Workers Compensation Institute 2012 Educational Conference Seeing the Forest through the Trees: MSA/LMSA Trends Celia Mendez, Esq. Cynthia Sage, Esq. Rafael Gonzalez Moreland & Mendez FCCI Insurance Gould & Lamb Maitland, Florida Sarasota, Florida Bradenton, Florida Learning Objectives Understand when to consider Medicare s interests. Know how to appropriately take Medicare s future interests into account when settling a work comp, auto, or liability matter. Work Comp and Liability Medicare Set Aside trends. Agenda Workers Compensation Medicare Set Asides. Liability Medicare Set Asides. Center for Medicare and Medicaid Services Policy. Pending Congressional Proposals and Legislation. 1
Workers Compensation Medicare Set Asides Current Medicare Beneficiaries If claimant is Medicare beneficiary at time of settlement, Medicare requests allocation be submitted for approval if the settlement is for more than $25,000. Once allocation is approved, future Medicare coverage is assured after allocation has been properly exhausted. Must always take Medicare s interest into account. Medicare Eligible Within 30 Months of Settlement If claimant is not yet a Medicare beneficiary, but can reasonably be expected to become one within 30 months of settlement and the settlement is above $250,000, Medicare requests allowance for the future projected costs and obtaining CMS approval. If such an allowance is not made, Medicare may claim the entire settlement amount as an allowance for medicals. 2
Medicare Set Aside Allocation The amount of money placed in MSA is not negotiable between the claimant, employer, and insurer. Allocator evaluates injured party s medical records to determine the future medical treatment and prescription needs related to the claim. Based on life expectancy, projection is made for expenses of Medicare covered treatment based upon medical reimbursement fee schedule. Medicare Set Aside Approval Pre-existing vs. claim related medical conditions. Medicare approved future treatment and prescriptions. Allocation with unit pricing for treatment and medications over life expectancy. Settlement documentation, funding, and administration of MSA. Medicare Set Aside Appeals If the claimant or submitter believes that a CMS determination contains obvious mistakes, contact the CMS Regional Office that issued the CMS determination for a correction of the errors. If the claimant or submitter believes that CMS has misinterpreted the evidence or disagrees with the CMS determination, may resubmit the case with the additional evidence and request a reevaluation. 3
Medicare Set Aside Account Funding MSA funding must be kept in separate interest bearing account. CMS allows Medicare Set Asides to be funded with lump sum amount from settlement or through structure/annuity. If structured, seed with 2 years of treatment and medication and large ticket items in lump sum, remainder divided by life expectancy for annual. Medicare Set Aside Administration Self or professionally administered. Claim related medical/prescription only. Must be Medicare covered. Payment per WC or Usual/Customary fee. Annual/exhaustion accounting to CMS. Liability Medicare Set Asides 4
Minnesota Federal District Court Concludes No MSA Necessary in Liability Claim Finke v. Hunter s View, (USDC Minnesota, August 26, 2009). The court concluded that there was no reason for the parties to set aside any certain amount for future Medicare claims as Claimant unlikely to become Medicare beneficiary in foreseeable future. Louisiana Federal District Court Determines MSP Compliance by Ordering MSA Allocation Big R Towing, Inc. v. Benoit, (USDC WD Louisiana, January 5, 2011). Parties reached settlement in Jones Act liability case for $150,000. Federal Magistrate held evidentiary hearing finding that in order to take Medicare s interest into account, Benoit will set aside $52,500.00 from the settlement for payment of future medical benefits related to claim. Louisiana Federal District Court Concludes Medicare s Interests Adequately Protected Schexnayder v. Scottsdale Insurance Company, (USDC WD Louisiana, July 28, 2011). Court ordered $239,253.84 out of the $2.1 million settlement to be utilized to pay for future medical items or services related to the claim that would be otherwise covered by Medicare. 5
Arkansas Federal District Court Affirms MSA Takes Medicare s Interest Into Account Smith v. Marine Terminals of Arkansas, (USDC ED Arkansas, August 9, 2011). $14,647.00, out of the $1.0 million settlement, is approved to be set aside for future medical expenses associated with treatment required for injuries sustained in the claimed accident. Court found MSA fairly and reasonably takes Medicare's interest into account. Louisiana Federal District Court Finds $3,200 Protects Medicare s Interests Frank v. Gateway Insurance Company, (USDC WD Louisiana, March 13, 2012). $3,200 should be available for future medical services related to claim that would otherwise be covered by Medicare. Since CMS provides no procedures to protect Medicare's future interests with settlement of thirdparty claims, Medicare's interests have been adequately protected. Florida Federal District Court Finds No MSA Necessary Based on Agreement Bruton v. Carnival Corporation, (USDC SD Florida, May 2, 2012). Court finds that Plaintiff executed a general release with appropriate Medicare provisions and thereby complied with the terms of the Agreement. Court finds that Defendant, having failed to make payment to Plaintiff as required by Agreement, was in breach of Agreement. 6
Louisiana Federal District Court Orders MSA Funded, Medicare Adequately Protected Bertrand v. Talen s Marine & Fuel, LLC, (USDC WD Louisiana, June 4, 2012). $64,866.88 out of the settlement proceeds for payment of future medical items covered by Medicare, related to claim. Since no other procedure to protect Medicare's interests, Court finds that Medicare's interests adequately protected. New Jersey Superior Court Allows Attorney Fee Deducted From Medicare Set Aside Hinsinger v. Showboat Atlantic City, (New Jersey Superior Court, May 19, 2011). $600,000 civil liability settlement, $180,600 was placed in a Medicare set aside. Per 42 C.F.R. 411.37(c), court finds appropriate to allow procurement costs to be deducted from MSA. When applied to set aside, procurement reduction equaled $59,196.67. Illinois Appellate Court Finds MSA Funds are Part of Marriage Dissolution Agreement In Re Marriage of Washkowiak, (Appellate Court of Illinois 3rd District, March 7, 2012). Of the $435,000 husband s work comp settlement, the $70,000 MSA funds are net proceeds and part of the dissolution. Court determines that wife is entitled to 17.5% of the entire settlement, including the $70,000 MSA. 7
Center for Medicare and Medicaid Services Policy CMS Publishes WCMSA Memo Reiterating Previous Thresholds Reiterates thresholds provided in CMS 7/23/01, 7/11/05, and 4/25/06 Memos on thresholds. Reiterates that submission of a WCMSA to CMS for approval is a recommended process. CMS no longer reviews WCMSA if thresholds are not met. However, Medicare beneficiaries must consider Medicare's interests in all WC cases and ensure that Medicare is the secondary payer to WC in such cases. CMS Publishes First Liability Medicare Set Aside Memorandum If treating physician certifies in writing that treatment for the injury related to the liability settlement has been completed as of the date of the settlement, and future medical services for that injury will not be required, Medicare considers its interest satisfied. When the treating physician makes such a certification, there is no need for the beneficiary to submit the certification or a proposed LMSA amount for review. 8
CMS Opens Work Comp Medicare Set Aside Portal to Public CMS has completed its Pilot Testing of the Workers' Compensation Medicare Set-aside Portal (WCMSAP). The portal is now ready for public use. Attorneys, Medicare beneficiaries, claimants, insurance carriers and WCMSA vendors may use this site to enter the case information directly instead of submitting such WCMSAs on paper or disc. CMS Publishes Advance Notice of Proposed Rulemaking on MSP Future Medicals CMS is soliciting comments on options on how to protect Medicare's interest with respect to claims involving automobile and liability insurance (including self-insurance), no-fault insurance, and workers' compensation when future medical care is claimed or settled. General rule is that if beneficiary obtains a settlement and has received or anticipates receiving Medicare covered items and services after the date of settlement, he/she is required to satisfy Medicare's interest using one of 7 options. Pending Congressional Proposals and Legislation 9
HR 1063: Strengthening Medicare and Repaying Taxpayers (SMART) Act 2011 120 days before expected date of settlement, may notify Secretary and request conditional payment amount. 65 days after the date of receipt of request, Secretary shall respond. If Secretary fails to respond within 30 days, parties shall not be obligated to make payment for any service. SOL is 3 years from date of the receipt of notice of a settlement, judgment, award. HR 5284: The MSP and WC Settlement Agreement Act of 2012 HR 5284 exempts work comp settlement agreements that do not exceed $25,000, where the claimant is not a Medicare beneficiary and settlement agreements that do not exceed $250,000, where the claimant is unlikely to become so eligible within 30 months. HR 5284 also allows for a safe harbor of 15 percent of the total settlement amount of the agreement. Thank You! Celia Mendez, Esq. Moreland & Mendez, PA celiam@mandmpa.com (407) 539-2121 Cynthia Sage, Esq. FCCI Insurance Group csage@fcci-group.com (800) 226-3224 Rafael Gonzalez Gould & Lamb, LLC rafael.gonzalez@gouldandlamb.com (941)798-2098 10