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CLASSIC LIST

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17/Nov/2022

On Tuesday, December 6, 2022, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar entitled, “Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation”. The full notice can be read below:

 


 

CMS will be hosting a Section 111 NGHP webinar. The format will be opening remarks by CMS, a presentation that will include NGHP reporting best practices and reminders followed by a question and answer session. For questions regarding Section 111 reporting, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110- 173SEC111-comments@cms.hhs.gov.

Date:          December 6, 2022
Time:          2:00 PM ET

Webinar Link:  https://cms.zoomgov.com/j/1604816351?pwd=QmlUVUl1MkU4Y3htY1J0M0tUN3hoUT09

Passcode:  001534

Or to connect via phone:

Conference Dial In:          1-833-568-8864
Conference Passcode:    160 481 6351

Due to the number of expected participants please log in at least 10 minutes prior to the start of the presentation.


 

Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.

 


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15/Nov/2022

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSAReference Guide (“Reference Guide”) Version 3.8 on November 14, 2022. This Reference Guide replaces Version 3.7 which was released on June 6, 2022. There are a few notable changes when comparing the two Reference Guides.
 

CMS’s Version 3.8 Reference Guide, Section 1.1 includes the following changes:

Changes in This Version of the Guide Version 3.8 of this guide includes the following changes: Clarification has been provided regarding re-review requests when errors exist in the submission documentation, as well as re-review limitations (Sections 16.1 and 16.2). Note: These re-review changes are only available for approvals from September 1, 2022 forward.

To download the new WCMSA Reference Guide v3.8 Click Here.

For your convenience, we have included the entirety of Section 16.1 and 16.2, so you will have the most up to date information regarding the process of re-review:

16.1 Re-Review

When CMS does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is no formal appeals process. However, there are several other options available. First, the claimant may provide the WCRC with additional documentation in order to justify the original proposal amount. If the additional information does not convince the WCRC to change the originally submitted WCMSA amount and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement. Medicare will exclude its payments for the medical expenses related to the injury or illness until WC settlement funds expended for services otherwise reimbursable by Medicare use up the entire settlement. Thereafter, when Medicare denies a particular beneficiary’s claim, the beneficiary may appeal that particular claim denial through Medicare’s regular administrative appeals process. Information on applicable appeal rights is provided at the time of each claim denial as part of the explanation of benefits.

 

A request for re-review may be submitted based one of the following:
  1. Mathematical Error: Where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred), or
  1. Missing Documentation: Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
    • Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
    • Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
    • Should no change be made upon response to a re-review request (i.e., no error was identified), additional requests to re-review the same error will not be entertained.
  1. Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual. Note: This submission option is only available for approvals from September 1, 2022 forward.
    • Examples include, but may not be limited to; medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

 

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.
Re-review shall be limited to no more than one request by type.
Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.

 

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

 


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On October 13, 2022, in a surprise move, CMS withdrew its Notice of Proposed Rulemaking (“NPRM”) pertaining to the protection of Medicare’s future interests in liability and other Non Group Health Plan (“NGHP”) settlements, judgments, awards, payments, or other arrangements (“Settlements”) without any official or unofficial comment.  Many people in the Medicare Secondary Payer Compliance industry felt that this NPRM, most recently announced in 2018 and continued for several years, was finally going to add CMS’s clarifying “take” on how it would suggest settling parties reasonably consider and protect Medicare’s future interests in liability Settlements and that CMS would issue regulations or guidance specific to Liability Medicare Set-Asides (“LMSAs”).

 

The most recent 2018 iteration of the NPRM was designed to address protection of Medicare’s future interests in any NGHP Settlement, including removing what it considered obsolete regulations.  For the past several years, stakeholders in the MSP compliance community have been waiting and speculating how such regulations could be devised to account for all the convoluted factors that exist in liability claims while adding clarity to steps CMS might suggest to be taken to protect Medicare’s interests in liability settlements.

 

Earlier in 2022, there had been a stakeholder meeting as well as a letter from the MARC coalition urging CMS to not move forward with the NPRM.  It seems that the MSP compliance stakeholder community once again rallied and provided enough reason to give CMS pause.  Some have called into question whether the MSP as enacted, gives CMS authority to issue regulations regarding liability futures, and some court decisions discussing liability MSAs and the need for an exhaustion of administrative remedies prior to a court of competent jurisdiction being able to review a LMSA proposal, may have also contributed to CMS’s decision to not move forward with this NPRM at this time.

 

The argument follows if federal courts have determined it is premature to review proposed LMSAs due to the failure of a party to exhaust their administrative remedies with CMS, then how could CMS insert its own administrative review process via guidance or regulation, unless the MSP were amended to provide for that authority.  Examples of court cases discussing these issues, include Silva v. Burwell, 2017 WL 5891753 (D. N.M. 2017); Sipler v. Trans Am Trucking, Inc., 881 F.Supp. 2d 635 (D. N.J. 2012); Bruton v. Carnival Corporation, 2012 WL 1627729 (S.D. Fla. 2012); Abate v. Wal-Mart Stores East, L.P., 2020 WL 7027481 (W.D. Pa. November 30, 2020); and Stillwell v. State Farm, et. al., 2021 WL 4427081 (M.D. Fla., September 27, 2021).

 

TAKE AWAYS:

  • The MSP still forbids Medicare from making payment when a primary plan is in place meaning if there is a Settlement from a NGHP plan including from a liability carrier or self-insured defendant, Medicare has a statutory lien right under the MSP to recover its conditional payments minus procurement costs and can charge high interest and potentially even double damages for non-compliance.
  • If a current Medicare beneficiary settles a liability case, they should be informed about the MSP and a plan for future care should be set in place.  The federal law is clear that conditional payments could arise prior to or after a settlement, so a risk tolerance cost benefit analysis should be performed between attorney and plaintiff as to the best steps to ensure Medicare is not prematurely billed.
  • Medicare has the right under the MSP to deny payment for injury related future Medicare covered medicals (items, services, and expenses, including Prescription Drug Expenses).  Will it?  We have seen times when it has flagged liability cases even while a liability claim or portion of a liability claim is pending (often because it believes the matter was settled but it was only settled with one of several defendants/carriers).  While CMS does not seem to regularly do this, the goal for an attorney representing an injured plaintiff is to provide a settling plaintiff with enough information to make an informed decision regarding what is the best course of action for them and to document what decision was made after such informed consent was provided.
  • Only two federal circuits (3rd and 11th) have held Medicare Part C – Medicare Advantage Plans (MAPs) to have identical recovery rights as traditional Medicare under the MSP.  However, those MAPs still have contractual subrogation rights, and attorneys representing Defendants, as well as attorneys representing their plaintiff clients, should evaluate whether any MAP plan or Medicare Part D – Prescription Drug Plan (PDP) have a subrogation/lien interest to be reimbursed for pre-settlement payments that were compensated by the Settlement.
  • Each attorney should provide their clients with enough information to help them assess their risks and to determine if denial of injury related future medicals or the potential for recovery of future conditional payments by Medicare is a risk they are willing to take.  There are a wide range of products being offered to address MSP exposure and to protect Medicare’s interests in liability settlements based on the varying risk tolerance levels of your client.  Count on Medivest to help you spot these intricacies so you can deliver prudent advice to your clients.

 

As background, the Medicare Secondary Payer Statute, found at 42 U.S.C. Section 1395y(b)(2), or most commonly known as the MSP, is the federal law enacted in 1980 that amended the Social Security Act and its Medicare specific amendments to make health plans other than Workers’ Compensation to be primary to Medicare.  Workers’ Compensation plans were primary to Medicare from Medicare’s enactment into law in 1965.  The MSP was Congress’ mandate to Medicare and The Centers for Medicare & Medicaid Services (“CMS”), the subagency that administers Medicare, forbidding Medicare from making payments when a primary plan was in place to promptly make payment.  The primary plans are liability including self-insureds (and automobility BI), No Fault, and Worker’s Compensation and are known as the Non Group Health Plans (NGHP) to be distinguished from Group Health plans that offer health care insurance.  While No Fault claims and Workers’ Compensation claims are typically paid immediately upon a claim being filed and accepted for Ongoing Responsibility for Medicals (“ORM”), liability carriers rarely accept responsibility to make payments early on in the life of a liability case.  Liability carriers may choose to offer a settlement but almost never accepts liability.

 

Because the regulations under the MSP define prompt payment as within 120 days, the MSP also allows Medicare to make payments for medical services when a Medicare beneficiary will be compensated by a defendant in a liability case or their/its primary plan carrier under the condition that Medicare be able to recover those conditional payments it made that were claim related and compensated by a settlement, judgment, award, or other arrangement (collectively, “Settlement”).  The MSP makes the primary plan Defendant, and any person or entity who receives a part of the Settlement proceeds, jointly and severally liable for repayment of conditional payments.  The law also allows for interest and potentially double damages against liable people and entities that fail to make payment promptly.

 

The payment by any NGHP plan is what triggers the MSP’s recovery rights under the law regardless of whether liability is accepted or not.  The protection of exposure to the MSP’s recovery rights is also commonly referred to as protecting Medicare’s past and future interests in a Settlement.  Protecting Medicare’s past interests in a settlement includes providing notification of a claim and checking with CMS to determine whether it is claiming any payments it has made from the date of an injury up to the date of settlement are conditional payments to be reimbursed.  Plaintiff attorneys typically provide this type of notification or hire third parties to confirm whether there are any conditional payments and then report settlement details to obtain a discount from the conditional payment amount and obtain a demand from CMS reflecting a deduction for pro-rated fees and expenses allowed under the regulations to the MSP.

 

The regulations to the MSP include some regulations that are generally applicable to any of the NGHP plans and some that are specific to Workers’ Compensation claims and Settlements.  CMS has never promulgated regulations that are specific to liability claims or No Fault claims and Settlements.  CMS has also issued guidance regarding the protection of Medicare’s future interests in Workers’ Compensation claims and Settlements via its Workers’ Compensation Medicare Set-Aside Arrangement (“WCMSA”) Reference Guide, now in version 3.7 issued June 6, 2022.

 

In 2012, CMS issued a Notice of Proposed Rulemaking regarding the protection of Medicare’s future interests in settlements intended to extend from the already regulated area of Workers’ Compensation (“WC”) Settlements to the other NGHP areas and even solicited comments from the MSP stakeholder community.  After many entities pointed out the extreme differences between liability claims and WC claims such as issues of comparative or contributory negligence, the fact that liability claims often contain awards for Pain and Suffering, Loss of Enjoyment of Life, Loss of Consortium for married plaintiffs, etc., CMS ultimately withdrew that NPRM in 2014.

 


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19/Oct/2022

During the settlement process, a personal injury attorney needs to consider what government/public benefits their client is enrolled in and what they may be eligible for in the future. Several questions need to be asked. Have you considered Medicare’s interest in the settlement?  How will the settlement proceeds be handled?  Will a lump sum payment disqualify them from their government benefits? These questions need to be addressed because a client’s settlement could have long-lasting financial implications.
When it comes to settling a case with public benefits there are many nuances to consider. Hiring a team of experts such as an Elder and Special Needs Law Attorney, a Structure Settlement Broker, a Medicare Set-Aside (MSA) Allocator, and/or a Trust Advisor can assist you in protecting your client’s benefits and preserving the settlement proceeds.

 

Getting Familiar With Public Benefits

Public benefits can either be federal or state-run programs.  If the benefits program is run by the state, each state has its own set of criteria for eligibility.  Needs-based public benefits are also known as asset means-tested public benefits.  Asset means-tested means that eligibility is based on an individual’s income level and assets.  To learn more about all the different types of government benefits Gov/Benefits.
Government benefits are categorized into two types which are Needs-Based Benefits and Entitlement Benefits.
  1. Needs-Based Benefits – Also referred to as “means-tests,” these are based on an individual’s income and/or assets
  2. Non-Needs Based Benefits Aka Entitlements Based – These are determined by what an individual has contributed or paid into a given benefits system
 

Common Government Benefits

Below is a list and summary of the most frequently used government benefit programs. However, this is not a complete list, and a full investigation of a client’s use of government benefits should be conducted before the settlement process begins.

Medicare

Government national health insurance program in the United States, begun in 1965 under the Social Security Administration and now administered by the Centers for Medicare and Medicaid Services. It is intended for people who are 65 or older,  certain younger people with disabilities, and people with end-stage renal disease.

Social Security Disability (SSDI)

Payroll tax-funded federal insurance program of the United States government. It is managed by the Social Security Administration and designed to provide monthly benefits to people who have a medically determinable disability that restricts their ability to be employed.

Social Security Income (SSI)

Means-tested program that provide cash payments to disabled children, disabled adults, and individuals aged 65 or older who are citizens or nationals of the United States.

Medicaid

Health coverage programs operated by states, within broad federal guidelines. Although the federal government pays a portion of the costs, Medicaid is administered and operated by states, and each state’s program is different and based on the needs and goals of the individual state.

Medicaid Adult / Disability-Based

  • Permanently disabled & unable to work
  • Only Income Test applies in California
  • Income & Asset Test applies
  • Supplemental Security Income (SSI) recipients
  • In-Home Support Services (IHSS) recipients
  • Home & community-based waivers participants
  • Long-Term Care Facility residents

Medicaid Adult / Non-Disability Based

  • Able to work & income is below the Federal Poverty Level (FPL)
  • MAGI Medicaid on household income
  • Assets are not counted toward
  • Pregnant women

Medicaid – Children Health Insurance Program (CHIP)

This program is administered by the United States Department of health and Human Services that provides matching funds to states for health insurance to families with children.

Section 8 – Housing Assistance

The housing choice voucher program aids very low-income families to afford decent, safe, and sanitary housing. Housing can include single-family homes, townhouses and apartments and is not limited to units located in subsidized housing projects. Housing choice vouchers are administered locally by Public Housing Agencies (PHAs).

Veterans Administration (VA)

The United States Department of Veterans Affairs of the federal government providing life-long healthcare services to eligible military veterans at VA medical centers and outpatient clinics.

Our Complimentary Reference Guide for Government Benefit Protection

For further information on how to protect your clients’ government benefits after a settlement, Medivest would like to provide the following data chart. It summarizes a variety of public benefit programs and the best course of action you can take to ensure their benefits are protected.  Click here to download.

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18/Oct/2022

As an attorney, you may need to know how to negotiate a settlement for a client with a medical lien. Those with personal injury claims after accidents often seek legal representation to negotiate with insurance companies for compensation to cover medical costs associated with the accident.

If you’re lucky, the lien negotiation process may involve little more than presenting a demand letter and supporting documents to the insurance company and making a few calls to an insurance adjuster. However, getting the best settlement for your client is more likely to involve lengthy negotiations with the adjuster. With the tips below, we can help you negotiate the best possible settlement for your clients with medical liens.

Tips for Getting the Best Settlement When Negotiating Medical Liens

Follow the tips below to develop a settlement negotiation strategy and get your client the best possible settlement.

1. Develop a Litigation Strategy

Though it can be tempting to view each personal injury case like any other case with a familiar pattern, you should develop a unique litigation strategy for each claim rather than relying on a universal approach. At the beginning of litigation and throughout the process, speak with your client about their objectives.

Some clients want the case to end as quickly and inexpensively as possible, while others may want to pursue the best possible settlement as long as it takes. A client’s objectives could change during the litigation process, which is why it is essential to maintain candid communications throughout.

2. Identify an Acceptable Settlement Amount Range

When you compile your demand letter, you should determine what you expect for a settlement amount for your client’s claim. You can estimate the value of a claim based on the total medical expenses incurred due to the injury and income lost due to the injury. Your client’s pain and suffering may also factor in.

Determine the minimum amount you will accept for a settlement before you discuss your demand with an adjuster. Though you won’t reveal this amount to the adjuster, it’s helpful to keep this number in mind during negotiations to ensure you stay on track.

Keep in mind that you can be flexible, of course. If the adjuster identifies facts that weaken your claim, you may want to lower the minimum figure you will accept. On the other hand, if an adjust begins with an offer near your minimum, consider increasing your acceptable minimum amount.

3. Collect the Most Important Information

Each side should have all the information needed to agree to a reasonable settlement. You can ensure settlement negotiations are successful by identifying and collecting the information that will make the greatest difference for your client. If the other side wants discoverable information, produce these details before settlement negotiations. This approach is often in your client’s best interest, as withholding important information may not actually be favorable to your side.

you can ensure settlement negotiations are successful by identifying and collecting the information that will make the greatest difference

4. Sit on the First Offer

When it comes to successfully negotiating personal injury settlements, the first offer is just the start. An insurance adjuster’s first offer may be incredibly low to determine how to proceed. Even if the first offer is more reasonable and not simply a negotiating tactic, it may still be too low to accept. The purpose of negotiating is to see whether you can get more compensation for your client.

5. Make a Counteroffer

If you find the offer reasonable, make a counteroffer that falls just below the amount in your demand letter. This will demonstrate to the insurance adjuster that you are reasonable and willing to compromise with them. With some bargaining, you may be able to quickly come to a settlement amount that you both consider fair and reasonable.

6. Determine the Best Context for Discussing a Settlement

Settlement negotiations can occur in several different contexts. For example, if you have a good rapport with another lawyer, then direct negotiations may be effective, especially when money is the primary or sole topic of negotiation. If there are several variables affecting the settlement or your client wants more control in the negotiations, this may not be the best option.

If your clients or the other party desires a day in court, a settlement conference may be the best context for discussing a settlement. Keep in mind that judges are available only for a limited amount of time, and some judges don’t have mediation expertise or want to conduct settlement discussions. The occurrence of the settlement conference and whether a settlement was agreed upon will also be information available to the public.

Private mediation is another option and may be ideal if you want to keep the negotiations confidential. You and the other parties involved can agree on a mediator and select a convenient location and time to meet for negotiations. Unlike a judge, your mediator will be available as long as it takes to reach a settlement.

7. Confirm the Settlement Terms in Writing

Once you finally agree to a settlement with the insurance adjuster, confirm the settlement’s terms by putting them in writing. You will detail the terms of the settlement in a letter for the adjuster. You can keep the letter brief and include the settlement amount, the damages or injuries covered by the settlement and the specific date you expect to get the settlement documents from the insurer.

Why You Should Work With Lien Resolution Professionals

Lien resolution professionals like those at Medivest investigate subrogation claims for clients to ensure validity and identify the legitimate charges. There are several advantages to working with lien resolution professionals. Some of the benefits of utilizing our medical lien resolution services at Medivest include:

  • Expertise: At Medivest, our team of lien resolution professionals has specialized experience and knowledge to leverage while working to resolve claims.
  • Reductions: We have the negotiation skills and extensive knowledge needed to request available reductions.
  • Efficiency: We centralize tasks to ensure operations and reporting are streamlined and more efficient.
  • Lower potential liability: If you work with lien resolution professionals, you are less likely to deal with claims from insurance companies for repayment.
  • Improved client experience: Your clients will be less likely to be called by subrogation companies that are seeking direct reimbursement when we help you discover and resolve eligible liens.
  • Effective expense and time management: In your state, you may be permitted to include services from Medivest as a case related cost, allowing you to return your focus to client service.

The lien resolution professionals at Medivest can help you negotiate with lienholders, meet your client’s needs and secure a larger net settlement for them.

contact Medivest today to learn more about medicare liens and settlements

Contact Medivest Today to Learn More About Medicare Liens and Settlements

At Medivest, we work with attorneys to manage Medicare settlements and funds. Before contacting Medicare, we make sure an injured person receives coverage from other sources, such as workers’ compensation and insurance. We can help you comply with the Medicare Secondary Payer Act, as we are a leading provider of MSP compliance solutions.

If you are overworked and dealing with complex liens, partner with Medivest. We provide an array of settlement services, and we’ve celebrated big wins for lien resolution. Contact us at Medivest today to learn more about negotiating Medicare liens.

 


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22/Sep/2022

In liability or workers’ compensation settlements, all parties need to consider how the agreement affects Medicare. Typically, this assessment comes in the form of a Medicare Set-Aside (MSA) proposal or report. The MSA report is a detailed outline of anticipated expenses for the injured party. It can protect you from several adverse events and provide clear guidance throughout the course of the settlement.

Still, Medicare requirements can be complex, so you may have some questions about how MSA works and what you need to do to set it up properly. To help, we’ve put together a Medicare Set-Aside FAQ with some of the top questions.

the MSA is a portion of the settlement dedicated to future injury-related medical expenses that would otherwise be covered and reimbursed by Medicare

What Is Medicare Set-Aside?

The Medicare Secondary Payer (MSP) statute stipulates that Medicare doesn’t need to pay for an injured person’s medical expenses when another entity — such as a United States workers’ compensation law or plan — pays or can be reasonably expected to pay for the care.

Essentially, when future medical expenses are involved, the parties must try to protect Medicare’s interests and cannot shift the costs to the Centers for Medicare and Medicaid Services (CMS). To do so, settlement parties can create a Medicare Set-Aside. The MSA is a portion of the settlement dedicated to future injury-related medical expenses that would otherwise be covered and reimbursed by Medicare.

You’ll see both Workers’ Compensation Medicare Set-Asides (WCMSAs) and Liability Medicare Set-Asides (LMSA). They work similarly and cover elements like treatments, prescription drugs and administration costs. The details of the MSA account are outlined in a MSA report or proposal.

Based on many factors, such as the expected treatment and the beneficiary’s life expectancy, this report identifies the predicted costs for their medical expenses. It also provides details about the account’s usage, including whether funds are given in a lump sum or through structured annuity and information on drug frequency, dosage and predicted costs.

The funds for MSA go into a certain account and the administrator must provide detailed information about how the expenses are paid out. For instance, they may submit records of the beneficiary’s receipts for medical transactions. This step helps ensure Medicare will pay for future expenses if the funds run out.

Are Medicare Set-Asides Required?

No, MSAs are not required. However, not creating one when Medicare is likely to be involved can cause problems. Without an approved MSA report, CMS could refuse to pay for future medical expenses until the full settlement is exhausted. It could also enact priority right of recovery and take payments back from entities that received any portion of third-party payments.

While not required, MSA creates a detailed document that shows Medicare that you considered their interests during the settlement. If you submit it to CMS and receive approval, you also have documentation that CMS validated the amount and accuracy of the report.

When Is a Medicare Set-Aside Required?

Again, a MSA is not required, but CMS suggests it in the following situations:

  • When the injured individual is receiving Social Security Disability or Retirement.
  • When the injured individual is age-eligible or within 30 months of becoming a Medicare beneficiary.
  • When the injured individual is eligible for or already receiving Medicare.

CMS will review MSA proposals if:

  • The claimant is a Medicare beneficiary and the settlement totals more than $25,000.
  • The claimant is reasonably expected to enroll in Medicare within 30 months of the settlement date and the anticipated settlement amount — for future medical expenses and disability or lost wages over the life or duration of the agreement — is more than $250,000.

How Do You Calculate Medicare Set-Asides?

Calculating MSA amounts is done through a MSA report. It includes all injury-related services or items that Medicare would otherwise cover. While MSAs are generated on a case-by-case basis, some of the factors involved include:

  • Workers’ compensation fee schedules.
  • Usual and customary charges and actual charges, according to drug payment histories and claims payments.
  • Medical records and bills.
  • Facility and provider fees.
  • The individual’s age, location and other relevant details.

Can You Avoid a Medicare Set-Aside?

You can bypass the MSA, but remember, if the settlement involves future medical expenses and potential Medicare benefits, we recommend against it. Federal law under MSP prevents any attempts to shift costs to Medicare. Without the MSA, you haven’t shown that you performed due diligence and may be at risk for negative effects, like refusal to pay and right of recovery from CMS.

If CMS finds the MSA account was underfunded, it can deny payment for case-related Medicare-covered expenses up to the beneficiary’s net settlement amount, instead of just the MSA amount. Since skipping the MSA can put the injured party’s benefits at risk, the claimant’s attorneys may request one.

Can I Spend My Medicare Set-Aside Funds?

The funds from a MSA account can only be used to pay for items and services outlined in the settlement. The expenses must be related to the injury and would otherwise be covered by Medicare. These spending rules apply even if the injured person isn’t currently a Medicare beneficiary.

If funds are used in any other capacity, Medicare can deny injury-related claims until the account administrator proves that the MSA funds have been exhausted under appropriate use cases. They must show that qualifying expenses equal the entire amount of the WCMSA or LMSA.

What Happens to Unused Medicare Set-Aside Funds?

At the end of the year, any leftover funds carry over to the next year. These funds continue to roll over each year until they’re used up. Upon the death of the injured person, funds are first reimbursed to CMS for any covered outstanding medical charges. Since providers have up to 12 months from the date a service is rendered, WCMSA or LMSA accounts may be left open for a year.

After that timeframe, the unused funds can be disbursed to the injured worker’s beneficiaries according to state law, assuming other Medicare claims are satisfied.

let Medivest handle Medicare Set-Asides for your clients

Let Medivest Handle Medicare Set-Asides for Your Clients

MSAs can get complex, and CMS recommends working with a professional administrator. Medivest has been helping clients for over 25 years, simplifying MSP compliance and MSA reports.

Our MSA Allocation Reports are created by highly trained nurses, reviewed by certified coders and managed by certified MSP case managers. Although every case is different, Medivest can usually create an analysis within 10 business days. Other services involved in MSA Allocation Reports include verifying Social Security and Medicare eligibility, requesting and verifying conditional payment and generating a non-quality report.

At Medivest, we strive to deliver the highest quality standards with comprehensive and attentive service. We’ll help you prepare for the future by protecting Medicare’s interests and providing greater visibility to the parties involved in the settlement. Reach out to us today to request your MSA report or ask an expert about our services.

 


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07/Sep/2022

We’ve all heard how important it is to establish a plan for how our affairs are to be handled after we die. It also comes as no surprise that this plan is best established before we die. Though I have not died yet, all evidence seems to indicate that I will have an exceedingly difficult time addressing these details once I’m dead. Despite this evidence, it is estimated that around half of all Americans have no estate planning whatsoever. So, it should not come as a surprise that those with a Medicare Set-Aside account likewise have no clear plan established for what happens to any funds that may remain once they die. Not having a clear plan can create confusion and aggravation for those responsible to sort out or benefit from the settling of an estate. Addressing these questions at the outset can avoid a lot of trouble. So, what are the main considerations?

Reversionary Interest

Sometimes a settlement will establish a reversionary interest for any remaining Medicare-Set Aside funds. For instance, it may have been agreed that a percentage or all unused funds at the time of the claimant/applicant’s death are to be returned to the funding party. If true, this is a detail that the executor of the estate will want to know. Reversionary Interest arrangements are becoming more popular as a tool in settlements, as more and more Medicare Set-Asides are professionally administered with better cost controls and preservation.

Medicare Set-Asides held within Trusts may be Subject to Specific Rules

If the Medicare Set-Aside was placed in a Special Needs Trust (SNT) to protect access to means tested benefits like Medicaid, or was placed in some other type of trust, there may be a special arrangement already in place that governs what happens to the Medicare Set-Aside funds once the trust beneficiary passes away. If unsure, consult the trust officer as to whether they require any specific guidance, or if the final destiny of the MSA funds have been already decided by agreement or statute.

Tell the Professional Administrator Your Intentions

One advantage of professional administration is that it is more likely that some funds will survive the claimant/applicant due to the strategies a professional administrator leverages. Another advantage is that a professional administrator will disburse all funds it administers directly to the beneficiary designated by the claimant/applicant. Most professional administrators will request that the claimant/applicant designate their beneficiary in writing at the time the account is established. Still, it is not rare for a professional administrator to never receive the claimant/applicant’s written intent. This sometimes causes issues when the final MSA balance is disbursed to the claimant/applicant’s estate.
Also, sometimes life situations will change the intended beneficiary of the Medicare Set-Aside funds. If this changes, it is vitally important to record that change in writing with the professional administrator, to ensure that the claimant/applicant’s wishes are followed. Remember, the professional administrator can only follow the most recent guidance provided by the claimant/applicant.

Medicare’s Interest Must Be Considered

Family members and/or the executor of a claimant/applicant’s estate are typically motivated to settle arrangements as quickly as possible. However, it is important to remember that the Medicare Set-Aside was established to pay for Medicare allowable and injury-related expenses post settlement. Medical providers have a filing window in which to bill for medical services rendered or medications and supplies dispensed or sold. Often, allowable medical claims are received within the first 12 months following a claimant’s death, and the Centers for Medicare & Medicaid Services (CMS) expects the Medicare Set-Aside to pay as primary to Medicare for those claims, even if those claims are received after the claimant/applicant’s death. A best practice is to reserve the MSA funds for a period of twelve months (or until it is confirmed that final billing has taken place) to pay for allowable expenses before disbursing the MSA funds to the designated beneficiary(ies).

Conclusion

Medicare Set-Aside funds are a special type of asset that must be treated differently. They’re intended to protect a claimant/applicant’s access to Medicare benefits, as well as protect the Medicare Trust Funds from unlawfully paying when other funds are primary. But, like other assets, it’s important to declare and/or confirm where these funds are to go once the claimant/applicant passes away to avoid confusion and/or dispute over where those funds eventually go.
You can count on Medivest to help guide you through the complexities of Medicare Set-Aside arrangements. If you have questions about preparing or administering a MSA or you need consultation on any of our settlement services, call us at 877.725.2467 or reach out to us online here.

 


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15/Aug/2022

Consider this scenario: you are a personal injury attorney, and you get a call from a new client who is 63 years old and is interested in settling her automobile accident case.  Per the Medicare Secondary Payer statute and as part of the case workup, you need to make sure you are not shifting the burden to Medicare.

What is the Medicare Secondary Payer Statute?

The MSP statute was passed by Congress in 1980 in order to protect the financial integrity of the Medicare Trust Fund. Per this statute/law, Medicare is a secondary payer for workers’ compensation, no-fault insurance, liability insurance, self-insured plans, and employer group health plan insurance. According to the MSP regulations, these other sources of health care coverage are to be the primary payer, with Medicare being the secondary form of payment.

What is a Medicare Set-Aside (MSA) Proposal?

A MSA proposal is a detailed report indicating the anticipated Medicare allowable, Injury-related expenses for the remainder of the injured individual’s life expectancy.  It is a calculation that determines a dollar amount that should be “set aside”  as part of the settlement process to satisfy the Medicare Secondary Payer Statute (MSP) and to avoid shifting the burden to Medicare.

Guidance from Medicare for Liability Cases

The Centers for Medicare and Medicaid Services (CMS) published the WCMSA Reference Guide to help attorneys understand the process CMS uses for approving proposed Workers’ Compensation MSA (WCMSA) arrangements. The purpose of the WCMSA Reference Guide was to consolidate and supplant all the historical CMS memos into a single point of reference.
However, Workers’ Compensation and Liability settlements have several different nuances.  CMS has yet to release the long-awaited LMSA Reference Guide for liability settlements, despite announcing its intention to do so in 2018. Given the current lack of guidance concerning Liability MSAs from CMS, attorneys should look to the WCMSA Reference Guide for guidance when settling their liability cases.

Litmus Test –  Is a MSA Proposal Recommended?

In order to determine if a MSA allocation is recommended to cover Medicare’s interest in your settlement, there are several key items to review. Attorneys can do a quick MSA litmus test to determine whether or not a MSA is recommended.
  • Your client is currently Medicare-eligible
  • Your client is 62.5 years old and within 30 months of becoming eligible for Medicare benefits
  • Your client has either applied for Social Security Disability Insurance (SSDI) or has an open or pending application Will there be any money after medical liens have been resolved to fund a Medicare Set-Aside (MSA) account?

Medicare Eligibility

What is Medicare’s criteria for an individual to become Medicare eligible? Medicare is available for people aged 65 or older, younger people with disabilities, and people with End Stage Renal Disease (permanent kidney failure requiring dialysis or transplant).

Social Security Disability Insurance (SSDI)

An individual who has either applied or has reapplied for Social Security Disability Insurance can become Medicare eligible. Social Security Disability Insurance (SSDI) is a federal program that helps those who have become disabled from work.  An individual can apply for SSDI when:
  • A person is unable to engage in any “substantial gainful activity” due to an illness or disability and;
  • When a person is not able to return to work for 12 months or more and;
  • When a person has accumulated enough work credits in the last 10 years to qualify.

30 Months to Become Medicare Eligible

The reason why it takes 30 months to become Medicare eligible after the individual has either applied or reapplied for SSDI is that:
  • The individual needs to wait one month after the date of injury to apply for SSDI.
  • After the SSDI applicate date, there is a waiting period of 5 months to receive SSDI entitlement.
  • From the date of SSDI entitlement, Medicare has 24 months waiting period to become Medicare eligible.

Medicare Set-Aside (MSA) – Not Required by Law

Did you know that a Medicare Set-Aside is not required by law? You should know the risks if you choose not to have a MSA prepared, by understanding CMS’ interpretation regarding MSP compliance. In the event there was a failure to address Medicare’s interest in the settlement, Medicare may refuse to pay future medical expenses that are injury-related until the entire settlement is exhausted.

Best Practices

Our highly trained Medicare Expert Case Advisors can help you figure out if Medicare may have an interest in your settlement. We assist all settling parties to navigate the MSP complexities and provide you with cost-saving strategies for your settlement.
To receive our complimentary MSA Decision Tree, “When Is a MSA Allocation Recommended?”  click here.

 


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Over the past 17 years of working in the MSP compliance industry, I have noticed that few things can cause as much confusion when it comes to Medicare eligibility for children/kids. This blog is intended to clear up some of the confusion surrounding Medicare benefits for children to assist with settlement planning.
Medicare defines children/kids as anyone who is under the age of 22 and unmarried. Once a child/kid qualifies for Medicare benefits, they can keep Medicare coverage until the age of 26, as long as they are unmarried and continue to meet the qualifications.
Medicare coverage for kids is available but only in limited circumstances. For a child to be eligible for Medicare benefits, the following criteria must be met:
  1. The child must have End Stage Renal Disease (ESRD) and need regular dialysis treatments or have recently had a kidney transplant
  2. The child must have a parent or legal guardian who has earned at least six Social Security (SS) work credits in the last 3 years or is currently receiving Social Security Retirement benefits
Medicare defines a parent or legal guardian as either biological, adoptive, or stepparent. If the child is in the care of stepparents, the stepparents need to have been the child’s stepparents for at least one year for the child to be eligible for Medicare benefits if the other criteria have been met.
If the criteria have been met, the child will continue to receive Medicare benefits until 12 months after the last dialysis treatment or 3 years after a kidney transplant. Medicare coverage can restart if additional treatment is needed for ESRD.
If a child is between the ages of 20 and 22 and meets a few additional requirements, they may be eligible for Medicare benefits. Those additional requirements are:
  1. The individual has been receiving Social Security Disability Insurance (SSDI) for at least 24 months
  2. The disability began before the age of 18
  3. The disability prevents the individual from working and is expected to last longer than one year
It is uncommon for a child to be eligible for Medicare benefits, but it is possible. Suppose you are settling a case for a minor who currently has ESRD or is between the ages of 20 and 22 and has a qualifying disability that started prior to age 18. In that case, there is a possibility that they may currently be receiving Medicare benefits.
If you are settling a case for a child who currently receives Medicare benefits, it is important to properly address Medicare as part of the settlement. Considering Medicare’s interests in settlements is how an injured party does their part in complying with the Medicare Secondary Payer Statute (MSP). This includes addressing past medical/conditional payments (Medicare liens) as well as Future Medical/conditional payments because the MSP does not distinguish between pre and post-settlement conditional payments. Considering Medicare’s past and future interests will ensure that the burden for payment of future medical treatment isn’t being shifted to Medicare and that Medicare benefits for the individual will be protected.
If you have additional questions on how to address Medicare’s past or future interests in a case, please click here.

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U.S. Supreme Court Rules in Favor of Florida’s Medicaid Program Allowing Reimbursement of Paid Medicals from Settlement Funds (Including Funds Intended as Future Medicals)

We previously wrote about this case Will the U.S. Supreme Court Mandate Protection of Medicaid Futures? when the U.S. Supreme Court agreed to hear the issue.
The issue in Gallardo v. Marstiller was whether Florida’s state-based Medicaid program (Agency for Healthcare Administration or AHCA) could recover its injury related medical payments from the portion of a tort settlement from a third party that compensated for damages other than past medicals. The underlying liability case involved a Florida minor who suffered lifelong catastrophic injuries when she was a passenger in a motor vehicle that was hit by a pickup truck in 2008. The Supreme Court, in a 7-2 vote, upheld Florida Medicaid’s effort to recover its injury related paid medical claims from the portion of the settlement that compensated for past or future medical damages.
As the court opinion detailed, “Gallardo, through her parents, sued the truck’s owner and driver, as well as the Lee County School Board. She sought compensation for past medical expenses, future medical expenses, lost earnings, and other damages. That litigation resulted in a settlement for $800,000, with $35,367.52 expressly designated as compensation for past medical expenses. The settlement did not specifically allocate any amount for future medical expenses.” 
Many states such as Florida have a statutory formula setting forth the framework for when the state Medicaid agency shall reduce its reimbursement.  However, state law in almost all states allows some discretion to the state-based agency directors to allow for waivers or partial waiver of the amounts contemplated by the applicable statute(s), or instead often allow a Medicaid member to petition for exceptions to the statutory formula.
The opinion elaborated that the State of Florida’s “statutory framework entitled the State to $300,000—i.e., 37.5% of $800,000, the percentage that statute sets as presumptively representing the portion of the tort recovery that is for “past and future medical expenses,” absent clear and convincing rebuttal evidence.” (citing Florida Statutes §§409.910(11)(f )(1), (17)(b)). The opinion then explained that Gallardo had “challenged the presumptive allocation in an administrative proceeding.”
In Florida, that type of administrative challenge is pursued under a Chapter 120 Administrative Hearing under the Administrative Procedure Act before the Florida Division of Administrative Hearings (DOAH).  For example, a petitioner may request a declaratory statement which would be an opinion on the application of a particular regulatory statute, agency rule, or agency order to the petitioner’s individual situation. A declaratory statement is a final agency action and is subject to judicial review.  This is how the Gallardo decision began making its way through the court system.  In state court, the applicable state court determined that Florida’s Medicaid lien only applied to that portion of the settlement reserved for past medicals.  On appeal at the 11th Circuit, the Federal Circuit Court upheld Florida Medicaid’s position that its lien extended to any medical damages paid in a settlement including future medicals. The U.S. Supreme Court affirmed the 11th Circuit Court’s decision, holding that Florida’s Medicaid agency could obtain reimbursement of its paid medicals from any portion of a settlement that compensated for medicals including funds slated as future medicals.
The U.S. Supreme Court discussed why Medicaid agencies have an exception to the federal anti-lien law and have been mandated to collect from medical damages of settlements as opposed to the property of the injured party, as announced in the Court’s prior decisions of Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U. S. 268, 284 (2006) and Wos v. E.M.A., 568 U. S. 627, 633 (2013).  The Court explained the distinction in Wos focused on the ability of a state Medicaid agency to obtain its reimbursement from medical damages versus non-medical damages.
The Ahlborn and Wos decisions of the U.S. Supreme Court helped pave the way for what is commonly referred to as equitable distribution or equitable reimbursement based on a Made Whole theory.  In those decisions, if the parties provided evidence of the full value of the case based on damages apart from medical damages and could show that the case settled for an amount lower than the full value because the plaintiff was not Made Whole, that the reimbursement should come from medical compensation only, and implied that a request could be made to reduce the Medicaid recovery accordingly.  If a portion of the settlement was allocated to damages other than past medicals (such as other economic damages including past and/or future wage loss or future medicals, and/or non-economic damages including Pain and Suffering, Loss of Enjoyment of Life, or derivative claims such as Loss of Consortium), it would be argued that the respective Medicaid program would be limited to recovery from those damages allocated to past medicals and if factors like comparative negligence or difficulties of proof of liability existed, further reductions could be requested.
Interestingly, Judge Clarence Thomas, pointed out that the parties had not allocated the amount of the settlement designated as future medical expenses.
Briefs in the case were filed by or on behalf of the National Conference of State Legislatures, the National League of Cities, the U.S. Conference of Mayors, and the Government Finance Office, 14 state Medicaid agencies on the side of Florida Medicaid (UT, OH, AL, AR, GA, KS, LA, MT, NE, ND, OK, SC, SD, TX), as well as the American Justice Association, the Florida Justice Association, the American Academy of Physician Life Care Planners on the side of Gallardo.  At this time, it is unknown how far reaching this decision will be regarding the need for formal allocations of future injury related medicals for Medicaid cases in Florida or other states.

Take Aways and Food for Thought

As it pertains to resolving liens, is it more likely that state Medicaid agencies and their recovery agents will become more aggressive in pursuing their reimbursement/lien recoveries from any and all portions of settlements?
Shouldn’t a showing that a large part of the compensation from a third party liability settlement was intended to compensate for non-medical damages still be taken into consideration to determine whether an exception should be granted by a state Medicaid agency in pursuing its medical reimbursement/lien recovery?
If it is determined that Medicaid is entitled to at least some portion of the expected accident-related Medicaid futures, how might this affect how Medicare Set-Aside (MSA) allocation reports would be prepared and/or funded when beneficiaries are dual enrolled in both Medicare and Medicaid?
For settlements involving injured parties who are duel enrolled, with the complexity of administering funds set aside for protection of Medicare’s future interests heightened, wouldn’t professional administration of those MSA funds seem to be prudent?
Will this decision lead to a higher percentage of liability cases involving Medicaid members going to court for state court allocation determination of the various damages awarded in injury cases?
Will this decision lead to a higher percentage of plaintiff’s counsel petitioning for administrative hearings before the state equivalent of Florida’s Division of Administrative Hearings to resolve difficult and high value liens?
If Florida’s Medicaid agency will be allowed to be reimbursed from funds reserved for future medicals, could it someday request funds to be set aside from settlements to reimburse it for future medicals to be paid by Medicaid after the date of settlement (i.e. a Medicaid Set-Aside)?
Count on Medivest to help you navigate through the complexities of Medicaid liens and questions regarding reimbursement claims and plans for future care out of settlement proceeds.

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