On February 2, 2015, CMS issued an updated Section 111 NGHP User Guide incorporating the following language from the August 19, 2014, Alert addressing liability cases involving exposure, ingestion, or implantation and December 5, 1980:
Any operative amended complaint (or comparable supplemental pleading) must occur prior to the date of settlement, judgment, award, or other payment and must not have the effect of improperly shifting the burden to Medicare by amending the prior complaint(s) to remove any claim for medical damages, care, items and/or services, etc.
Where a complaint is amended by Court Order and that Order limits Medicare’s recovery claim based on the criteria contained in this alert, CMS will defer to the Order. CMS will not defer to Orders that contradict governing MSP policy, law, or regulation.
The August 19, 2014, Alert also provides that Medicare will assert a recovery claim if "[e]xposure, ingestion, or the alleged effects of an implant on or after December 5, 1980, is claimed, released, or effectively released in the most recently amended operative complaint or comparable supplemental pleading" (emphasis added). In addition, the Alert states that one of the conditions that must be met for Medicare to not assert a recovery claim is that "[e]xposure, ingestion, or an implant on or after December 5, 1980, has not been claimed in the most recently amended operative complaint (or comparable supplemental pleading) and/or specifically released" (emphasis added).
The new CMS User Guide does not include the underlined language above. However, we have contacted CMS and confirmed that this language was left out inadvertently and the August 19, 2014, alert is still in effect. We expect to see a new User Guide issued in the near future including the underlined language above and we will let you know when it has been issued.