the Medicare Secondary Payer Act Meeting Reporting Requirements, Satisfying Liens, and Structuring Set Asides in Settlements

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1 Presenting a live 90 minute webinar with interactive Q&A Workers' Compensation Claims and the Medicare Secondary Payer Act Meeting Reporting Requirements, Satisfying Liens, and Structuring Set Asides in Settlements THURSDAY, JANUARY 19, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: John Cattie, Head, Future Cost of Care Practice, Garretson Group, Charlotte, N.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 November 9, 2011 GRG Client Alert: CMS Issues 12/5/1980 Exposure Screening Exception Recently Medicare provided much needed guidance on when and how a December 5, 1980 policy exception to reimbursement and reporting under the Medicare Secondary Payer (MSP) statute is to be applied. This Client Advisory analyzes Medicare s most recent Alert and provides key takeaways to assist counsel for plaintiffs and defendants to ensure absolute MSP compliance when resolving their cases in 2011 and beyond. On September 30, 2011, the Centers for Medicare & Medicaid Services ( CMS ) issued guidance intended to assist parties to better define their Medicare Secondary Payer ( MSP ) obligations where settlements, judgments, awards, or other payments involve exposure, ingestion or implant/explantations. 1 CMS begins the Alert by noting that it continues to follow a policy to not assert reimbursement rights where the Date of Incident (DOI) occurred before December 5, 1980, the date by which Congress extended the MSP statute, to apply to liability settlements, judgments, awards, or other payments. Where a case involves: (1) continuous exposure to a hazardous substance; (2) continuous ingestion of a substance; or (3) a ruptured implant that allegedly led to toxic exposure, parties are to use the last date those conditions (exposure 2 / ingestion / implantation) existed to determine whether the December 5, 1980 policy exception applies. The Alert provides three separate instances where both recovery and reporting under Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 ( MMSEA ) must be considered. Both repayment and reporting must be considered where: 1. Exposure, ingestion, or the alleged effects of an implant on or after December 5, 1980 is claimed, released, or effectively released. A complaint alleging such exposure, ingestion, etc. meets this condition. 2. A condition of settlement, judgment, award, or other payment exists such that the claimant must have experienced a specified length of time for exposure, ingestion or implanted medical device exposure, and that time frame, when added to the DOI (first date of exposure, etc.) results in a date that is on or after December 5, A settlement requiring at least 10 years of exposure, ingestion, etc., where the date of incident is January 1, 1977 meets this condition. 1 The CMS Alert follows September 2010, working policy draft guidance and an April 2011, mass tort working group conference call to address these policy guidelines and ramifications. 2 Importantly, the Alert defines exposure in terms of the claimant s actual exposure, not to a defendant s legal exposure. Thus, the claims against the defendant are not as relevant as an exposure timeline to determine whether any exposure crosses what appears to those unfamiliar with the MSP to be something akin to the Maginot Line (of December 5, 1980). Cincinnati Office Charlotte Office Phone Fax Phone Fax Cooper Road Cincinnati, OH Rexford Road 4 th Floor Charlotte, NC 28211

3 3. The claimant s exposure to, or ingestion of a substance on or after December 5, 1980 is a required element of a settlement, judgment, or other payment. This rule also applies if the settlement, judgment, or other payment depends on an implant that was never removed or was removed on or after December 5, CMS also provided a three part test to apply this policy exception. 3 When ALL of the following criteria are met, Medicare will not assert a recovery claim against a liability insurance (including self insurance) settlement, judgment, award, or other payment; and Section 111 MMSEA reporting is not required All exposure or ingestion ended, or the implant was removed before December 5, 1980; and 2. Exposure, ingestion, or an implant on or after December 5, 1980 has not been claimed and/or specifically released; and, 3. There is either (a) no release for the exposure, ingestion, or an implant on or after December 5, 1980; or (b) where there is such a release, it is a broad general release (rather than a specific release), which effectively releases exposure or ingestion on or after December 5, The rule also applies if the broad general release involves an implant. To ensure this policy exception is better understood, CMS provides six different examples of situations to apply its December 5, 1980 policy to ensure proper implementation. Takeaways The September 30, 2011 Alert, released one day before Mandatory Insurer Reporting was to take effect for certain liability settlements, provides a clear set of rules to follow whereby parties involved in settling, paying a judgment or making some other payment to a Medicare enrolled beneficiary must address the resolution and / or reporting aspects of MSP compliance. The key to best understanding the Alert and employing its guidance as part of your formalized approach to addressing MSP issues is to recognize that the first set of criteria on the bottom of page 1 in the CMS Alert is to be read in the disjunctive; with each clause describing a separate situation where reporting is mandatory. Whereas, for the exception to be met, the conditions listed on the top of page 2 of the CMS Alert are to be read in the conjunctive such that all three of those conditions must be met in each settlement, judgment, award, or other payment involving a Medicare enrolled beneficiary. For example, although CMS does not define the term effectively released, when considering the implications of the three part test, if a settlement occurs where all exposure occurred or ingestion ended before December 5, 1980, and the second prong of the test has been met (no claim to post December 5, 1980 exposure), a broad general release that includes 3 Note that 42 C.F.R (a) is consistent with this policy exception to the extent that the regulation precludes CMS s recovery for any accident occurring before December 5, Note: Where multiple defendants are involved, the claimant must meet all of these criteria for each defendant as part of a settlement, judgment, award, or other payment (from that defendant) to be exempt from a potential MSP recovery claim and MMSEA Section 111 reporting. 2

4 all claims now and in the future would technically also include claims of post December 5, 1980 exposure by virtue of its broad terms, but lacking any specific claims, releases or evidence of the existence of such exposure, the broad general release effectively releases such exposure, but does not actually release it (as would be the case with a specific release as described in the Alert). Accordingly, the Alert distinguishes between actually releasing exposure, etc. which occurs on or after December 5, 1980, and including release language that releases the paying party from all claims, including potential post December 5, 1980 exposure, ingestion, or an implant that was not removed before the obligation trigger date of the MSP statute as applied to liability cases. Where there is no post December 5, 1980 exposure, there has been no claims made including such exposure, and there is a broad general release which has the effect of releasing all exposures, even those that are non existent, but nevertheless, technically released due to the broad language used, the Alert clarifies that such a case is neither reimbursable nor reportable under the MSP. Action Steps for the Parties Consistent with our prior MSP compliance Client Advisories, when faced with how best to use this Alert to ensure absolute MSP Compliance, the parties should consider each matter separately (case by case), properly documenting their files that they: 1. Validated all exposure, ingestion, etc. ended before December 5, Validated no post December 5, 1980 exposure was claimed / alleged, and / or that or no post December 5, 1980 employment years were used to qualify for payment in a settlement program or otherwise. 3. If (1) and (2) above are true, the parties should use a broad, general release. Do not use any specific release language that includes an exposure timeline that crosses the December 5, 1980 threshold because that exposure is nonexistent. 5 For attorneys who represent Medicare enrolled beneficiaries, this means ensuring that if there is no evidence of exposure, ingestion, or implantation/explanation on or after December 5, 1980, that any complaint filed not inadvertently include any such allegations. The parties should identify what information was pled in the original complaint, but also take into account amended complaints, as circumstance change and facts develop. 6 If after filing a complaint, evidence is adduced that includes such an incident timeline, then reimbursement will follow under the MSP statute. For attorneys who represent the parties making payments to Medicare enrolled beneficiaries and / or their attorneys, the key to compliance is to review your and your clients files to ensure that there exists no evidence that contradicts any statements made by counsel that the last date of incident (exposure, ingestion, implant / explant, etc.) occurs on or after December 5, The CMS has given the industry an important tool that is intended to help the parties cope with the intricacies involved in certain settlements and litigations, respecting the fact that CMS has no right of recovery where the last date of incident occurs before the date the MSP statute was extended to liability type settlements, judgments, awards, or other payments. Under the right circumstances, 5 CMS officials confirmed on the October 19, 2011 town hall conference that if post December 5, 1980 exposure is alleged anytime during the case, even if it is later proved that for was no post December 5, 1980 exposure, that the defense has a reporting obligation under Section 111 and the plaintiff has a responsibility to report. 6 CMS officials on the October 19, 2011 town hall conference also suggested a willingness to review the impact of amended complaints on this policy. 3

5 with the files properly documented, we now have a much better idea when and how MSP reimbursement and reporting issues need be addressed. Garretson Resolution Group is available to answer your questions about the provisions of this Alert. Please contact us if you would like us to review or help develop your internal processes and to provide training for all parties that are involved in your healthcare compliance processes. 4

6 October 21, 2011 GRG Client Alert: Medicare Offers New Fixed Percentage Program for Certain Liability Settlements Following its September 30, 2011 Alerts, earlier today the Centers for Medicare & Medicaid Services (CMS), issued an Alert on its website that introduces a streamlined 25% (gross) payment option to resolve Medicare s reimbursement rights. The option will be available for certain Medicare enrolled beneficiaries who settle, receive judgments for, or receive other payments related to liability cases beginning November 7, 2011 as follows: 1. The underlying injuries must be physical, trauma based (rather than exposure or ingestion based); 2. The total amount of a settlement, judgment or other payment does not exceed $5,000; 3. The option is elected within a specified time frame (to be provided on November 7, 2011 on Medicare s website); 4. Medicare has not issued a final demand letter or made any requests for reimbursement prior to the election being made; and 5. The beneficiary has not received, and does not expect to receive any further payments or judgments related to the trauma based incident. If all of the above conditions are met, a beneficiary will be able to resolve and satisfy Medicare's reimbursement claim by paying Medicare 25% of his/her total liability insurance settlement or other payment, rather than using the traditional recovery process. Advantages of the 25% Fixed Payment Option The primary advantages of the Fixed Percentage Option will be that in liability cases with $5,000 or less in payments made arising from physical trauma based injuries, settling parties will know the exact amount to repay Medicare, and will have a quicker path towards resolution. For example, in liability cases involving unrepresented claimants where the total amount of payments to be made are within this threshold, knowing the exact amount to pay Medicare will permit a more efficient settlement process. The parties will still have to verify Medicare enrollment, noting that the Medicare payment for a $5,000 settlement will be $1,250 exactly. But, the process of opening a tort recovery record, requesting conditional payments, auditing those payments, and then working for a final demand letter will no longer be necessary. Disadvantages of the 25% Fixed Payment Option Prior to electing, the Medicare enrolled beneficiary needs to carefully balance speed and certainty with paying the right amount. That is because once elected, the beneficiary will give up the right to appeal the fixed payment amount or request a waiver of recovery for the fixed payment amount. So before giving up that right, beneficiaries will want to ensure that the fixed payment option, when compared to those known medical expenses paid, makes economic sense. A full explanation, including instructions on how and when to elect this option, will be available on Medicare s website on November 7, 2011 in the Fixed Percentage Option section of both the Attorney and Beneficiary Toolkits. Garretson Resolution Group is available to answer your questions about the provisions of this Alert. Please contact us if you would like us to review or help develop your internal processes and to provide training for all parties that are involved in your healthcare compliance process. Cincinnati Office Charlotte Office Phone Fax Phone Fax Cooper Road Cincinnati, OH Rexford Road 4 th Floor Charlotte, NC 28211

7 April 12, 2011 GRG Client Advisory H.R. 1063: The SMART Act Recently, Congressmen Tim Murphy (R-PA) and Ronald Kind (D-WI) introduced HR 1063, a bill titled the Strengthening Medicare And Repaying Taxpayers Act of 2011 (a/k/a the SMART Act). This piece of legislation proposes a more streamlined approach to obtaining conditional payment amounts from Medicare under the Medicare Secondary Payer ( MSP ) Act (42 U.S.C. 1395y(b)). i Additionally, this bill offers Medicare discretion in imposing penalties on non-complying entities under the recently enacted Medicare, Medicaid and SCHIP Extension Act of 2007 ( MMSEA ). If passed by Congress and signed into law, the SMART Act would provide the following additional MSP compliance rules: Request for Conditional Payment Statement. Claimants and applicable plans would be able to notify Medicare beginning 120 days before the reasonably expected date of settlement/judgment/award/other payment, that a payment is reasonably expected, and ask Medicare for a statement of the conditional payment reimbursement amount (the Document ). A claimant or applicable plan would be able to make this request for the Document only once with respect to such settlement/judgment/award/other payment. Medicare s Response. Medicare would provide the Document no later than sixty-five (65) days after date of receipt of the request for the Document. If Medicare fails to provide the Document, the claimant or applicable plan would provide an additional notice to Medicare. If Medicare then does not provide the Document within thirty (30) days after receipt of the additional notice, the claimant, applicable plan and / or an entity that receives payment from an applicable plan would not be liable to make payment to Medicare for conditional payment reimbursement unless Medicare could show exceptional circumstances (defined so that not more than one percent (1%) of the repayment obligations would qualify as exceptional circumstances). Notice to Medicare of Failure to Settle. If a settlement/judgment/award/other payment did not occur within 120 days as anticipated by the parties, the claimant or applicable plan shall timely notify Medicare, thus exempting Medicare from any obligations imposed above. Right of Appeal. Medicare would establish a right of appeal and appeals process for the payment procedures set forth above, including review through an Administrative Law Judge and access to the US District Court. Threshold. There would be no conditional payment reimbursement obligation and no reporting obligation under Section 111 of the Medicare Medicaid SCHIP Extension Act of 2007 (MMSEA) when a settlement/judgment/award/other payment fails to reach a certain threshold as determined by Medicare on an annual basis. Cincinnati Office Charlotte Office Phone Fax Phone Fax Cooper Road Cincinnati, OH Rexford Road 4 th Floor Charlotte, NC 28211

8 Reporting Requirement Safe Harbors. Section 111 of the MMSEA would be amended to allow Medicare the discretion to not apply the statutory $1,000 penalty for each day of noncompliance with respect to a responsible reporting entity s reporting obligation. The severity of each penalty would be based on the knowing, willful and repeated nature of the violation. This section would also allow for the creation of safe harbors from penalties asserted under Section 111 of the MMSEA. Use of Social Security Numbers and Other Identifying Information in Reporting. Section 111 of the MMSEA would be amended so that responsible reporting entities would not be required to access or report Social Security Numbers or health identification claim numbers (e.g., Medicare numbers) of claimants. Statute of Limitations. A three (3) year statute of limitation would be established within which time the Federal government must bring any action associated with compliance under the MSP. Additionally, penalties asserted under the MMSEA would not be permitted unless service of notice was provided no later than three (3) years after the date by which the information was required to be submitted. We will continue to follow the progress of this legislation. Please check often for updates as well as new client advisories and practice tips. A copy of HR 1063 may be found by clicking this link: For further information regarding GRG s compliance programs please contact Tate Johnson He can assist you and your colleagues with establishing standard operating procedures for addressing Medicare conditional payments and/or MMSEA Section 111 reporting obligations. (See also for more information). i This new bill (HR 1063) is a follow up to HR 4796, the MSP Enhancement Act (a/k/a MSPEA) introduced last year, which was intended to provide certain reforms to the MSP rules. 2

9 December 22, 2011 CMS Introduces Conditional Payment Reimbursement Option Medicare expands resolution options to include a new Medicare repayment program for small settlements or judgments. This program will be available starting in February 2012 and applies to cases settling for $25,000 or less. Under this program, Medicare will provide final conditional payment amounts before settlement under certain circumstances. This program has the potential to revolutionize the settlement process for many Medicare beneficiaries, their counsel, and settling parties. The foundation of that process is to start the verification process early. Recently, the Centers for Medicare and Medicaid Services ( Medicare ) released guidance (the Alert ) relevant to conditional payment reimbursement under the Medicare Secondary Payer ( MSP ) Act (42 U.S.C. 1395y(b)(2)). This guidance permits certain Medicare beneficiaries to receive a final conditional payment amount from Medicare prior to date of settlement. Historically, Medicare s conditional payment reimbursement process has not allowed a Medicare beneficiary or settling parties from obtaining such information from Medicare or its recovery contractors. Under this small settlement option, for a Medicare beneficiary to obtain a final conditional payment amount prior to settlement, the fact pattern must meet all of the following criteria: 1. The liability insurance (including self-insurance) settlement will be for a physical trauma based injury (the settlement does not relate to ingestion, exposure, or medical implant); 2. The total liability settlement, judgment, award, or other payment will be $25,000 or less; 3. The Date of Incident occurred at least six months before the beneficiary or representative submits the proposed conditional payment amount to Medicare; and 4. The beneficiary demonstrates that treatment has been completed and no further treatment is expected either through a written physician attestation or by certifying in writing that no medical treatment related to the case has occurred for at least 90 days prior to submitting the proposed conditional payment amount to Medicare. If the case meets all of these qualifying criteria, then Medicare, through its recovery contractor, the Medicare Secondary Payer Recovery Contractor ( MSPRC ), will provide a final conditional payment amount prior to settlement. This final conditional payment amount provided by the MSPRC will only be valid if the Medicare beneficiary settles a claim Cincinnati Office Charlotte Office Phone Fax Phone Fax Cooper Road Cincinnati, OH Rexford Road 4 th Floor Charlotte, NC 28211

10 within sixty (60) days of the date of Medicare s response. According to MSPRC, this option will be available to Medicare beneficiaries starting in February 2012, and will effectively allow Medicare s related claims to be identified pre-settlement. While the process has not been fully defined, it is likely that once settlement is finalized, the process of requesting a final demand amount from Medicare (by providing gross settlement amount, fees, costs and expenses) will remain the same, regardless of whether this small settlement resolution program has been utilized. GRG has always stressed that starting the Medicare repayment process early provides the best opportunity to comply with all Medicare Secondary Payer obligations while expediting the case. Medicare s 2012 small settlement resolution program reinforces the need to START EARLY! To take advantage of this program in a $25,000 or less case means needing to know if an individual is Medicare enrolled, and if so, how much in medical expenses has Medicare paid conditionally. Having a formalized settlement process that integrates these core concepts will achieve efficiencies and enhance the effectiveness in settlement proceedings. Such a formalized settlement process should include an analysis of the applicability of this small settlement resolution program. Thus, screening a case up front to verify entitlement, establishing a tort recovery record with Medicare early in the process and obtaining the first conditional payment letter from Medicare (all as part of a formalized settlement process) and resolution path is the proper path to take advantage of this small settlement resolution program. Although Medicare currently does not intend to include exposure, ingestion or implantation cases in this program, the Alert identifies that this will be a work in progress. As a result, if this program creates the intended results that benefit the settling parties, taxpayers and the Medicare program, an extension of this program in 2013 may not be out of the question. Medicare intends to issue additional guidance on how to participate in this program in January Garretson Resolution Group will provide further program details once they have been released. Until then, we continue to stress the importance of verifying Medicare enrollment as early in the settlement process as possible, as that information will better define the scope of the settlement continuum; from reimbursement to reporting to potential future cost of care issues. If you have any questions about this new option or any other Medicare Secondary Payer issues, please call us at (866)

11 Protecting Medicare s Future Interest When CMS Declines to Review MSA Proposal: Schexnayder and Smith Two recent orders from the United States District Court provide new guidance on how settling parties may achieve absolute Medicare compliance when the Centers for Medicare and Medicaid Services ( CMS ) chooses not to review a Medicare Set-aside Arrangement ( MSA ) proposal. In both cases, the Court approved the parties settlement absent CMS approval of the MSA (a condition precedent to final settlement of each) and ordered the MSA be funded for the amount of the MSA proposal submitted to CMS for review and approval. This Practice Tip 1) provides a brief synopsis of Schexnayder v. Scottsdale Insurance Company 1 and Smith v. Marine Terminals of Arkansas 2, 2) describes the potential impact these decisions likely will have on the submission of MSA proposals to CMS going forward and 3) demonstrates how these orders fit with CMS stated policy about submitting MSA proposals to CMS for review and approval. Schexnayder Procedural History Robert Schexnayder was injured in the course and scope of his employment on June 17, Mr. Schexnayder sustained significant back injuries while driving a truck owned by his employer. Past medical expenses totaled $377, Of that amount, $151, was paid by the workers compensation insurance carrier, which also agreed to pay an additional $43, based on the terms of the settlement agreement. The balance was privately funded, and Medicare made no conditional payments. The parties agreed to a settlement during mediation on March 22, Part of the consideration of the settlement was that Mr. Schexnayder would be solely responsible for protecting Medicare s interests under the Medicare Secondary Payer statute. 3 Additionally, Mr. Schexnayder agreed to settle the workers compensation ( WC ) claim, which was approved by the Louisiana Office of Workers Compensation. Under the terms of that agreement, the WC insurer and the employer were given a full release. At the time of settlement, Mr. Schexnayder was not a current Medicare beneficiary. Further, Mr. Schexnayder did not possess a reasonable expectation of Medicare enrollment within thirty (30) months of settlement. 4 When settling the WC claim, the parties concluded that no MSA was needed since Mr. Schexnayder lacked the requisite Medicare enrollment status warranting an MSA to be 1 Schexnayder v. Scottsdale Insurance Company, 2011 U.S. Dist. LEXIS (July 29, 2011). 2 Smith v. Marine Terminals of Arkansas, 2011 U.S. Dist. LEXIS (August 9, 2011) U.S.C. 1395y(b)(2). 4 According to CMS, a claimant lacks a reasonable expectation of Medicare enrollment within thirty (30) months of settlement if a claimant has not yet applied for Social Security Disability Income ( SSDI ) benefits, is younger than age 62 ½ years old and does not possess End Stage Renal Disease. Cincinnati Office Charlotte Office Phone Fax Phone Fax Cooper Road Cincinnati, OH Rexford Road 4 th Floor Charlotte, NC 28211

12 established. As a condition of settling the liability claim, Mr. Schexnayder agreed to set funds aside to protect Medicare s interest under the MSP statute. An MSA vendor created an MSA proposal totaling $239, to address the MSA issue as part of the liability settlement. As an additional condition to settlement, this MSA proposal was to be submitted to CMS for review and approval, and final settlement was conditioned upon CMS approving the MSA proposal. Ultimately, CMS did not review the MSA proposal and provided no feedback to the parties, leading the parties to file the joint motion seeking settlement approval from the Court. Smith Procedural History Billy Smith settled claims brought under the Longshore and Harbor Workers Compensation Act for injuries sustained while working as a truck driver aboard a floating barge on April 14, Prior to settlement, the defendant has engaged an MSA vendor to prepare an MSA Allocation. That allocation totaled $313, and was to be used solely for future injury-related care otherwise covered by Medicare. Mr. Smith, displeased with the amount of that MSA Allocation, wanted to engage another MSA vendor to review his case. As a condition of settlement, Mr. Smith agreed to engage the Garretson Resolution Group ( GRG ) to review the MSA issues, prepare an MSA Evaluation and then submit that MSA Evaluation to CMS for review and approval. The GRG MSA Evaluation concluded that an MSA totaling $14,647 was the appropriate amount to protect Medicare s future interest. The GRG MSA Evaluation was submitted to CMS for review and approval. Ultimately, CMS decided not to review the proposal, citing its workload review threshold for its reason not to review the MSA Evaluation. The parties sought settlement approval from the Court absent CMS review and approval of the MSA Evaluation. Case Synopses. In both Schexnayder and Smith, CMS review and approval of the MSA proposal was a settlement condition. CMS declined to review the MSA proposal in either case. Each Court, upon reviewing the MSA proposals in light of the evidence presented, agreed that Medicare s future interest would be protected by funding the MSA in the amount set forth in each MSA proposal. In Schexnayder, the Court found that CMS does not currently require or approve MSAs when settling a personal injury action. It also found that Mr. Schexnayder had become an entity who received payment from a primary plan, and, as a result, was responsible as a primary payer for future medical expenses which were injury-related and otherwise covered by Medicare. Thus, the Court approved the liability MSA totaling $239, In Smith, the Court reviewed the comprehensive and detailed analysis by the Garretson Resolution Group supporting its determination of this MSA. It also found that it was reasonable for Mr. Smith to engage GRG to provide a professional analysis and determination of the projected Medicare Set Aside allocation. The court finds that the Garretson Resolution Group s determination of the MSA of $14, and the supporting rational are reasonable. Potential Impact Schexnayder and Smith support the fact settling parties may fund an MSA and adequately protect Medicare s interest without obtaining CMS approval of the MSA proposal. The cases also reinforce the fact that submission of an MSA to CMS for review and approval, both in the WC context as well as the liability context, is voluntary and not mandatory, following CMS guidance from its policy memorandum dated May 11, Further, both cases remind us to take notice of the well- 2

13 established precedent that the judiciary is hesitant to disturb a settlement agreed upon by the parties unless required to do so. However, these cases should also serve as cautionary tales to the settlement community. Parties should understand that having CMS approval of an MSA as a settlement condition is likely to lead to settlement delays (at best) and failure to meet a condition to settlement (at worst). While obtaining CMS approval of an MSA proposal remains the only guaranteed method by which to ensure CMS agrees with the MSA evaluation, Schexnayder and Smith remind us that asking for, but not receiving such approval, will further complicate the settlement process. What should not be lost in these case analyses is the role a third party can play to ensure absolute Medicare compliance. Schexnayder and Smith provide excellent litmus tests for how involving neutral third parties to assess and lend guidance on the MSA issues can ensure such compliance. Each court s ratification of the MSA evaluations proves the point CMS and even court approval may not be needed if the settling parties adopt a formalized process to address Medicare compliance issues, including MSAs. At the same time, seeking court approval of a settlement where CMS does not review an MSA allocation has the potential to further clog judicial dockets. Unless the settling parties have a contingency plan in effect to take into account the possibility (or perhaps even the likelihood) that CMS will not review an MSA proposal in their settlement, the parties may find themselves in the same precarious position as did the parties in Schexnayder and Smith. MSA Takeaway Following court decisions in the Fall of 2010, this year we continue to see the judiciary adding its input to the MSA debate. In both state 5 and federal 6 courts, we have seen the judiciary taking a more active role where MSA questions are involved because the parties cannot seem to agree, in some cases, on what is required of them to achieve MSP compliance. While seeking judicial guidance on liability issues provides a measure of certainty to the parties, it also represents an untenable solution going forward for all cases, as federal and state court dockets across the country may not have the bandwidth to address these Medicare compliance issues. So what should the settling parties do? In settlements (or litigations leading to judgments) a key question for all parties to ask is the following: Is an MSA needed to protect the Medicare beneficiary s card under the case specific facts? Typically, when a claim is resolved, whether through jury verdict or settlement agreement, if the plaintiff will incur future medical expenses as a result of the injuries pled or claimed in the case, the parties should determine whether an MSA would be appropriate. It is important that the parties complete a good faith analysis of this issue. By making this determination and then documenting the file accordingly, three things result: i. Medicare s future interest is considered and protected appropriately; ii. The parties are compliant with the MSP and all associated regulations; and iii. The beneficiary s Medicare benefits are protected going forward. 5 Hinsinger v. Showboat Atlantic City, 2011 N.J. LEXIS 96 (January 21, 2011). 6 See Schexnayder and Smith. See also Big R. Towing v. Benoit, Civ. Action No , 2011 WL (W.D. La. Jan. 5, 2011) and Finke v. Hunter s View, Ltd., 2009 WL (D. Minn. Aug. 25, 2009). 3

14 Every case (liability, workers compensation or no-fault) needs to be screened to identify which Medicare interests need to be resolved. Following screening, for those cases that qualify, the parties should evaluate damages to identify whether there is a future cost of care component (allocation) to the settlement, and a burden shift of the payment and management of that future care over to Medicare. As part of developing an absolute Medicare Secondary Payer compliance mindset, each settling party should know what role is to be played for three distinct obligations, two of which arise on the part of plaintiffs and one the defendant: Plaintiffs / Claimants Verify, resolve and satisfy any past conditional payments made by Medicare; and Consider how best to address any future interests Medicare would have in not paying for future injury-related care. Defendants / Insurers Electronically report liability settlements or judgments to Medicare starting Oct. 1, 2011 (following Section 111 of the MMSEA). The Garretson Resolution Group continues to closely monitor how decisions such as Schexnayder and Smith affect settlements and future cost of care issues such as MSAs. Please see our website at for resources such as White Papers, articles and other practice tips related to Medicare Secondary Payer. To view a copy of the Schexnayder decision, click here. To view a copy of the Smith decision, click here. 4

15 Page 1 1 of 1 DOCUMENT BILLY SMITH, PLAINTIFF vs. MARINE TERMINALS OF ARKANSAS, DEFENDANT and AMERICAN HOME ASSURANCE COMPANY, INTERVENOR Case No. 3:09 - CV JLH UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS, JONESBORO DIVISION 2011 U.S. Dist. LEXIS August 9, 2011, Decided August 9, 2011, Filed PRIOR HISTORY: Smith v. Marine Terminals of Ark., Inc., 2010 U.S. Dist. LEXIS (E.D. Ark., Nov. 17, 2010) COUNSEL: [*1] For Billy D Smith, Plaintiff: Christopher Richard Heil, George R. Wise, Jr., LEAD ATTORNEYS, Brad Hendricks Law Firm, Little Rock, AR; Brian G. Brooks, Attorney at Law, Greenbrier, AR. For Marine Terminals of Arkansas Inc, Defendant: Gary Ray Bratton, LEAD ATTORNEY, Elissa M. Marcopulos, Gregory W. O'Neal, Bratton, O'Neal & Thorp, P.C., Memphis, TN. For American Home Assurance Company, Intervenor: Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metarie, LA. JUDGES: HONORABLE J. LEON HOLMES, UNITED STATES DISTRICT JUDGE. OPINION BY: J. LEON HOLMES OPINION ORDER Before the Court is a Motion to Determine Set Aside Amount, filed on behalf of plaintiff, Billy Smith, and joined by defendant, Marine Terminals of Arkansas, and intervenor, American Home Assurance Company. In his motion, plaintiff asks the court to confirm and/or determine a reasonable allocation representing the future cost of medical treatment causally related to injuries sustained in plaintiff's accident of April 14, 2006 that would also be covered by Medicare, commonly referred to as the "Medicare Set Aside" ("MSA"). Because Billy Smith is a current recipient of Social Security Disability benefits, he is currently Medicare eligible [*2] and the parties must reasonably consider and protect Medicare's interests consistent with the Medicare Secondary Payor Act, 42 U.S.C. 1395y. Billy Smith sued Marine Terminals of Arkansas, Inc. for damages associated with a permanent and disabling injury to his right hand while working as a truck driver aboard a floating barge owned and operated by his employer. The accident occurred on April 14, 2006 when a co-worker of Smith closed a crane bucket on Smith's right hand during an operation underway in which Smith was assisting. Smith originally asserted entitlement to recovery under the Jones Act and general maritime law for alleged negligence of his employer and alleged unseaworthiness of the barge. Those claims were dismissed by the Court on defendant's Motion for

16 2011 U.S. Dist. LEXIS 90428, *2 Page 2 Summary Judgment which was granted in part by this Court on November 17, 2010 dismissing all claims based upon Smith's alleged status as a seaman. Smith had also filed an alternative claim based on vessel negligence preserved to him by Section 905(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et. seq., which claim survived summary judgment. Smith contends that Marine Terminals of Arkansas ("MTA") [*3] was negligent in failing to provide him a safe place to work and failing to properly conduct, supervise, direct and/or control the operation being conducted at the time of the injury. Plaintiff also contends that as a result of the accident he sustained severe and permanently disabling injuries to his right hand, emotional and mental pain, anguish and distress, loss of past and future wages and wage earning capacity, disfigurement and past and future medical expenses. Following the accident, Smith was taken to the local Emergency Room in a personal vehicle but was promptly transferred to the Barnes Jewish Hospital in St. Louis where he was treated primarily by Dr. Charles Goldfarb, orthopedist. Smith underwent approximately five surgeries on his right hand which had been crushed in the accident. He has also undergone a carpal tunnel surgery on the right hand. After discharge from Dr. Goldfarb, he underwent extensive physical therapy at Southern Hand Center. Plaintiff also treated with mental practitioners after the accident for post traumatic stress. Smith received weekly compensation benefits and medical expenses for a time under the LHWCA paid by the intervening workers' compensation [*4] carrier, American Home Assurance Company. Benefits were terminated effective March 17, 2009, at about the time Billy Smith filed suit asserting that he was a Jones Act seaman. The LHWCA and Jones Act are mutually exclusive remedies. Following the accident of April 14, 2006 and through March 17, 2009, American Home paid a total of $265, in total benefits allocated as follows: $51, in weekly compensation benefits and $213, in medical benefits. The parties reached a settlement agreement following a day-long court-ordered settlement conference in which all parties were represented by counsel and presided over by Honorable H. David Young, Magistrate Judge, on February 23, Under the terms of that settlement agreement, Billy Smith agreed to compromise and discharge all claims against defendant asserted in the liability suit and all claims under the LHWCA against the employer and intervening workers' compensation carrier in exchange for a total payment by the parties released of $1,000, In addition to the aforementioned payments, the parties agreed to the following as conditions to the settlement: 1. American Home was to waive its entire lien of $265, on [*5] past benefits paid under the LHWCA; 2. In order to consider and protect Medicare's interest in the settlement, plaintiff, through his counsel, was to retain the Garretson Resolution Group to determine a Medicare Set Aside amount and seek submission with the Center for Medicare and Medicaid Services ("CMS") for approval; 3. The parties agreed that the settlement required approval of a Medicare Set Aside and that plaintiff would self-administer the required MSA funds from the proceeds of the settlement consistent with CMS guidelines and requirements; 4. The overall settlement was also conditioned upon obtaining USDOL approval by the District Director of the settlement of the underlying LHWCA claim following approval of the MSA pursuant to Section 908(i) of the LHWCA; and 5. The two involved carriers would mutually release all potential claims between them. The general terms and conditions of the settlement were placed upon the court record following the successful settlement conference on February 23, Following the settlement agreement, plaintiff through his counsel, did in fact retain the Garretson Resolution Group, a professional and experienced Medicare vendor, to determine a proposed [*6] Medicare Set Aside allocation and to submit the MSA to CMS for consideration of settlement. The Garretson Resolution Group's Workers' Compensation Medicare Set Aside

17 2011 U.S. Dist. LEXIS 90428, *6 Page 3 Arrangement Analysis And Report are attached as Exhibit 1 to this Order. In that report, the Garretson Resolution Group determined that $14, was a reasonable allocation to cover the projected lifetime cost for medical care that was expected to be incurred by Billy Smith for treatment of accident-related injuries that would otherwise be covered by Medicare. The court has reviewed the comprehensive and detailed analysis by the Garretson Resolution Group supporting its determination of this MSA. Although it is not necessary to repeat all the details in that report, the court has thoroughly reviewed it and notes the following. Dr. Goldfarb determined that Billy Smith reached maximum medical improvement with respect to objective injuries to his right hand by March 21, 2007 after Smith had undergone a Functional Capacity Evaluation which indicated that he had no functional grip in his right hand but could grasp light small items given the limited use of his right thumb and fingers on his right hand. There is more of a dispute [*7] with respect to the psychiatric treatment. Smith had been treating regularly with Dr. Margaret Singleton and Dr. David Erby who had diagnosed posttraumatic stress disorder. Pursuant to that treatment, Smith was taking several medications. The defendant had Smith examined by Dr. Wayne Stillings, psychiatrist, who concluded that although claimant had developed PTSD following the accident of April 14, 2006, as of February 19, 2008, it was Dr. Stillings's opinion that claimant no longer needed psychiatric treatment that was causally related to the April 14, 2006 work accident. Furthermore, it was Dr. Stillings's opinion that Smith was able to return to work within the restriction that he is unable to work in the proximity of a crane. Dr. Erby had likewise indicated that Smith could return to work as long as he was not working on or near a crane. From early 2009 through the present time, Smith has treated only with his cardiologist, Dr. Shalender Mittal, primarily for non-accident related conditions. Smith has not received any treatment since approximately January 2009 for work-related injuries. Based upon a review of these records and proceedings in this matter as well as the submissions [*8] of counsel it is apparent that had this case proceeded to trial, it would have been necessary for the fact-finder to consider and resolve disputed issues involving claimant's credibility, ability to work, necessity of future medical treatment and causation of future medical treatment, the outcome of which would require the weighing and balancing of medical evidence touching upon all of these issues, which is in significant conflict. As agreed by the parties as a condition of settlement, the Garretson Resolution Group did in fact determine the MSA and submitted it to CMS for review and consideration on March 17, The Court has also reviewed and considered the Affidavit of John V. Cattie, Jr., Esq., an attorney and Lead Consultant with the Garretson Resolution Group, dated July 6, 2011, and attached as Exhibit 2. In his affidavit, Mr. Cattie details conversations and correspondence he had with CMS representatives pursuant to the Garretson Resolution Group's effort to supply CMS with information requested and to obtain a response regarding the MSA. CMS ultimately decided not to review the MSA submission in the context of the settlement citing workload threshold. However, the workload [*9] threshold mentioned in Mr. Walters's letter is $25, and clearly the settlement amount of $1,000, significantly exceeds that threshold. It is apparent to the Court from the aforereferenced CMS correspondence and affidavit from attorney Cattie that regardless of the details and potential deficiencies in the original submission, that CMS has decided it will not, for whatever reason, review or reconsider the proposed MSA, which response or lack thereof potentially jeopardizes what otherwise appears to be a reasonable settlement in the best interests of Billy Smith to accept and complete. Based upon the records and proceedings of this matter and the stipulations and submissions of counsel, the court makes the following findings of fact: 1. Billy Smith's date of birth is March 19, He is currently receiving Social Security Disability benefits such that he is currently eligible for Medicare benefits; 2. Billy Smith is a covered employee under the LHWCA and can pursue a claim under the general maritime law preserved to him under Section 905(b) of the LHWCA against his employer in his employer's capacity as a vessel owner. However, to recover, Billy Smith must show that the negligence [*10] which

18 2011 U.S. Dist. LEXIS 90428, *10 Page 4 caused his accident of April 14, 2006 emanated from the vessel or vessel operations of his employer. Should he recover, he would be entitled to pecuniary damages for his economic losses and past incurred economic expenses as well as past and future medical expenses. The precise amount of future medical expenses cannot be determined with certainty and always involves some speculation. 3. Considering all the facts and circumstances of this case, including the liability and medical causation issues that are in significant dispute, in particular associated with future economic and medical damages; the parties' agreement to settle this case for a total payment of $1,000,000.00, with a full waiver of the workers' compensation lien on benefits of $265,423.27, as well as the other conditions associated with the settlement; represent a reasonable compromise to avoid the uncertainty and expense should the case proceed to trial. 4. Billy Smith is obligated to reimburse Medicare for all conditional payments made by Medicare to date, for medical expenses incurred by Smith. Smith has represented that Medicare has made no conditional payments in this case. Likewise, Billy Smith is obligated to [*11] self-administer those funds set aside in his Medicare Set Aside account and to administer those funds in compliance with CMS/Medicare guidelines. 5. In recognition of the joint responsibility of the parties to consider and protect Medicare's interest in a settlement like this one which compromises and discharges employee's claims for future medical expenses against a liability defendant, in this case claimant's employer, Marine Terminals of Arkansas, and which disposes of his potential medical claims under the LHWCA, it was reasonable for the plaintiff to retain the Garretson Resolution Group to provide a professional analysis and determination of the projected Medicare Set Aside allocation. The court finds that the Garretson Resolution Group's determination of the MSA of $14, and the supporting rational are reasonable. Specifically, the court finds that $14, is a reasonable estimate and determination of the future expected medical treatment that Billy Smith will require resulting from his accident-related injuries that would otherwise be covered by Medicare. 6. There is no evidence that Billy Smith or any other party is attempting to shift the responsibility for payment [*12] of such future medical expenses for the treatment of work-related conditions and injuries to the federal government or to Medicare. On the contrary, the parties have done all that is reasonable and prudent and within their ability and authority to do to protect Medicare's potential interest in this settlement. 7. The court finds that CMS has failed to consider and approve the Garretson Resolution Group's competent MSA determination of $14, Based upon the foregoing findings of fact, the undersigned makes the following conclusions of law: 1. The parties shall and have reasonably considered and protected Medicare's interest in the settlement of this matter. 2. Medicare is a secondary payor under the Medicare secondary payor program, to the extent that there are Medicare covered expenses incurred by Billy Smith, in the past or in the future, arising out of the accident and injuries alleged in this lawsuit. 3. Billy Smith is obligated to reimburse Medicare all conditional payments made prior to the time of the settlement, and for all medical expenses

19 2011 U.S. Dist. LEXIS 90428, *12 Page 5 submitted to Medicare prior to the date of this Order, even if such conditional payments are asserted by Medicare subsequent to the effective [*13] date of this Order. 4. The findings of fact support the conclusion that Billy Smith is currently Medicare eligible and therefore considered a Medicare beneficiary. The sum of $14, as a Medicare Set Aside, as determined by the Garretson Resolution Group is approved by this court to be set aside by Billy Smith out of the settlement proceeds for future medical expenses associated with treatment required for physical and mental injuries sustained in the accident of April 14, 2006, fairly and reasonably takes Medicare's interest into account, and as such, Billy Smith should set aside this amount to protect Medicare's interests as a secondary payor for future medical expenses arising out of the injuries alleged in his lawsuit. Based upon the foregoing conclusions of law, the court enters the following Order: IT IS HEREBY ORDERED that: 1. Upon Billy Smith and/or the Garretson Resolution Group receiving confirmation for Medicare/CMS of any conditional payments made by Medicare for medical services provided prior to the date of this order, Billy Smith shall promptly reimburse Medicare for such conditional payments. 2. Billy Smith shall set aside the full amount of $14, from his settlement [*14] proceeds in an account separate from any other checking or savings accounts for the exclusive payment of future medical expenses incurred for treatment of injuries sustained in his accident of April 14, 2006 which would otherwise be paid or payable by Medicare. 3. Billy Smith shall comply with the guidelines and procedures of the Center for Medicare and Medicaid Services for self-administering his MSA account in the amount of $14, All of the parties hereto may rely upon the Court's acceptance of the MSA at $14, and shall proceed accordingly with the completion of the settlement process consistent with the conditions and terms of the settlement agreement reached on February 23, The Motion To Determine Medicare Set Aside amount is granted. 6. The case is hereby re-closed. SO ORDERED this 9th day of August, 2011 in Little Rock, Arkansas. /s/ J. Leon Holmes HONORABLE J. LEON HOLMES UNITED STATES DISTRICT JUDGE

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