June 26, 2019, an identical version of the bill was introduced in the Senate as Senate Bill 1989 by Senators Tim Scott (R-SC) and Benjamin Cardin (D-MD).

When this article was published, the PAID Act had seventeen (17) House co-sponsors[1] and six Senate co-sponsors.[2] H.R. 1375 is currently pending before the full Committee on Energy and Commerce and the Committee on Ways and Means’ Subcommittee on Health. Senate Bill 1989 has been referred to the Senate Committee on Finance. Neither bill has yet to receive a cost estimate from the Congressional Budget Office (CBO). This cost estimate is commonly referred to as a “CBO score” and is considered an important step in progressing proposed legislation on Capitol Hill. Generally, it provides an estimate on the potential budgetary impact of a proposed bill.[3]

In general, the PAID Act proposes that CMS expand its Section 111 Query Process to also identify whether an individual is currently, or during the preceding three-year (3) period, was enrolled in Medicare Part C (Medicare Advantage) and/or Medicare Part D (Prescription Drugs) plan, and provide the name and address of each plan identified during the preceding three year (3) period.[4]

From a practical claims perspective, the PAID Act aims to address current challenges claims payers face in determining Part C and Part D enrollment concerning identifying potential recovery claims. This problem is particularly pressing in the Part C context. Over the past several years, some Medicare Advantage Plans have begun to aggressively pursue recovery claims, including obtaining several favorable court rulings finding that Part C plans can sue for “double damages” under the MSP’s private cause of action provision. While Part D recovery efforts, by comparison, remain in a nascent state, it is noted that CMS in October 2018 amended its Part D manual to encourage Part D providers to more aggressively identify and pursue secondary payer reimbursement. In recent articles, we’ve covered Medicare Advantage Recovery Rights and Medicare Part D recovery issues.

COMP Act - (H.R. 4161)

The Coordination of Medicare Payments and Workers’ Compensation Act, or COMP Act, was introduced in the U.S. House of Representatives on August 2, 2019, as H.R. 4161 by Representatives Mike Thomson (D-CA) and George Holding (R-NC). To date, the bill has not been introduced in the Senate. When this article was published, the COMP Act had three (3) House co-sponsors.[5] The bill is noted to have been referred to the Committee on Energy and Commerce and the Committee on Ways and Means’ Subcommittees on Health.[6] To date, this bill has not received a score from the CBO.

Overall, the COMP Act seeks to reform CMS’s Workers’ Compensation Medicare Set-Aside (WCMSA) process by making certain additions and amendments to 42 U.S.C. 1395y(b)(2)(A)(ii). In general, the bill seeks to establish a statutory framework for various aspects of the WCMSA process, including codifying certain aspects of allocating, and approving and satisfying WCMSA obligations. Currently, WCMSA review policies are governed by CMS’ WCMSA Reference guide, and CMS has an established voluntary and optional WCMSA review and approval process. Unlike prior versions of this bill, the COMP Act does not contain any monetary thresholds below which MSAs or conditional payment reimbursement would be exempt.

Key proposals contained in the COMP Act include:

Providing specific legal definitions to key concepts related to the WCMSA process, including the term Medicare set-aside and compromise settlement;
Outlining circumstances where a WCMSA would satisfy obligations under the Medicare Secondary Payer (MSP) statute;
Allowing for proportional adjustment of the total WCMSA amount regarding compromise settlement agreements related to denied, disputed or contested claims;
An optional WCMSA approval process requiring CMS to provide notice of approval or disapproval within 60 days, and allowing parties to challenge CMS determinations via administrative appeal;
An option for direct deposit of the WCMSA fund to Medicare upon the agreement of both parties; and
Greater recognition of state and jurisdictional workers’ compensation laws.

What happens next?

It is unknown if either pending bill will gain traction as the current Congressional session winds down. Per the standard legislative process, each bill would need to be voted on from each referred Committee and then placed before the entire House and Senate for votes. As part of this process, subcommittees often hold “mark-up sessions” where revisions and other edits are made, with these changes then needing to be approved by the full committee.

From another angle, it is also possible that either bill could get “tacked on” to a different piece of legislation that moves through the legislative process. In that scenario, the bill would essentially be tied to the main legislative proposal to which it was attached (either in its proposed state or some modified form). It is unknown at this point how realistic this potential option may be for either bill.

If neither bill is passed into law before the end of the current Congressional session, then each bill would need to be re-filed in the next Congressional session starting in January 2021.

The authors will continue to closely monitor each bill over the next few months as the current Congressional session heads to a close and provide updates as warranted.

[1] The Democratic House co-sponsors, listed alphabetically by last name, are reported as: Reps. Joyce Beatty (D-OH); Anthony Brindisi (D-NY); Jared Golden (D-ME); Ron Kind (D-WI); Chellie Pingree (D-ME); Bradley Scott Schneider (D-IL); and Peter Welch (D-VT- At Large).

The Republican House co-sponsors, listed alphabetically by last name, are listed as: Reps. Gus Bilirakis (R-FL); Ron Estes (R-KS); Greg Gianforte (R-MT- At Large); Bob Gibbs (R-OH); Glenn Grothman (R-WI); George Holding (R-NC); Bill Johnson (R-OH); Blaine Luetkemeyer (R-MO); David McKinley(R-WV);Adrian Smith (R-NE); and Bryan Steil (R-WI);

Source: https://www.congress.gov/bill/116th-congress/house-bill/1375/cosponsors?r=66&s=1&searchResultViewType=expanded

[2] The Democratic Senate co-sponsors, listed alphabetically by last name, are reported as: Sens. Benjamin Cardin (D-MD) and Thomas Carper (D-DE). The Republican Senate co-sponsors listed alphabetically by last name are reported as: Sens. Bill Cassidy (R-LA); Rob Portman (R-OH); Rick Scott (R-FL); Tim Scott (R-SC); and Roger Wicker (R-MS).

Source: https://www.congress.gov/bill/116th-congress/senate-bill/1989/cosponsors?searchResultViewType=expanded

[3] The Congressional Budget Office (CBO) is an independent agency charged with reviewing legislation from a fiscal perspective and “scoring” the proposed bill. Outside of appropriation bills, the CBO is tasked by law to provide a cost estimate for every bill approved by either the full House or Senate committee. The CBO score is often highly regarded as a tool that can help to move certain bills as part of the legislative process. The relevant committee or Congressional leadership may also request the CBO to produce a formal estimate of a bill prior to full House or Senate approval. Individual Congressional members may ask the CBO to for informal scoring of specific legislation as well as which can help prioritize the bill.

The CBO on its website, https://www.cbo.gov/about/products/ce-faq, describes this process, in part, as follows:

Why does CBO prepare cost estimates?

The Congressional Budget and Impoundment Control Act of 1974, which established the agency, directs CBO to estimate the costs of bills and resolutions approved by Congressional committees other than the House and Senate Appropriations Committees. Such cost estimates are intended to ensure that when the House and Senate consider legislation recommended by committees, Members have information about the budgetary consequences of enacting that legislation that can be used to enforce budgetary rules or targets.

What information is included in a formal estimate?

Cost estimates show how federal outlays and revenues would change if legislation was enacted and fully implemented as proposed—compared with what future spending and revenues would be under current law. Each estimate also includes a statement about the costs of any new federal mandates that the legislation would impose on state, local, or tribal governments or on the private sector. For more details on the format of formal cost estimates, see CBO's Cost Estimates Explained.

[4] Provide Accurate Information Directly Act, H.R. 1375 s.(2)(II), 116^th Cong. (2019); Provide Accurate Information Directly Act, S.B. 1989 s.(2)(II), 116^th Cong. (2019).[5]

[5] The Democratic House co-sponsors are reported as: Reps. Terri Sewell (D-AL) and Mike Thompson (D-CA). The Republican House co-sponsors are listed as: Reps. George Holding (R-NC) and Kenny Marchant (R-TX).

Source: https://www.congress.gov/bill/116th-congress/house-bill/4161/cosponsors?q={%22search%22:[%22hr4161%22]}&r=1&s=1&searchResultViewType=expanded

[6] Source: https://www.congress.gov/bill/116th-congress/house-bill/4161/actions?q=%7B%22search%22%3A%5B%22hr4161%22%5D%7D&r=1&s=3

What’s up in D.C.? Medicare Secondary Payer reform efforts – status update

PAID Act – (H.R. 1375/S. 1989)

COMP Act - (H.R. 4161)

What happens next?

Why does CBO prepare cost estimates?

What information is included in a formal estimate?