Structured settlements currently play an important role in compliance with Medicare s Secondary Payer Act.

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1 August 14, 2012 Centers for Medicare & Medicaid Services Department of Health and Human Services ATTN: CMS-6047-ANPRM Room 445-G Hubert H. Humphrey Building 200 Independence Ave., SW Washington, DC Introduction RE: CMS-6047-ANPRM The National Structured Settlements Trade Association (NSSTA), which represents nearly 1,200 professionals who work with accident survivors and their dependents, has prepared this memorandum for CMS and the Department of Health and Human Services (HHS) in response to CMS-6047-ANPRM RIN 0938-AR43 (Medicare Secondary Payer and Future Medicals ). Since 1983, the federal tax code has explicitly recognized and encouraged the use of structured settlements to resolve injury and accident claims. Structured settlements continue to maintain the support of strong bipartisan coalitions in both chambers of Congress because they represent the ultimate win-win option when used to settle workers compensation and/or tort actions. A structured settlement provides funds to meet living expenses and future medical needs, paid periodically over time instead of in a single lump sum. The injured party is not allowed to control the structured settlement funding vehicle (annuity or federal government obligations) after settlement and therefore cannot be tempted to spend funds prematurely. Structured settlements provide long-term financial security of accident victims while also helping to keep them from requiring other government benefits, such as Medicaid. For the purposes of this memorandum, NSSTA will use the term Medicare set-aside arrangement to describe the consideration of Medicare s interest in settlements. NSSTA is not advocating that CMS review and approval Medicare set-aside arrangements or that a formal Medicare setaside allocation be required. Structured settlements currently play an important role in compliance with Medicare s Secondary Payer Act. In workers compensation cases, CMS has published a memorandum for establishing and administering Medicare set-aside arrangements. In this guidance, CMS has agreed that a Medicare set-aside arrangement can be established as a structured settlement (Ref: CMS Memo Q10 & 10/14/04 Q5).

2 There are many reasons why structured settlements (annuities) are tremendously advantageous as a primary tool to fund Medicare set-aside arrangements. Structured settlements/periodic payments may reduce premature dissipation of Medicare set-aside arrangements. Medicare set-aside arrangements paid directly to the injured party has a higher probability of pre-mature exhaustion due to mismanagement, which is imperative to strengthening the Medicare Trust Fund. Structured settlement annuities make the funding of a Medicare set-aside arrangement financially possible, allowing the parties to reach an amicable settlement. An important benefit of structured settlement annuities involves their ability to provide lifetime payments. Americans are living longer. U.S. Census Bureau projects that by the year 2050, 20.7% of the U.S. population will be over the age of 65, up from 12.4% in NSSTA encourages CMS to review the fundamental differences between workers compensation and liability claims in regards to addressing Medicare s future interest. Workers Compensation claims, if deemed compensable, provide for indemnity (wage loss) and medical services and expenses (for a certain period of time or for life). There is a very specific medical records and payment history that can be analyzed to determine future medical services and prescriptions based on life care planning principles. Employers and employees use the statutory framework and the analysis of their exposure to determine whether settlement is feasible. It is important to note that a workers compensation case does not have to be settled. The employer can pay the indemnity and medical required, as required by the statute. Or, there can be a dispute between the parties regarding the scope of the injury and the workers compensation benefits due under the statute. A dispute may involve anything from a disagreement of the indemnity benefit amount owed or the scope of the medical services and expenses due by the employer for the work injury. The voluntary Medicare set-aside process currently being utilized by most employers or their insurers and employees, to consider Medicare s interests in a workers compensation settlement, while not perfect, does allow the parties to determine whether it is feasible to agree to a settlement. Using structured settlement annuities to fund these workers compensation Medicare set-aside arrangements makes settlement a viable financial option for settlement, provides the injured party with periodic payments that may less likely be mismanagement than a lump sum, while protecting Medicare s interests. Liability claims do not typically have statutory requirements to pay lifetime medical benefits. While there are alleged damages of past and future wages, past and future medicals, loss of consortium, pain and suffering and punitive damages, there is usually a defense of these claims. There may also be additional issues of analysis such as policy limits, comparative and contributory negligence, statutory caps on damages (economic and/or medical) limiting the amount that a defendant would pay to settle a claim. All claims must be considered, not just those involving past and future medical. The ultimate settlement may provide a very small percent to medical due to the other economic damages. As a result, the current voluntary Medicare set-aside allocation process utilized for workers compensation settlements will simply 2

3 not work for liability claims due to these issues. In those liability settlements that do have a specific future medical component that can be identified and apportioned appropriately, a structured settlement annuity is a viable financial option for CMS and the parties to consider as it make settlement more financial viable for the defendant(s), provides the injured party with periodic payments that may less likely be mismanaged than a lump sum, while protecting Medicare s interests. NSSTA provides the following comments in relation to the proposed Options. 1. The individual/beneficiary pays for all related future medical care until his/her settlement is exhausted and documents it accordingly. NSSTA respectfully suggests that this option requires a more detailed explanation of exhaustion and documentation. If the injured party is expected to exhaust the ENTIRE settlement amount to consider Medicare s interests, the result will be a paralysis of the system and settlements would not occur. 2. Medicare would not pursue future medicals if the individual/beneficiary s case fits all of the conditions under either of the following headings: a. The amount of liability insurance (including self-insurance) settlement is a defined amount or less and the following criteria are met: - The accident, incident, illness, or injury occurred one year or more before the date of settlement; - The underlying claim did not involve a chronic illness/condition or major trauma; - The beneficiary does not receive additional settlements; and - There is not corresponding workers compensation or no-fault insurance claim. b. The amount of liability insurance (including self-insurance) settlement is a defined amount or less and all of the following criteria are met: - The individual is not a beneficiary as of the date of settlement - The individual does not expect to become a beneficiary within 30 months of the date of settlement; - The beneficiary does not receive additional settlements; and - There is no corresponding workers compensation or no-fault insurance claim. 3. The individual/beneficiary acquires/provides an attestation regarding the Date of Care Completion from his/her treating physician and CMS would take no future interest in the case and would only pursue conditional payments. 4. The Individual/Beneficiary Submits Proposed Medicare Set-Aside Arrangement (MSA) Amounts for CMS Review and Obtains Approval 3

4 This is similar to the voluntary process being followed today for workers compensation settlements. If CMS requires review and approval of a formal MSA for liability settlements, it encourages the use of structured settlements as a viable funding vehicle. A structured settlement annuity is a viable financial option for CMS that protects Medicare s interests, makes settlement more financially viable for the defendant(s), and provides the injured party with periodic payments that may be less likely to be mismanaged than a lump sum. NSSTA encourages CMS to discuss the fundamental differences between workers compensation and liability claims with both the defense and plaintiff bar. Workers compensation claims are very different from liability claims and should not have the same processes and procedures for determining Medicare set-aside arrangements. Any formal process adopted by CMS should include the option for funding the Medicare set-aside arrangement with a structured settlement annuity. The defendant/insurer will want to fund a settlement in the most cost effective manner. A structured settlement annuity to fund a Medicare set-aside arrangement should be encouraged because: a. Funding an MSA with cash to seed the MSA account and a structured settlement annuity over the injured party s life expectancy is almost always less expensive than paying the MSA in a lump sum. This option provides a viable financial solution for the defendant to consider settlement and/or frees up dollars for settlement negotiation purposes. b. Paying the MSA in a lump sum to the injured party may provide undue enticement for mismanagement in difficult economic times. By funding the MSA with a structured settlement, the future medical payments are spread out over the injured party s life expectancy, providing funds as needed, with Medicare covering medicals in those years in which it is needed. c. Funding an MSA with a structured settlement annuity considers Medicare s interests which should benefit all American taxpayers 5. The beneficiary participates in one of Medicare s recovery options: If a beneficiary alleges a physical trauma-based injury, obtains a liability insurance (including self-insurance) settlement of $300 or less, and does not receive or expect to receive additional settlements related to the incident, Medicare will not pursue recovery against that particular settlement. 6. The beneficiary Makes an Upfront Payment. a. If ongoing responsibility for medicals was imposed, demonstrated or accepted from the date of settlement through the life of the beneficiary or life of the injury, we may review and approve a proposed amount to be paid as an upfront lump sum payment for the full amount of the calculated cost for all related future medical care. 4

5 b. If a beneficiary obtains a "settlement," our general rule stated previously applies to the "settlement," and ongoing responsibility for medicals has not been imposed on, demonstrated by or accepted by the defendant, the beneficiary may elect to make an upfront payment to Medicare in the amount of a specified percentage of "beneficiary proceeds." NSSTA opposes this option. The Upfront Payment option provides no ability to leverage the time value of money or mortality benefits of an annuity, which could ultimately cost the parties involved more money. 7. The Beneficiary obtains a Compromise or Waiver of Recovery. Conclusion NSSTA encourages CMS to consider the policy benefits of encouraging the use of structured settlements as a funding mechanism for Medicare set-aside arrangements, whether or not there is a formal review and allocation process. Structured settlements provide a financially viable funding mechanism that may make settlement feasible to the parties, provides stable income over the injured party s life expectancy, minimizing mismanagement risk and ensuring funds are available as needed, and provides compliance with Medicare s Secondary Payer Act in considering Medicare s interests in settlements involving future medicals. Thank you for considering these comments. Sincerely, Eric Vaughn Executive Director National Structured Settlements Trade Association 5

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