Medicare and California Sales Tax An Analysis

Theres a rumor going around that a 3.8 percent sales tax will be applied to home sales in order to fund Medicare under the Affordable Care Act. Although that rumor is patently false, there has always been sales tax associated with certain Medicare-covered transactions.

Specifically, if your firm sells medical supplies and has been treating sales under Medicare Part B (Medicare B) as exempt from California sales tax, it is sitting on a fiscal time bomb. Since the program began, the California State Board of Equalization (Board) has been regularly assessing sales tax on Medicare B transactions in its audits.

Even businesses reporting correctly are generally confused about why sales under Medicare B are treated differently from sales under Part A. This article will discuss the different treatments and explain how sales tax applies to Medicare receipts in general.

Some sales under Medicare are always exempt, simply because the products involved fall under the general California exemption for prescription medicines. However, such transactions are outside the scope of this article, which solely addresses products ordinarily considered taxable when sold to patients. (Medical services are exempt from sales taxes in general, in California and nearly everywhere else.)

In order for an otherwise taxable product to be exempted from sales tax under Medicare, the product must be considered sold to the United States government rather than to the patient. Sales to the U.S. government are exempt from sales tax for Constitutional reasons. This exemption has been codified in California Revenue and Taxation Code Section 6381 and is further delineated by Sales and Use Tax Regulation 1614.

Whether a Medicare transaction is considered an exempt sale to the U.S. government or a taxable sale to an individual patient depends on whether the sale falls under Medicare Part A or Part B. All sales under Part A are regarded as exempt sales to the U.S. government. Sales under Part B are considered made directly to the patient, and they are taxable unless some other exemption applies (such as the exemption for sales for resale or sales in interstate commerce). Differences between Parts A and B that give rise to this distinction are discussed below.

Financing and Participation:

Medicare A is financed through payroll withholding and self-employment taxes. Participation is mandatory for anyone within the Social Security system. Most people who pay the taxes that fund Medicare A are under retirement age and not yet eligible for Medicare coverage.

Medicare B is financed partly through monthly premiums paid by those covered under the program. The rest of the financing comes from general funds of the federal government. Anyone covered by Part A is eligible for Part B, but participation in Part B is optional. Once participants enroll in the Medicare B program, they are required to pay the monthly premiums, generally through withholding from their Social Security checks.

Cost to Participants:

Medicare A is funded entirely through self-employment taxes and the Medicare percentage withheld from employee paychecks and matched by employers. There are no costs specific to participants.

Medicare B is charged directly to each participant, generally by a monthly deduction from the participants Social Security check. The monthly costs are considered medical insurance premiums and may be claimed as an itemized deduction on the participants income tax return.

Payment of Claims:

Medicare A payments are made directly to providers of medical products or services under a procedure mandated by federal law. Since the law requires direct payment by the U.S. government to providers, medical supplies sold by providers under Medicare A are considered sold to the U.S. Government.

Medicare B payments may be made either to providers or patients. If a provider has agreed to accept assignment of Medicare benefits (which essentially constitutes agreement to accept Medicares version of “reasonable charges”), the provider prepares and submits a claim form and is reimbursed directly by the insurer acting on behalf of the U.S. government. The patient pays only the deductible, co-insurance or non-allowable costs.

If the patient uses a provider who has not agreed to accept assignment of benefits, the patient pays the entire charge and then files a claim for reimbursement. Any such reimbursement goes directly to the patient. Under Medicare B, payments are considered reimbursements of charges to the patient, whether the payments go directly to the patient or to the provider on the patients behalf.

The U.S. Governments Position:

Medicare A does not allow reimbursement for sales taxes charged on medical supplies, based on the theory that providers are selling to the U.S. government and the sales are therefore exempt.

Medicare B has built sales taxes into its calculations of “reasonable charges,” as stated inMedicare Carriers Manualsection 5213. In accepting sales taxes as allowable charges under Medicare B, the U.S. Department of Health and Human Services has taken the position that sales under the program are not sales to the U.S. government.

Sales Tax Effect:

Medicare A payments are made directly by the U.S. government to providers under federal law, which theoretically results in sales to the United States as discussed above.

Medicare B payments may be made either directly to patients or to providers for the benefit of patients, depending on each patients choice of provider. The patients ability to make this choice has been interpreted to mean that payments under Medicare B are simply reimbursements to patients. Under this “patient reimbursement” theory, any sale by the provider under Medicare B is made to the patient rather than the United States, regardless of which party prepares the claim form or receives the reimbursement check.

Both the U.S. Department of Health and Human Services and the State Board of Equalization have accepted these legal interpretations, and it appears unlikely that an effort to re-characterize sales under Medicare B as sales to the U.S. government would prevail. If the law is ever changed to make direct payments to providers mandatory under Part B, the application of sales tax could well change with it.

Although subject to tax, amounts claimed for 80 percent reimbursement under Medicare B are considered to include applicable sales taxes, because the Medicare Carriers Manual defines “reasonable charges” as including such taxes. Accordingly, when providers report their taxable sales to the Board, they are entitled to claim a deduction for sales taxes included in Medicare B reimbursements.

Conclusion:

The theoretical justification for distinguishing sales under Medicare A from sales under Medicare B may not be entirely logical, but compliance with the Board of Equalizations interpretation is the only prudent approach. If you have been treating all sales under Medicare B as exempt, you should now begin reporting those sales as you would report sales to any private party.

But what about earlier periods? If your firm is selected for a Board audit, you undoubtedly will be billed for additional taxes for those periods. However, the amount of additional taxes may be subject to adjustment. This is true not only for Medicare sales but for any area where tax changes are recommended by Board auditors. Audits incorporate assumptions and tests that often can be modified and occasionally can be overcome.

Always remember that you have the right to review any tax auditors working papers or have a sales tax expert review the audit on your behalf. Exercising that right will at least bring you peace of mind. It might also result in significant tax savings.

Disability Attorney Represents Client After Metlife Denies Extension Of Long Term Disability Benefit

History behind need to hire a long-term disability attorney

When John Lanier graduated from college, he became a manager and software engineer. This eventually led to a position with KPMG Consulting, Inc. which became Bearing Point, Inc. in 2002.

The company offered an employee benefits package, which included both short-term and long-term disability benefits. The plan was administered by Metropolitan Life Insurance Company (MetLife). Its core components included an elimination period, followed by eligibility for three years of benefits if an employee was unable to perform the material and substantial duties of (his) Own Occupation. The plan stipulated that after the three years, an employee would only be considered disabled if he/she couldnt perform any job for which he/she was qualified for or could become qualified for when training, education and experience were taken into account.

As a manager at KPMG/Bearing Point, Lanier was required to travel extensively. This meant he spent hours of each day walking and sitting. He regularly carried a computer with him, as well as luggage. If a destination was within driving distance, he spent long hours driving. It was a regular requirement of his position to lift 10 20 lbs., carry 10 lbs., and push or pull 30 40 lbs. every day.

Lanier had been an active man throughout college. He didnt drink or smoke and maintained a healthy lifestyle. Despite this, back pain began to trouble him within years of leaving college. He finally resorted to surgery to see if it would help relieve his symptoms. The first surgery in 1999 included a lumbar diskectomy and a laminectomy. This was followed by a second laminectomy in 2001. The surgeries failed to be effective, so Lanier applied in October 2002 for short-term disability benefits under the Bearing Point employee benefits package administered by MetLife.

Evidence demonstrating disability

As evidence of his disability, he provided the diagnosis of his treating physician. The symptoms listed included:
– chronic cervical and lumbar pain
– left lumbosacral radiculopathy
– congenital narrowing of the spinal canal in the lumbar region
– fibromyalgia-like features expressed through chronic migratory pain
– objective anatomical abnormalities with multiple impairments in the cervical and lumbar spine
– advanced degenerative arthritis in the lumbar spine at multiple levels, disc protrusion and spondylosis from C3 all the way through T2
– bilateral ulnar neuropathy at the elbows
– dysfunctional sleep-wake cycles

It should be noted that his treating physician noted that he was also struggling with an anxiety disorder and depression at the time of his application.

Short-term disability approved

MetLife approved Laniers application for short-term disability. Coverage under short-term disability fell from October 9, 2002 through April 6, 2003. Lanier then applied for long-term disability benefits. He pointed to his severe fibromyalgia and osteoarthritis in the lumbar spine, and his degenerative disc disease as the basis for his claim. MetLife approved his claim on June 4, 2003, agreeing to pay benefits for 36 months under the own occupation clause of the plan. Coverage was to begin on April 7, 2003.

MetLife notified Lanier six months before his own occupation benefits were to expire, that the insurance company had determined that they would not approve him for continuing benefits under the any occupation terms of the policy.

The disability insurance company pointed to four pieces of evidence it had used to reach the conclusion that he would be able to work in another occupation:
1.Office visit notes from his attending physician, Dr. Geoffrey Seidel, dated April 25, 2005, July 26, 2005 and August 25, 2005
2.Prescription requests dated June 11, 2005 and July 1, 2005
3.Attending physician statement dated August 25, 2005
4.Physical capacity evaluation dated August 25, 2005

Need for disability attorney arises when MetLife denies continuing long-term disability benefits.

MetLife leaned most on Dr. Seidels physical capacity evaluation (PCE) to reach its conclusion that Lanier could work in another position. This evaluation suggested that Lanier was now able to sit for six hours a day, stand for one hour a day, and walk for an hour a day. This was an improvement over a January 9, 2003 PCE that reported that he was only able to sit for four hours intermittently, stand for one hour intermittently, and walk for one hour intermittently. MetLife claimed that Laniers training, education and experience meant he could work in a sedentary job.

They provided examples of three positions that they felt he could fill:
1) chief bank examiner,
2) controller with the Department of Transportation, or 3) a credit and collection manager.

Lanier hired a disability attorney and appealed MetLifes decision in March 2006. In his appeal, Lanier included a December 5, 2005 PCE in which Dr. Seidel corrected the misunderstandings created by the way he had filled out the PCE on August 25, 2005. Dr. Seidel explained that he had mistakenly carried an answer from the first page of the PCE onto the second page. The doctor informed MetLife that this had created a significant error, which he had corrected in the December 5, 2005 PCE.

This PCE rather than showing an improvement in Laniers condition reflected deterioration from January 9, 2003. Now, two years later, Lanier was limited to one to two hours per day working in a seated position. Dr. Seidel reported that any longer than this and Lanier suffered from headaches, unbearable back pain and radicular symptoms. He also reported that chiropractic adjustments had failed to bring consistent relief.

In addition to his doctors updated PCE, Lanier also provided proof that he had applied for Social Security disability benefits as MetLife required and been approved. Included with the benefits decision was testimony from vocational expert Elaine M. Tripi, PhD of Social Security. This expert, after reviewing Laniers symptomatology and functional limitations, concluded that he was unable to perform his past or any other work that exists in the community.

He also included four objective medical tests that confirmed his disability:

1.A September 22, 2005 electrodiagnostic test that confirmed his chronic left radiculopathy and proved that no changes have occurred since a 2003 test.
2.September 28, 2005 electrodiagnostic tests performed on his left and right elbows that revealed bilateral ulnar neuropathy. Dr. Seidel pointed to this test as proof that Lanier would not be able to perform typical sedentary work.
3.A September 23, 2005 MRI of the lumbroscal spine that confirmed the congenital and chronic disc disease diagnosis and provided additional evidence of spinal nerve root compression.
4.A September 26, 2005 MRI of the cervical spine performed that confirmed the worsening condition of his multi-level degenerative disc disease and stenosis as compared to the 2003 MRI.

Reversal of decision to deny long-term disability benefits makes it look like claimant no longer needs disability attorney.

This information compelled MetLife to reconsider its decision to deny Lanier long-term disability benefits. The disability insurance company reversed its denial of benefits on June 14, 2006. Laniers long-term disability benefits were reinstated, retroactive to April 7, 2006.

At the same time, Social Security had awarded Lanier $60,440 in retroactive benefits to April 2003. MetLife claimed that under the policy, Lanier owed MetLife $55,148 of this settlement. They announced that they would be reducing his monthly benefits by the $1990 he received from Social Security. In addition, beginning in January 2006, the disability insurance company would stop paying him benefits until he repaid the overpaid benefits. Lanier settled the matter on January 12, 2006.

Disability benefits attorney steps into picture again a year later.

MetLife sent Laniers medical records to two new medical experts for review. A MetLife clinical specialist reviewed the file and claimed that the evidence failed to support Laniers disability. Also, Mary L. Hale, vocational rehabilitation consultant, reviewed the August 25, 2005 PCE and a more recent May 3, 2006 functional capacity review.

Ignoring the updated December 5, 2005 PCE, she informed MetLife that there was no evidence to support the claim that Laniers abilities were less than sedentary. MetLife responded to this information by notifying Lanier on February 6, 2007 that the disability insurance company was terminating his long-term disability benefits once again.

Laniers disability attorney assisted him with appealing the cancelation of benefits on August 2, 2007. The letter to MetLife argued that the disability insurance benefits provider was failing to consider the information provided from his Social Security hearing in his first appeal.

The disability attorneys letter also pointed to the fact that MetLife erred by relying on the August 25, 2005 PCE. Included with the appeal was a February 19, 2006 note from Dr. Seidel stating that he had not seen an improvement in Laniers health since December 2005. He included a clear breakdown of Laniers physical abilities.

Able to sit for 15 to 20 minutes before having to get up, reposition, lie down or walk for a few minutes.

Unable to work at his computer at home for more than 20 minutes due to the spasms that occur in the back of his neck.

Pain in leg increases to the point where patient has lay down if patient sits for too long.
Difficulty coping from an emotional perspective.

MetLifes doctors claim medical evident fails to support disability.

MetLife sent Laniers appeal to two medical consultants. Both physicians chose to limit their reviews to the medical records sent to them by MetLife. Neither spoke with Lanier.
Dr. Reginald Gibbons, a psychiatrist, criticized Dr. Seidels diagnosis because he had not ordered cognitive tests to evaluate whether Laniers depression and anxiety created functional limitations. Dr. Sandar Pemmaraju, a physical medicine specialist, claimed that medical evidence failed to support Laniers inability to perform sedentary work and criticized the lack of a formal capacity examination in his file. Both physicians filed their reports with MetLife on August 21, 2007.

These two reports were sent to Dr. Seidel for his response on August 24. He did so on August 28. He noted that he had only received Dr. Pemmarajus review, so could only comment on it. He noted that Dr. Pemmarajus review ignored many of the clinical findings, suggesting that he had not looked at a complete medical record. He also noted that a full functional capacity evaluation had not been ordered, because there was no one who was willing to pay for it.

Once again Dr. Seidel confirmed the impairments that a recent examination had confirmed:
1.chronic cervical pain;
2.chronic lumbar pain;
3.left lumbrosacral radiculopathy;
4.right cervical radiculopathy;
5.fibromyalgia;
6.dysfunctional sleep-wake cycle;
7.objective reduced range of motion of the cervical spine, mild reduction in range of motion of the right shoulder, objective reduction in range of motion of the lumbar spine, and objective atrophy noted in the right upper extremity and left lower extremity;
8.Radiographic evidence of advanced severe degenerative joint disease of the cervical spine and lumbar spine in excess of what would be expected for his age.

If MetLife considered this response, there was no evidence in the administrative record that it did so. On September 6, 2007, the disability insurance company sent Lanier a denial letter.

The disability insurance company gave the following reasons for upholding the decision to reverse the decision to pay disability benefits:
[W]ith the medical records available for review, we concluded that the file did not contain any severity of impairment that resulted in functional limitations and restrictions preventing you from performing sedentary level of employment beyond February 6, 2007.

In completing our review, we have determined that although you have medical conditions that support you having restrictions and limitations, you would be able to perform sedentary level work. Your symptoms and diagnoses would not prevent you from performing the alternate occupations identified with alternate employers. Therefore, our original decision to terminate your long-term disability benefits beyond February 6, 2007 was appropriate.

Further medical evidence proving disability is ignored.

Lanier heard from MetLife again on September 20. This letter revealed that MetLife had ignored Dr. Seidels letter of August 28 because it didnt include any additional objective clinical proof supporting Laniers disability. Dr. Seidel order two more MRIs and electrodiagnostic testing of Laniers upper and lower extremities to rectify this.

The nerve conduction tests confirmed the presence of cubital tunnel neuropathy in both elbows and abnormalities in nerve function in his legs. The MRIs showed abnormalities. A small central protrusion at the C4-C5 level slightly flattened the vental cord, slightly effacing the exiting right and abutting the exiting left C5 nerves. The MRI also found mixed biforaminal protrusions, with the right protrusions being greater than the left. The MRI observed a flattening of the right side of the ventral cord at the C5-C6 level.

Mild retrolisthesis and mixed broad-based displacement with a slight flattening of the ventral cord at C6-C7 level that abutted the bilateral exiting C7 nerves was also noted. All of these abnormalities were reasonable explanations for the level of pain Lanier reported.

Disability attorney takes clients long-term disability termination to the Courts.

MetLife claimed that none of this new information had any bearing on their decision to terminate Laniers disability benefits as of February 7, 2007. The disability insurance company claimed that new test results dated September 2007, despite the fact that they demonstrated Laniers inability to perform sedentary work in September, failed to prove the results failed to demonstrate his inability to work in a sedentary job in February of the same year.

Lanier and his disability attorney took action. They filed a suit against MetLife. In a separate article, we will consider how Laniers disability insurance attorney presented the case before the U.S. District Court. The primary purpose here has been to show you how disability insurance companies work. Hiring an experienced disability insurance attorney with a strong track record is one of the wisest investments you can make if you ever face making a disability claim.