We have recently been working on a block of workers' compensation claims involving indemnity payments to spouses of deceased workers. While trying to design workable settlement options, Social Security survivor benefits have come into focus as an important part of the plan. The following are general eligibility criteria.
 
•         A widow or widower may receive full benefits at full retirement age or partial benefits as early as age 60.
•         A disabled widow or widower – as early as age 50 (pursuant to Social Security’s definition of disability).
•         A  widow or widower at any age if he or she is caretaker of the deceased’s child who is under age 16 or disabled, and receiving Social Security benefits.
•         Unmarried children under age 18 or up to age 19 if they are attending high school full time. There are some circumstances in which step-children, grandchildren, or adopted children can also become eligible for benefits.
•         Children at any age who were disabled before age 22 and remain disabled (per Social Security’s definition of disability).
•         Dependent parents age 62 or over.
•         Divorced spouses:  If a divorced spouse dies, the surviving spouse can receive benefits if the marriage lasted at least 10 years and the surviving spouse is age 60 (unless disabled, then can become eligible as early as age 50). However, if remarriage occurs, there are special considerations that apply.
 
There is a maximum family benefit that applies in these cases.  There is some variation in the calculations, but the maximum is usually between  150% and 180% of the deceased’s benefit amount.
 
Proper Social Security Benefits planning can be crucial to settling dependency claims and often makes the difference when figuring out what a surviving spouse will need as part of a settlement to maintain or improve his/her financial situation.

        

Frequently we are involved in claims where claimants spend an inordinate amount of time trying to "maximize" their settlement through creative accounting. As you are likely aware, claimants may not receive more than 80% of their pre-disability income through a combination of workers' compensation and Social Security disability. Unless a reverse offset state, settlement proceeds are prorated over the claimant's life expectancy and the monthly amount used to reduce the SSDI benefit. While methodologies for calculating the off-set are laid out in the SSA's POMS the number that feeds those calculations can be detailed in the workers' compensation settlement documents and for the most part, will be taken at face value by the SSA. How the number is calculated can be very creative. The life expectancy table selected alone can push the life expectancy 2 to 5 years out on the basis of race and gender.

 

On January 25, 2010, the South Carolina Supreme Court upheld a circuit court decision that the state's workers' compensation commission lacked the authority to force the insurer to stipulate in the settlement agreement the prorated calculation desired by the claimant. Claimant felt that the SC WCC possessed the power to order the language and frequently did and therefore should in her case. However the state courts concurred with the commission that it lacked the authority to force the insurer to include the language. The reasons for the insurers steadfast refusal to include the language were not provided.  Perhaps insurers in general are tired of watching claimants game the system and just decided not to participate.

 

Opinion available here

 

Comment: I have no problem with someone getting every dollar they are entitled to from our friends at the SSA and Medicare. As a taxpayer, I would like to see those entitlements pared back some. But if available, they sometimes make the difference between settling a case and leaving it open.

 

        

Attorney:

My client has a workers’ compensation MSA.  She has now been forced into bankruptcy.  She thinks she has been told by the bankruptcy attorneys that the creditors can deplete her MSA trust account.  What if any, protection does an MSA have against non medical creditors?  

Jen Answers:

MSAs are generally not protected funds even within federal entitlement programs  also overseen by CMS (such as Medicaid). As you can guess CMS has given little consideration to the impact of MSAs on anyone or anything other than Medicare. I'm no bankruptcy expert but apparently only WC indemnity benefits are exempt under 11 USC 522(d)(10)(C),  however debtor has a right to exempt property not in excess of $18,450 traceable to personal bodily injury compensation under 522(d)(11)(D)&(E). The MSA is arguably outside the scope of the 522(d)(10)(C) exemption since not technically representative of lost future earnings given the medical intend of the funds. Subsection (d)(11) is typically not applicable to WC awards, intended for use in tort claims, however judicial interpretation seems to also not see anything in the language that prohibits its use in WC related claims. Again, not a subject that I have researched extensively, but I would point you to In re Sanchez (362 BR 342 - Jan. 31, 2007). If that matter eventually reached a resolution of the disputed issues, your answer may be found there.

        

Question:

I have heard that an RRE is not required to report certain liability claims if they have a certain date of loss. What does that mean? I have several occupational exposure claims I am working on and am not sure how the MSP applies.

Answer:

I believe you are referring to claims that pre date the enactment of the Medicare Secondary Payer Act (MSP).
RREs generally are not required to report liability insurance (including self-insurance) or no-fault insurance settlements, judgments, awards or other payments where the date of incident (DOI) as defined by CMS was prior to December 5, 1980. (See exception in discussion below of cases involving “exposure.”)

For claims involving “exposure”, this means that there was no exposure on or after December 5, 1980, alleged, established, and/or released. If any exposure for December 5, 1980 or a subsequent date was claimed and/or released, then Medicare has a potential recovery claim and the RRE must report for Section 111 purposes.  For example, if the date of 1^st exposure is prior to December 5, 1980, but that exposure continues on or after December 5, 1980; Medicare has a potential recovery claim.

 

        

Question:

I am reading the CMS townhall transcripts are am a little confused. Are they saying we need to report all WC claims that involve a Medicare beneficiary? I heard $600 was the threshold?

Answer:

This question is actually a little tricky. Through 12/31/2011, WC TPOCs (settlements) of $0 - $5K are exempt from reporting; however, RREs are not required to adhere to the thresholds if the RRE also has ongoing responsibility for medicals (ORM). Many are saying that if there is ORM, then it's easier for them to go ahead and report all TPOCs despite the thresholds as a matter of course. Basically, it's one less variable to consider so that is what makes reporting everything easier. As long as there is ORM, reporting TPOCs of all amounts is acceptable.

 

I think you are thinking of where the threshold eventually ends up down the road - $0-$600 is the threshold for exemption from 1/1/13 - 12/31/13. Section 11.4 of the User Guide lays it out, but honestly, I refer to it every time there is a question. It's not an easy read.

 

The most typical course for a WC claim is going to be

 

1) RRE submits an Add Record - reporting ORM

2) RRE submits an Update Record - reporting ORM termination + TPOC

 

If a denied claim and ORM is never accepted, but they settle, then there would just be one Add Record and thresholds would apply. The threshold amount now is $5K, but slowly decreases until 1/1/14 when thresholds no longer apply and all TPOCs must be reported.

 

I hope that helps/answers the question...

        

In the tradition of Joe Paduda and his excellent weblog (www.joepaduda.com), MEDVAL would like to make its own predictions as it relates to the Medicare Set Aside market in 2010.

1. Ringler Associates, the structured settlement firm, will try their hand at MSAs by hiring David Hays from Xchanging and cost their clients millions while they learn on the job.

2. Chartis will replace their current MMSEA reporting agent with ISO because the solution initially sold to them will not work as advertised.

3. Protocols will spend another $100,000 suing CMS and nothing will change. (But kudos for fighting the good fight)

4. HIG Capital will not find a buyer for PMSI as their turnaround strategy fails to take hold and clients realize WC PBM's have never lived up to their promise. Their iPhone app will be used by double the number of people as in 2009 which will be four.

5. Crowe Paradis will be this blog's #1 MSA industry reader exceeding their 228 visits in 2009. They will also change their incorrect marketing and no longer claim to be "the only national MSA firm to use both a nurse and attorney on every file" when they realize MEDVAL has been doing exactly that three years before they were founded.

6. Coventry will settle at least one lawsuit brought under their guaranteed MSA program of yesteryear.

7. An MMSEA reporting agent will not report an eligible claim(s) and their client will pay a $1,000 per day penalty.

8. One CMS official will officially acknowledge that MSAs are appropriate for liability claims.

9. Another CMS official will officially deny that MSAs are appropriate for liability claims.

10. Gould and Lamb will add new clients faster than they lose their old ones. 
 

We will revisit these predictions at the end of the year and see just how much comes to fruition.

        

2010 will bring some  changes to The Official Medicare Set-Aside Blog and Information Resource. Expect more provocative industry commentary, a greater emphasis on liability claims, weekly feature columns by our attorneys and clinicians and a whole new look and feel.

Our goal is to prepare one new post per day so check back often and feel free to contribute your own content by commenting on a post or emailing us items of interest. Our full blog schedule will begin next week so check back often. 

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We received a call today from the claimant in New Jersey that has a settlement hearing tomorrow. After going through the usual "are you represented" and "who is the insurer/tpa" questions to avoid stepping on any toes, he launched into the saga that is his workers' comp claim.

 

The long and short of it is that he has a CMS approval letter from 2007 approving $18,000 for the MSA. However, he is currently taking $15,000 PER MONTH in Medicare covered Rx which according to him is the full responsibility of his prior employer and the TPA.

 

The TPA is representing that the 18k MSA that was approved more than two years ago fully protects Medicare's interest under the theory that MSA approvals never expire. The claimant is very hesitant to settle his case because he will spend the 18k in exactly 40 days instead of the 18.9 years it is projected to last. He wisely concluded that even if Medicare was to pay his claim under Part D, there would be substantial out of pocket funds required to fill his Rx going forward. (of course his settlement may be for 2MM and that isn't an issue. Not enough information to draw a conclusion here).

 

So the question is, did the TPA adequately protect Medicare's interest by relying on a two year old MSA that was approved by CMS or do they have a duty to add additional funds to the MSA since they have knowledge that the amount is completely inadequate? What liability does the employer, TPA and claimant have under this scenario?

 

What would you do if you were the adjuster, attorney or TPA? Comments welcomed.

 

  
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Sixty Minutes aired an excellent special last night dealing with the difficult issue of end of life treatment costs. As Congress debates health care and the future of Medicare, this is an important ethical component to debate.

 

http://www.cbsnews.com/video/watch/?id=5737138n&tag=api

 

While we deal primarily with issues concerning the Medicare Secondary Payer Act and CMS' efforts to enforce the law, it seems like a tiny sliver of the pie when you examine the staggering end of life costs paid by Medicare. Last year it was estimated that Medicare paid $50 billion for expenses incurred for beneficiaries during the last two months of life.

 

The white elephant in the room is right in front of us yet there is precious little leadership willing to take on the issue. Medicare can have a blank check policy or fiscal solvency. I don't see how it can have both.

 

CMS is going to have to hustle down a lot of $50,000 workers' compensation settlements to balance that checkbook.

 

 

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How much would you award this person if you were on the jury during his Medical Malpractice trial?

 

http://www.guardian.co.uk/world/2009/nov/23/man-trapped-coma-23-years

 

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And the best part is you do not need to be terribly qualified. You just need to have a GED, two years of work experience and only make mistakes in 20% of your cases (what else could 80% accuracy mean?).

 

HIG Capital has reportedly been spending some serious capital upgrading the badly floundering PMSI. But clearly they are not at all interested in investing in the human capital required to produce a top notch Medicare Set-Aside product.

 

For a company that has been in the MSA business for a pretty long time, it is hard to believe they still don't get it. Read their job description and then compare it to MEDVAL’s newest “MSA Specialist I”.

 

Description

MSA Specialist I:

 Responsible for the production of Medicare Set Aside Allocations.

 

Basic Functions:

• Reviews and analyzes medical records and Medicare payout information to determine an appropriate Medicare Set Aside (MSA) Allocation for recommendation to clients.
• Conducts research on Medicare expenses allowed in appropriate state for workers’ compensation and keeps abreast of all changes in law and Centers for Medicare/Medicaid Services guidelines.
• According to PMSI MSA Services guidelines, writes the MSA report, calculates financial grid for injury- and non-injury-related medical expenses and coordinates with PMSI for related pharmaceutical costs.
• Works with claim adjusters to obtain clarification on outstanding issues for MSA.
• Works with claim adjusters and attorneys in negotiating and defending recommended allocations as necessary.
• Works with Case Management Specialists in coordinating daily work deadlines per PMSI MSA Services’ production standards.
• Maintains level of 80 percent accuracy in monthly quality control evaluation.
• According to PMSI MSA Services guidelines, maintains a minimum production level of 25 Medicare Set-Aside allocations per month.

Requirements

Job Qualifications:

Education:

• Required: High School Education
• Desired: Bachelor’s Degree in Business Administration or Insurance, Bachelor’s of Science or equivalent experience

Work Experience:

• Required: Minimum of two years workers’ compensation or liability claims experience or RN with case management and workers’ compensation or liability claims experience.

Licenses/Certifications:

• Desired:  RN, CLCP, MSCC

***Please apply via our website:www.pmsionline.com***

 

 

MEDVAL’s newest team member:

 

MARILYN J. LARRIMER, JD/RN

• Practicing Attorney, Civil Litigation (21 years)
• Licensed Registered Nurse (21 years)
• Captain, United States Army Reserve (8 years)

BSN Nursing – University of Pittsburgh

Juris Doctor – Duquesne University

 

 

Who would you rather have doing your MSAs?

 

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Question by an attorney looking to do the right thing for her client:

 

This is a workers’ compensation claim involving full and final settlement for future medicals.  The MSA was prepared March 25, 2009.  Settlement documents were completed and approved by the judge in October 2009.  Because the MSA was done prior to CMS’ June 2009 revamping of prescription costs, donut hole, co-pays, etc., the MSA proposal would need to be increased to bring it in line with the changes.

 

The recommendation by my clients’ third-party vendor is to not submit the Settlement Agreement with MSA proposal to CMS for formal approval.  Their recommendation seems to be to make no changes to the MSA we already have. The theory is that the purpose of the Medicare Secondary Payer Act is to ensure that Medicare’s interests are considered and adequately protected when there is a settlement closing future medicals. There is no specific requirement stating that CMS approval is mandatory.

 

I appreciate there has never been a formal statutory requirement that parties to a workers’ compensation claim with MSAs for future medicals submit the proposals to CMS and gain formal approval.  However, my personal belief has been that the submission to CMS with the resulting letter from CMS approving the proposed MSA has provided at least some extra level of protection to my clients in case there is ever a question (or assertion) as to whether the MSA was properly funded.

 

I think regardless as to whether we ultimately submit the settlement with proposed MSA to CMS, at a minimum we would need to have the MSA revised and funded to account for the changes that became effective this past summer.  I am not sure how comfortable I am with the “let sleeping dogs lie” approach being recommended by the vendor.

 

 

MEDVAL answers:

 

For the record, we are not the vendor in question but would probably agree with their recommendations depending on the specifics of the case.

 

This attorney is correct that there is no formal statutory requirement to submit an MSA to CMS for approval (nor a requirement to do an MSA at all for that matter). She is also correct in her analysis that seeking CMS approval provides a benefit to her client, presumably the insurer. Namely, CMS has indicated that if the parties go through the formal WCMSA review process, CMS will probably not come knocking on anyone's door in the future looking for reimbursement in the event the claimant eventually taps Medicare for treatment of a work related injury.

 

But it also has an associated cost. Sometimes a MASSIVE cost.

 

For example, we recently had a case where an MSA was prepared 18 months ago and the Insurer settled based on the amount at the time (around $130,000). When updating the MSA to new CMS protocols, the cost ballooned to over $500,000.  Not because the treatment changed, not because we used some sort of loophole to artificially reduce the MSA (more on that subject later) but solely because of AWP and the idea the CMS will look to the claimant's current medication regimen as a reliable predictor of future utilization.

 

No one involved in the claim has any doubt that $130,000 is more than adequate to make sure this claimant never seeks Medicare coverage for her work related injury. Her exact drug regimen can be purchased for 60% less than the AWP pricing used by CMS. So the question becomes, is the CMS approval worth $370,000 extra dollars? Are the real and imagined risks of CMS "coming after" the insurer worth paying $370,000 today for an injury that will likely never consume the $130,000 originally set-aside?

 

I don't know. That is a risk management decision for the client to make. If you want my opinion, as long as the MSA was based on a rational, logical and reasonable course of future treatment, then CMS has an almost insurmountable burden of trying to prove that the insurer did not meet their obligations under the MSP.  If the claim is worth $130,000 for future medicals than that is what should be set-aside. No more and no less.

 

I think it would be appropriate to look at what the new review protocols would cost relative to the actual value of the case and the amount that would reasonably protect Medicare's interests. If it is in an acceptable dollar range and the client feels the review process provides a benefit, then by all means submit the case. If the MSA was calculated using some dubious method (like deducting the donut hole or using Medicare co-pays which in my opinion was a massive fraud perpetrated upon the insurance industry and genuinely injured workers to increase market share and profits by a few MSA vendors) then it should be recalculated to reflect the correct amount to be set-aside.  Not because CMS or WCRC protocols demand it, but because it is your client's obligation under the MSP.

 

 
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CMS employee Tom Bosserman of the San Francisco regional office, prolific clarifier of opaque Health and Human Services policy, had this to say regarding Medicare's recovery rights in a wrongful death action.

 

"If the beneficiary's Estate pursues a Liability insurance settlement,

then Medicare will assert a right of recovery.  However, if the

settlement is solely for Wrongful Death, then Medicare will not pursue

recovery.

 

Wrongful Death statutes are State laws which permit a person's survivors

to assert the claims and rights that the decedent had at the time of

death. These laws may include recovering for the deceased's medical

expenses.  When a liability insurance payment is made pursuant to a

Wrongful Death action, Medicare may recover from the payment only if the

State statute permits recovery of these medical expenses.  Generally, if

the statute permits recovery of the deceased's medical expenses,

Medicare may pursue its payments, even if the action fails to explicitly

request damages to cover medical expenses.  Thus, in that event, even if

the entire cause of action sets forth only the relatives and/or heirs

damages and losses, then Medicare may still recover its payments.  If a

Wrongful Death statute does not permit recovering medical damages,

Medicare has no claim to the Wrongful Death payments.

 

When State law permits a full recovery of medical damages but limits the

amount of the recovery which is payable to creditors as a result of past

medical expenses, Medicare may recover against the entire tort recovery,

up to the full amount of past Medicare payments. However, when State law

limits the amount of the past medical expenses which may be recovered

from the tortfeasor and responsible insurer, Medicare may recover only

up to that amount (or the amount of the settlement, if the settlement is

less than or equal to Medicare's claim.)

 

Any Wrongful Death settlement agreement would have to be closely

examined to ensure that only a wrongful death claim is involved.  There

may be instances when the settlement also specifically provides for

payment of a decedent's medical damages that would not be properly

classified as a purely Wrongful Death action, no matter how the matter

is captioned.  In such a situation, Medicare is entitled to recover its

medical expenses from the proceeds of a settlement from the defendant's

insurer (or from any defendant who is self-insured).  Because the

Wrongful Death action joins the damage claims of the Medicare

beneficiary's heirs with the claim for medical expenses asserted by the

beneficiary's Estate, the plaintiff's attorney may contend that any

settlement / judgment is intended solely to compensate the heirs.

Therefore, it is important to note that  (in the absence of a specific

Court determination of the recovery amount attributable to medical

damages)  where any portion of recovery could relate to medical

expenses, Medicare asserts its recovery rights against the entire amount

of the settlement"

 

Compliment to Tom Bosserman from the NAMSAP listserv:

 

"I love Bosserman, he is a smart guy who helps when he can and does the right thing" - Henry Krohnlein - Protocols, LLC

 

 

To profess YOUR love to Tom, email him at Bosserman, Thomas M. (CMS/WC)

 

 

Email Provided courtesy of:

 

Linda Nelson, CCM, CLCP, MSCC

Medical Management Resources, Inc.

PO Box 4818

Helena, Montana 59604

406-449-3600

Fax: 406-443-2088
www.mmrimt.com

 

 

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It appears that 2010 could certainly be a troubling year for many physicians, especially those whose practices are primarily directed to Medicare beneficiaries.    A scheduled 21% cut in Medicare reimbursement rates to physicians is looming as the Senate voted last week against stopping that cut, as well as more annual cuts over the next decade.  CNNMoney.com posted an article yesterday summarizing the plights of several physicians who want to continue to treat Medicare patients but will not be able to cover the expenses associated with doing so if the planned cuts are made.  In fact, in cities such as Las Vegas and Anchorage, Alaska, Medicare beneficiaries are already finding that they are often unable to secure physicians’ services.   What’s happening in Vegas may not stay in Vegas this time but may actually be a prelude to what’s to come in other cities next year.

 

The Centers for Medicare and Medicaid Services  (CMS) weighed in on the subject and noted that its data actually supports the finding that there is only a small percentage of current Medicare beneficiaries that are unable to obtain physician care at this time.  CMS referenced a Government Accountability Office  (GAO) report that revealed less than 3% of Medicare beneficiaries reported “major difficulties” when trying to obtain treatment from physicians in 2007 and 2008.   While Congress has blocked cuts in physicians’ reimbursement rates in recent years, Federal statutes require that an annual adjustment be made to these rates based on the strength of the economy.  As more seniors become Medicare eligible and the economic outlook continues to be uncertain, healthcare reform agendas need to address this issue while preserving the quality and availability of medical care to our seniors and others who receive Medicare benefits.

 

To read this article in its entirety, please visit: http://money.cnn.com/2009/10/27/news/economy/healthcare_medicare_doctors/index.htm

 

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Responses to Unanswered Questions

 

    First, I would like to thank everyone who attended the teleconference today. With all the MSP changes that have occurred in the past year or so, it is a lot of information to fit in 90 minutes and I only hope that everyone was satisfied with the contents. 90 minutes does not allow for any real in-depth discussion of the many intricacies that the MSP has developed over recent years, so please feel free to send questions as you process what was discussed. In the past, we have generally maintained a dialogue for several days following the call. This is the fourth time Lorman has requested that I give this call this year, so clearly it is still a hot topic desperately in need of more understanding in both the legal and insurance industries, as well as obviously the federal government. Again thank you for your time and interest in today’s topic and let me know if I can be of any assistance with your future MSP issues.

 

 

What is the time line for resolving the conditional payments issue? I was under the impression that they were not resolved until after the settlement was complete, but from what you said today, it sounds like they can be dealt with earlier....can you address? 

 

In a liability settlement, you cannot technically settle an overpayment demand until the settlement is reached because the obligation does not arise until that point. However you can initiate the search and have dialogue with the MSPRC with regard to ballpark figures. Unless extenuating circumstances exist in which you posses a chance of obtaining a waiver, you can pretty closely determine your obligation because procurement costs are likely the only thing to be considered. However you are correct in that you cannot resolve the issue until after settlement. If you’ve done all the leg work proactively, you can likely be ready to make that payment nearly upon settlement.  

 

If a liability settlement is entered into without a MSA, is there any possibility that Medicare would ever have recourse against a settling defendant? We have heard this from more than one insurance company and defense attorney.

 

It would take one simple act of Congress to adopt the same regulation that exists in WC for intentionally shifting the burden of future related medical treatment to Medicare, permitting it to entirely ignore the settlement. But as it stands, there is currently no definitive statutory authority for Medicare’s recourse against a defendant who took no MSP measures in its settlement. The threat is in Medicare potentially electing to provide conditional payments for treatment post-settlement (as is its right under the secondary payer act) because the beneficiary was technically not provided with funds for the same in the settlement, payments for which CMS seeks recovery from the defendant, backed by the full weight of statutory recovery rights regardless of the settlement. Under that theory, Medicare would still have the right to track down every payee for every dollar from the settlement to pay for the related medical treatment even though occurring after the fact. From a public policy standpoint, it is hard to image Medicare denying anyone medical treatment so this is a very real possibility.

 

Why would you even submit for CMS review? Isn't it better to just take your chances?

 

I wouldn’t just take my chances so much as do everything within reason to comply with the MSP with respect to my settlement short of pay unnecessarily high amounts of money based upon unreasonable policies by CMS. There are in my opinion many ways in which to better protect Medicare’s interests in a settlement rather than those which CMS has implemented in its WCMSA review program. So long as MSP obligations are met, CMS will have to prove otherwise should it wish to challenge the adequacy of an allocation in the future. If that occasion even arises, chances are that something drastically changed with respect to the medical condition that was not foreseeable at the time of injury and worthy of debate – and most importantly, this likely represent less than 1% of all settlements that took MSP measures seriously. For the most part, the vast majority of claims settled with MSAs will likely never utilize the funds set-aside for their intended purposes so self-insuring against such a small possibility seems like the only reasonable course of action rather than pay a premium in every case for assurances that I question with withstand time.

 

Are set-asides only required in work comp cases, or are they also required in personal injury cases that are not work-related? And if required in regular PI cases, is it up to Plaintiff's counsel to set up the set-aside trust, or does the third-party settling tortfeasor have the obligation?

 

The only thing that is “required” in any insurance settlement is that Medicare is prohibited from providing related treatment. A set-aside is basically the only way to effectively prevent that occurrence, whether WC or liability, as the source of the obligation is the same.

 

There is no requirement that the set-aside allocation be in a formal trust. A competent Medicare beneficiary is capable of administering the funds. However professional administration services do exist and carry an annual cost. Determination of whose obligation it is to set up an MSA account such as this is a point of negotiation among the parties as part of the settlement.

 

If the injured party has health insurance, e.g., through a spouse, at the time of a settlement involving a liability insurer, is there any reporting requirement or set aside agreement requirement?

 

CMS’ position in WC is that the health insurance could always disappear and Medicare entitlement will always remain, therefore MSA is appropriate -  so it can only be assumed that the same theory would apply to liability. Regardless, it would be most prudent to make an allocation whether the money is actually ever used or needed to treat the injury/illness subject to the settlement. Documentation in the settlement agreement will at least limit the amount that needs to be demonstrated was spent on related treatment prior to Medicare benefits becoming available should they ever become needed.

 

Now as a totally separate issue, the reporting requirement has nothing to do with the need for a set-aside arrangement. An insurer will always have an obligation to report the settlement of any claim by a Medicare beneficiary.

 

Are there MSA vendors that will assist with recommendations of MSA amounts in liability settlements?

 

Most MSA vendors will make liability recommendations. But be aware of what you are asking for when you select your vendor. Many will provide the same recommendation as would be made for CMS review of a WC claim. Although that figure would more than adequately protect Medicare’s interests in the settlement, it may not serve the other parties well in that it is likely too large with respect to the total settlement amount in compromise settlements. MSAs at the other extreme may be overly aggressive and only protect Medicare’s interests to the letter of the statute and regulations, leaving the injured beneficiary with quite possibly inadequate funds to actually treat. Basically you need to select a vendor that can help you determine to what extent you want to protect all parties to the settlement and provide settlement solutions that fit your needs.

 

If the entire settlement amount, or the entire settlement amount less procurement costs are sent to Medicare, and they return a portion to the beneficiary, could there still be a need for a set aside?

 

The process of sending the entire settlement check to Medicare is only effective to resolve conditional payment amounts. Medicare will not, and apparently cannot, accept any funds in anticipation of future medical expenses. If anticipated future related medical needs exist, you would certainly still need an MSA.

 

Would a defendant in a liability claim be protected if separate checks were issued for procurement costs payable to plaintiff and attorney, with remainder paid to plaintiff, attorney and Medicare?

 

Not as well as giving Medicare the first shot at resolving its claim from the total settlement. Plaintiff and attorney lose their incentive to cooperate in the Medicare issues if they’ve received the majority of their share. But if it becomes a deal breaker, and you have a decent estimate of the Medicare claim, that is still better than a hold harmless or indemnification agreement.

 

In a liability situation, would a jury verdict stating an amount of future medical expenses be definitive to Medicare if they begin denying claims of the plaintiff?

 

That amount would serve as the deductible before Medicare benefits would become available for treatment of that injury/illness. Thing to always remember is that CMS is constrained by the laws that give rise to the underlying claim, and are similarly bound by any judgments or awards granted on the basis of the same.

 

In WC setting, what if settlement is for claim rejection/denial - is MSA even an issue because per se no treatment under the WC claim?

 

CMS will accept that no MSA is being made because the claim is totally denied so long as you provide the legal theory for the basis of the denial and demonstrate that no indemnity or medical payments have ever been made (or the reasons for the ones made).

 

Do you need to have an MSA if the claimant is not a Medicare recipient and has no reasonable expectation of becoming one?

 

Unless an undocumented worker or someone similarly situated with respect to Medicare entitlement, everyone will become eligible for Medicare at age 65 regardless of whether they ever enroll. In CMS’s eyes, where there is foreseeable related medical, an MSA is necessary at least from age 65 on in order ensure that Medicare coverage is never sought should whatever other medical benefits disappear. In reality, although the money is ear marked for such, if in fact there is never any need for it for related medical treatment, the claimant is free to do as he pleases with the funds, understanding of course that should Medicare treatment ever be needed that the amount will act as essentially a deductible before Medicare benefits will be provided.

 

Does Medicare have the ability to take action against a plaintiff's attorney if the attorney gets a reduction for procurement costs then gives all or a portion of the reduction to the plaintiff?

 

So long as Medicare’s demand is satisfied, it would have no further claim against any of the parties to the settlement. What an attorney decided to do with or about his fee I assume is his decision unless state law regarding attorney conduct would have provisions about such matters. 

 

What are attorneys 3 obligations to Medicare?

 

1. Repay any Medicare payments made for past treatment related to the claim
2. Provide adequate funds to pay for future treatment related to the claim that is otherwise covered by Medicare
3. Report all insurance settlements or open workers’ compensation claims with an on-going responsibility for medicals or Medicare beneficiaries to CMS  (technically that one only falls on the insurer but defense counsel would be remiss not to remind its client of the obligation)

 

Would Medicare stop future benefits after being paid from a third party settlement?

 

Medicare is supposed to exclude related benefits post-settlement but that is currently contingent upon MSPRC knowledge of the settlement and enforcement efforts. If we can talk in terms of 6 months from now, Medicare will be on notice of all settlements and have the information in their “common working file” to know to deny payments for treatment of the related injury/illness. So under the MSP, Medicare should not provide benefits but it is impossible to know what the reality in practice will be. My concern would be that Medicare would mistakenly make payment, figure it out, and then seek repayment from the deepest pockets available in receipt of funds from the settlement, possibly leaving no settlement ever entirely final.

 

 

MEDVAL  1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

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Responses to Unanswered Questions

 

    First, I would like to thank everyone who attended the teleconference today. With all the MSP changes that have occurred in the past year or so, it is a lot of information to fit in 90 minutes and I only hope that everyone was satisfied with the contents. 90 minutes does not allow for any real in-depth discussion of the many intricacies that the MSP has developed over recent years, so please feel free to send questions as you process what was discussed. In the past, we have generally maintained a dialogue for several days following the call. This is the fourth time Lorman has requested that I give this call this year, so clearly it is still a hot topic desperately in need of more understanding in both the legal and insurance industries, as well as obviously the federal government. Again thank you for your time and interest in today’s topic and let me know if I can be of any assistance with your future MSP issues.

 

 

What is the time line for resolving the conditional payments issue? I was under the impression that they were not resolved until after the settlement was complete, but from what you said today, it sounds like they can be dealt with earlier....can you address? 

 

In a liability settlement, you cannot technically settle an overpayment demand until the settlement is reached because the obligation does not arise until that point. However you can initiate the search and have dialogue with the MSPRC with regard to ballpark figures. Unless extenuating circumstances exist in which you posses a chance of obtaining a waiver, you can pretty closely determine your obligation because procurement costs are likely the only thing to be considered. However you are correct in that you cannot resolve the issue until after settlement. If you’ve done all the leg work proactively, you can likely be ready to make that payment nearly upon settlement.  

 

If a liability settlement is entered into without a MSA, is there any possibility that Medicare would ever have recourse against a settling defendant? We have heard this from more than one insurance company and defense attorney.

 

It would take one simple act of Congress to adopt the same regulation that exists in WC for intentionally shifting the burden of future related medical treatment to Medicare, permitting it to entirely ignore the settlement. But as it stands, there is currently no definitive statutory authority for Medicare’s recourse against a defendant who took no MSP measures in its settlement. The threat is in Medicare potentially electing to provide conditional payments for treatment post-settlement (as is its right under the secondary payer act) because the beneficiary was technically not provided with funds for the same in the settlement, payments for which CMS seeks recovery from the defendant, backed by the full weight of statutory recovery rights regardless of the settlement. Under that theory, Medicare would still have the right to track down every payee for every dollar from the settlement to pay for the related medical treatment even though occurring after the fact. From a public policy standpoint, it is hard to image Medicare denying anyone medical treatment so this is a very real possibility.

 

Why would you even submit for CMS review? Isn't it better to just take your chances?

 

I wouldn’t just take my chances so much as do everything within reason to comply with the MSP with respect to my settlement short of pay unnecessarily high amounts of money based upon unreasonable policies by CMS. There are in my opinion many ways in which to better protect Medicare’s interests in a settlement rather than those which CMS has implemented in its WCMSA review program. So long as MSP obligations are met, CMS will have to prove otherwise should it wish to challenge the adequacy of an allocation in the future. If that occasion even arises, chances are that something drastically changed with respect to the medical condition that was not foreseeable at the time of injury and worthy of debate – and most importantly, this likely represent less than 1% of all settlements that took MSP measures seriously. For the most part, the vast majority of claims settled with MSAs will likely never utilize the funds set-aside for their intended purposes so self-insuring against such a small possibility seems like the only reasonable course of action rather than pay a premium in every case for assurances that I question with withstand time.

 

Are set-asides only required in work comp cases, or are they also required in personal injury cases that are not work-related? And if required in regular PI cases, is it up to Plaintiff's counsel to set up the set-aside trust, or does the third-party settling tortfeasor have the obligation?

 

The only thing that is “required” in any insurance settlement is that Medicare is prohibited from providing related treatment. A set-aside is basically the only way to effectively prevent that occurrence, whether WC or liability, as the source of the obligation is the same.

 

There is no requirement that the set-aside allocation be in a formal trust. A competent Medicare beneficiary is capable of administering the funds. However professional administration services do exist and carry an annual cost. Determination of whose obligation it is to set up an MSA account such as this is a point of negotiation among the parties as part of the settlement.

 

If the injured party has health insurance, e.g., through a spouse, at the time of a settlement involving a liability insurer, is there any reporting requirement or set aside agreement requirement?

 

CMS’ position in WC is that the health insurance could always disappear and Medicare entitlement will always remain, therefore MSA is appropriate -  so it can only be assumed that the same theory would apply to liability. Regardless, it would be most prudent to make an allocation whether the money is actually ever used or needed to treat the injury/illness subject to the settlement. Documentation in the settlement agreement will at least limit the amount that needs to be demonstrated was spent on related treatment prior to Medicare benefits becoming available should they ever become needed.

 

Now as a totally separate issue, the reporting requirement has nothing to do with the need for a set-aside arrangement. An insurer will always have an obligation to report the settlement of any claim by a Medicare beneficiary.

 

Are there MSA vendors that will assist with recommendations of MSA amounts in liability settlements?

 

Most MSA vendors will make liability recommendations. But be aware of what you are asking for when you select your vendor. Many will provide the same recommendation as would be made for CMS review of a WC claim. Although that figure would more than adequately protect Medicare’s interests in the settlement, it may not serve the other parties well in that it is likely too large with respect to the total settlement amount in compromise settlements. MSAs at the other extreme may be overly aggressive and only protect Medicare’s interests to the letter of the statute and regulations, leaving the injured beneficiary with quite possibly inadequate funds to actually treat. Basically you need to select a vendor that can help you determine to what extent you want to protect all parties to the settlement and provide settlement solutions that fit your needs.

 

If the entire settlement amount, or the entire settlement amount less procurement costs are sent to Medicare, and they return a portion to the beneficiary, could there still be a need for a set aside?

 

The process of sending the entire settlement check to Medicare is only effective to resolve conditional payment amounts. Medicare will not, and apparently cannot, accept any funds in anticipation of future medical expenses. If anticipated future related medical needs exist, you would certainly still need an MSA.

 

Would a defendant in a liability claim be protected if separate checks were issued for procurement costs payable to plaintiff and attorney, with remainder paid to plaintiff, attorney and Medicare?

 

Not as well as giving Medicare the first shot at resolving its claim from the total settlement. Plaintiff and attorney lose their incentive to cooperate in the Medicare issues if they’ve received the majority of their share. But if it becomes a deal breaker, and you have a decent estimate of the Medicare claim, that is still better than a hold harmless or indemnification agreement.

 

In a liability situation, would a jury verdict stating an amount of future medical expenses be definitive to Medicare if they begin denying claims of the plaintiff?

 

That amount would serve as the deductible before Medicare benefits would become available for treatment of that injury/illness. Thing to always remember is that CMS is constrained by the laws that give rise to the underlying claim, and are similarly bound by any judgments or awards granted on the basis of the same.

 

In WC setting, what if settlement is for claim rejection/denial - is MSA even an issue because per se no treatment under the WC claim?

 

CMS will accept that no MSA is being made because the claim is totally denied so long as you provide the legal theory for the basis of the denial and demonstrate that no indemnity or medical payments have ever been made (or the reasons for the ones made).

 

Do you need to have an MSA if the claimant is not a Medicare recipient and has no reasonable expectation of becoming one?

 

Unless an undocumented worker or someone similarly situated with respect to Medicare entitlement, everyone will become eligible for Medicare at age 65 regardless of whether they ever enroll. In CMS’s eyes, where there is foreseeable related medical, an MSA is necessary at least from age 65 on in order ensure that Medicare coverage is never sought should whatever other medical benefits disappear. In reality, although the money is ear marked for such, if in fact there is never any need for it for related medical treatment, the claimant is free to do as he pleases with the funds, understanding of course that should Medicare treatment ever be needed that the amount will act as essentially a deductible before Medicare benefits will be provided.

 

Does Medicare have the ability to take action against a plaintiff's attorney if the attorney gets a reduction for procurement costs then gives all or a portion of the reduction to the plaintiff?

 

So long as Medicare’s demand is satisfied, it would have no further claim against any of the parties to the settlement. What an attorney decided to do with or about his fee I assume is his decision unless state law regarding attorney conduct would have provisions about such matters. 

 

What are attorneys 3 obligations to Medicare?

 

1. Repay any Medicare payments made for past treatment related to the claim
2. Provide adequate funds to pay for future treatment related to the claim that is otherwise covered by Medicare
3. Report all insurance settlements or open workers’ compensation claims with an on-going responsibility for medicals or Medicare beneficiaries to CMS  (technically that one only falls on the insurer but defense counsel would be remiss not to remind its client of the obligation)

 

Would Medicare stop future benefits after being paid from a third party settlement?

 

Medicare is supposed to exclude related benefits post-settlement but that is currently contingent upon MSPRC knowledge of the settlement and enforcement efforts. If we can talk in terms of 6 months from now, Medicare will be on notice of all settlements and have the information in their “common working file” to know to deny payments for treatment of the related injury/illness. So under the MSP, Medicare should not provide benefits but it is impossible to know what the reality in practice will be. My concern would be that Medicare would mistakenly make payment, figure it out, and then seek repayment from the deepest pockets available in receipt of funds from the settlement, possibly leaving no settlement ever entirely final.

 

 

MEDVAL  1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

Post-Settlement Administration

Pharmacy Benefit Management

        

Here is an interesting little tidbit floating around the blogosphere from Attorney Andy Hook. This sounds like a plausible response by a CMS employee but one that contradicts the carefully crafted non-statements CMS has become so fond of with respect to liability settlements and the need for Medicare Set-Aside Arrangements.

 Take this piece of information for what it's worth.

October 16, 2009

CMS on MSA's

 

On March 19, 2009, a member of the Special Needs Alliance, Thomas D. Begley Jr., wrote to the CMS General Counsel for Region 3, Philadelphia, asking three questions:

 

1. Does CMS require a Medicare Set-Aside Arrangement (MSA) in third party liability cases, if Plaintiff is receiving Medicare or expected to receive Medicare in 30 months?
2. Will CMS review a calculation for an MSA in a third party liability case, if it is submitted similar to the procedure currently being employed in worker’s comp cases?
3. If the answer to his question as to whether an MSA is required in a third party liability case is “yes,” then in the absence of guidance for third party liability cases, is a personal injury attorney safe in following the guidance that has been issued for worker’s compensation cases?

 

On September 2, 2009, Tom spoke with Sean Emberson, Health Insurance Specialist in the Philadelphia Office of CMS. Mr. Emberson was authorized by the office of General Counsel to respond verbally to Tom’s letter. His response is as follows:

 

1. CMS does require an MSA in third party liability cases, if Plaintiff is receiving Medicare or expected to receive Medicare in 30 months.
2. CMS will review a calculation for an MSA in a third party liability case if it is submitted similar to the procedure currently employed in worker’s comp cases.  The review process generally takes from 30 to 60 days.  It can be longer if one of the two specialists assigned to review these cases is assigned to travel or otherwise out of the office for any reason.  CMS will respond in writing after reviewing the submission.
3. The guidance provided in worker’s compensation cases should be followed for third party liability cases.

 

Tom asked Mr. Emberson about this letter sent by Tom Bosserman of the San Francisco Region to Sally Hart of the Center for Medicare Advocacy in 2002.  That letter indicated that it was CMS policy not to require a set-aside in a liability case absent a specific allocation in a settlement or judgment for future medicals. Mr. Emberson responded that letter was outdated.

 

The Philadelphia Region covers Delaware, District of Columbia, Maryland, Pennsylvania, Virginia and West Virginia for third party liability cases. For worker’s compensation cases the Region includes, Delaware, District of Columbia, Florida, Maryland, New Jersey, Pennsylvania, Tennessee, Virginia and West Virginia.  The state of residence of the Medicare beneficiary or potential controls rather than the state in which the lawsuit was brought.

 

Tom also contacted the New York Region which covers New York, Puerto Rico, Virginia Islands, and New Jersey for Medicare Set-Asides and liability cases. He spoke with Patricia Elston, Health Insurance Specialist.  Ms. Elston’s answers were essentially the same. CMS does require Medicare Set-Asides in third party liability cases.  She also indicated that the New York Region will review a Medicare Set-Aside proposal and issue a written response after reviewing the submission and that the guidance provided in worker’s compensation cases should be followed for third party liability cases.

Both Regions indicated that, due to manpower shortages, they were not aggressively enforcing the MSPA but that those who ignored the law did so at their peril.

 

Andrew Hook

Oast & Hook

www.oasthook.com

 

Posted by Andy Hook on October 16, 2009 

 

 

MEDVAL  1-888-SET-ASIDE

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Question from the NAMSAP listserv:

 

Can someone please tell me, or site reference guide, if CMS requires/recommends professional custodial administration for clients with accepted mild traumatic brain injury---thank you

 

Answer from a "professional" administrator

 

Professional Administration is required if the injured worker has been declared incompetent by the court.

Otherwise, it is highly recommended on brain injury cases.

 

That answer is both wrong and could have the appearance of being just a little self-serving.

 

Professional administration is never "required" on any case, liability, workers' compensation or otherwise. All that is required is contained in the law. However, if a client wishes to adhere to CMS' published memorandum, here is what CMS says on the matter as it applies to workers' compensation.

 

From Q2/A2 of the 10-15-04 memo:

 

Q2. Self-administration of a WC Medicare Set-aside Arrangement -- If an individual has a designated representative payee for Social Security purposes pursuant to 20 C.F.R. 404.2010 and 404.2015 (e.g., because the individual is legally incompetent, mentally incapable of managing benefit payments, etc.), has an appointed guardian/conservator, or has otherwise been declared incompetent by a court, may that individual self-administer his/her Medicare set-aside arrangement?

A2. WC Medicare Set-aside Arrangements must be administered by a competent administrator (emphasis added) (the representative payee, a professional administrator, etc.). Moreover, when an individual does (in fact) have a designated representative payee, appointed guardian/conservator, or has otherwise been declared incompetent by a court; the settling parties must include that information in their Medicare set-aside arrangement proposal to CMS.

 

There are a wide range of competent administrators other than firms that offer professional MSA administration. From a practical perspective, I think firms that offer professional administration are best suited to handle such cases but because of the associated expense, I would hesitate to recommend it to clients under the theory it is required by CMS.

 

 

MEDVAL 1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

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CMS updated the insurance industry on their MMSEA Section 111 reporting requirement today. MEDVAL was in attendance and has provided a summary of the call for your convenience:

 

On this date, CMS' Frank Johnson held a teleconference regarding a secure internet web-based portal for WCMSA submissions. The teleconference was limited to an overview of CMS' plans for the web-based portal and a short question and answer session. Mr. Johnson indicated the estimated implementation date is early to mid-2011.

 

Some of the anticipated benefits Mr. Johnson outlined include making it easier for workers' compensation submitters to submit WCMSAs and accompanying documentation, streamlining the process, making it easier to get documentation/information to and from CMS, allowing for quicker creation of submissions, shortening response time to development requests, and getting real time feedback on pending cases. Mr. Johnson went on to say that they envision this portal having the capability to facilitate tracking of the WCMSA review online rather than calling in to the WC review center or CMS regional office. They would like to implement limited reporting capabilities, allowing submitters to export data to Excel, as well as sending email notifications rather than mailing acknowledgement, development and approval letters.

 

At this time, the anticipated equipment needed is access to the internet, a web browser and a scanner. Mr. Johnson indicated that there will be a registration process and that each submitter will be issued a user ID and password. At this time, only the submitter will have access to the information but it is possible for other parties to the case (attorneys, claimants, adjusters) to have limited access should they register themselves. CMS will offer a user guide as well as computer-based training and tech support. Future postings/teleconferences will be forthcoming from CMS during this process. It is also anticipated that during the testing phase, CMS will solicit volunteers from current submitters to test the new portal.

 

During the question and answer session, the following were asked and answered:

• Will there be user fees?
  • No
• Once the portal is up, will it be a requirement to submit electronically?
  • No, CMS will be running two parallel systems: the new web-based portal and the system currently in place through the US Mail.
• If there is an approval with an error, such as a math error, will submitters be able to communicate that with the regional office online?
  • Yes
• Will submitters be able to submit liability MSAs?
  • No, this only covers WC MSAs.
• Will submitters be able to get information regarding conditional payments on this portal?
  • No, the MSPRC has its own process in place.
• Will there be a template when submitting an MSA?
  • Yes, there will be specific fields to enter and prompts to follow. It will be important to have the correct HICN or SSN to ensure the case is set up properly.

For questions about Medicare Set-Aside Arrangements or general questions, contact us at 888-SET-ASIDE.

 

MEDVAL 

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Sometimes, as we selfishly dwell on our own hardships, we forget about those that are really suffering, namely Harvard Law Students.

 

Debra Weiss of the ABA Journal chronicles their pain.

While I understand the need for difficult budgetary decisions, there is no set of economic circumstances that justify ending coffee service at 10:15am.

Studying the law is boring. And for those motivated enough to score a 178 on their LSAT and get to class before 1:00pm this administrative insult should not be taken lying down.

 

Although the Harvard endowment lost 30% last year and now stands at a paltry $26 billion dollars, the school has clearly taken meaningful, aggressive action to right its financial ship.

 

MEDVAL  1-888-SET-ASIDE

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