Flagship Services Group Blog

Into the Looking Glass

Nov 20, 2019 5:59:00 PM / by Robert J. Finley

Business organizations face all kinds of risk.  Developing strategic risk management plans as a business practice is becoming more prevalent across industry lines which help the organization define, measure, anticipate, and respond, for example, to foreseeable risks, technological developments, as well as changing laws and regulations.  Some risk is insurable, while other kinds may necessitate capital, cost or other investment such as an organization adding new personnel or contracting with subject matter specialists or consultants.  Some risk is not as perceptible as others, yet still must be handled if it occurs.  Ideally, an effective risk management plan is tailored to the organization and ultimately improves its performance by avoiding, minimizing or mitigating risk.

The Medicare Act and its Secondary Payer laws create the type of complex, progressive risk which seems to compel a more sophisticated strategic planning approach for business.  The legal impetus for strategic MSP risk management can be proximately traced to the Medicare, Medicaid, and SCHIP Extension Act of 2007 which implemented a new, affirmative reporting duty applicable to organizations defined as “Primary Plans”—i.e. “group health plans” and “non-group health plans”—coupled with conceivably onerous civil money penalties taxing Primary Plans which fail to report.  Primary Plans, as well numerous other “Primary Payment Recipients” enumerated in the federal regulations, also must anticipate more traditional MSP risk tied to Medicare conditional payment recovery claims, as well as measure the ever-evolving debate centered on future Medicare covered expenses or set-aside risk.   CMS also continues shaping the MSP risk landscape for Primary Plans with, for example, technical changes in Medicare Beneficiary Identifier reporting, updated User Guide versions, reporting thresholds for non-group health plans, excluded diagnosis codes, and reporting Recovery Agent information.  Plus, the MSP industry still anticipates seismic, transformative rules from CMS with proposed reporting criteria and practices for which penalties would and would not be imposed against non-group health plans, as well as proposed guidance to beneficiaries needed to satisfy MSP obligations regarding their future medical care expenses when receiving non-group health plan settlements, judgments, awards, or payments.  

Primary Plans and Primary Payment Recipients would define, measure, anticipate and respond to different MSP risks; however, for each, the heart of the matter is whether, in whole or in part, to invest in an internal MSP compliance team versus outsourcing to a third party industry specialist.  Imagine a multi-disciplinary, systems-driven response team with specialized knowledge and experience in MSP laws and regulations which could easily pivot about in health care regulations and compliance, regulatory audits, investigations and compliance, health care operations and pharmacy, health care information, privacy and security, long term health care, taxation, information technology, data and privacy, systems and maintenance, corporate governance and management, insurance coverage and regulation, personal injury defense litigation, MSP recovery claims and administrative  review/appeals.  Consultation on MSP risks and consequences with a subject matter expert may begin providing the best answer for an organization looking to answer this key question.    

Flagship Services Group is the premier Medicare and Medicaid compliance services provider to the property & casualty insurance industry. Our focus and expertise have been the Medicare and Medicaid compliance needs of P&C self-insureds, insurance companies, and third-party administrators. We specialize in P&C mandatory reporting, conditional payment resolution, and set aside allocations. Whether auto, liability, no-fault, or work comp claims, we have assembled the expertise, experience and resources to deliver unparalleled MSP compliance and cost savings results to the P&C industry. To find out more about Flagship, our team, and our customized solutions, please visit us at www.flagshipservicesgroup.com. To speak with us about any of our P&C MSP compliance products and services, you may also contact us at 888.444.4125 or info@flagshipsgi.com.


Tags: MSA, civil monetary penalties, Robert Finley, Flagship Services, CMP, MSP, Medicare, Medicare Second Payers

Robert J. Finley

Written by Robert J. Finley

Robert J. Finley, a partner with Hinshaw & Culbertson LLP, has litigation and trial practice experience focused in tort, employment and healthcare. He also counsels firm clients under health plans, auto, property/casualty, no-fault, and workers compensation policies on Medicare repayment and Medicaid reimbursement compliance. Robert advises Flagship Services Group on high value matters, in administrative hearings, and with educational solutions involving Medicare Secondary Payer issues. For more information, visit: https://www.hinshawlaw.com