Medicare Set-Asides
A Medicare Set-Aside (MSA) is a tool that allows injury victims to preserve Medicare benefits by setting aside a portion of the settlement money in a segregated account to pay for future Medicare covered services. The funds in the set aside can only be used for Medicare covered expenses for injury related care. Once the set aside account is exhausted, an injury victim gets full Medicare coverage without Medicare ever looking to the remaining settlement dollars to provide for any Medicare covered future health care. Medicare may approve the amount to be set aside in writing and agree to be responsible for all future expenses once the set aside funds are depleted if the parties choose to submit the allocation to CMS for review and it a reviewable MSA. Advising injury victims about Medicare compliance and set asides are an integral part of the responsibilities of a trial lawyer at settlement.
Below are our Synergy InSights on all things related to MSAs, written by our industry leading Medicare compliance experts.
B. Josh Pettingill
Reversionary clauses have become a common term of settlement in workers’ compensation cases involving a Medicare Set Aside (MSA). It is important for workers’ compensation attorneys to understand how these clauses can impact the injured worker, as well as the settlement.
What is a reversionary clause?
A reversionary clause means that when the injured worker passes away, any funds remaining in the WCMSA account would “revert” back to the carrier. The carrier essentially receives a rebate, or a refund on any unspent medical funds. The argument by the carrier for a reversionary clause is that they should only pay for medicals if the claimant is alive. Therefore, if the claimant passes away before the funds are exhausted, there is a “windfall” of money to the claimant’s beneficiaries or family.
Most plaintiff/applicant attorneys are not apt to agree to such a clause since it is money that the injured worker does not get to keep. There are multiple variations of a reversionary clause where it could be based either on a lump sum amount on the remaining funds in the account, the number of guaranteed annuity payments remaining on any structured settlement used to fund the MSA obligation, or a combination of both[1].
You must be careful when agreeing to use their professional MSA administration company for the MSA account. One trick that carriers use is to offer to pay for lifetime professional administration “for the benefit” of the claimant. They do this for multiple reasons. They may have financial relationships with certain providers that incentivize them monetarily to push business towards a certain company. This also gives assurance that they will get paid back if there is a reversionary clause in place. The MSA administrator becomes a cash collector for them upon the injured worker’s passing. If professional administration is not in place, then it is exceedingly difficult to collect from a claimant’s estate even if this is a material term of the settlement.
Plaintiffs’ attorneys must be proactive to exclude or modify reversionary clauses
A reversionary clause should never be agreed to as a provision of a workers’ compensation settlement. Furthermore, if a settlement is reached, then the injured worker should be given the choice to select the company to professionally administer the WCMSA at the carrier’s expense.
There are rare occasions when a reversionary clause may be useful to reaching an agreement if there is a catastrophically injured person with a large WCMSA and reduced life expectancy. We have seen firsthand where a reversionary clause has helped bring the settling parties together because it allows the carrier to pay more dollars to get the case resolved in exchange for having some protection in the event the injured worker passed away prematurely. If the carrier insists on a reversionary clause, then you can always negotiate that only a certain percentage of any remaining funds or a certain number of annuity payments will revert to the carrier.
About Synergy’s Workers’ Compensation Settlement Experts
Synergy’s Workers’ Compensation Settlement Services team is headed up by Jason Lazarus who is a former workers’ compensation attorney and Josh Pettingill who frequently testifies as an economist on workers’ compensation matters. Both Jason and Josh are Medicare Set Aside Consultants Certified by the International Healthcare Commission, have served as MSP compliance expert witnesses and have authored numerous articles on Medicare Set Asides. Collectively, they have handled over 10,000 workers’ compensation cases and have taught over 500 hours of CLE education on settlement planning, Medicare Set Asides, public benefits protection and other complex issues impacting the value of workers’ compensation matters.
[1] High dollar WCMSAs are typically funded by way of a structured settlement that is only payable for as long as claimant is alive or for the claimant’s life expectancy. MSAs can typically be funded at a present value cost of 40%-60% less than the cost to fund the lump sum MSA amount.
B Josh Pettingill
Evidence Based MSAs (EBMSAs) have taken the workers’ compensation industry by storm the past several years. It is imperative for workers’ compensation attorneys to understand how EBMSAs can impact both the settlement value, as well as your clients’ benefits post-resolution. EBMSAs can be a cost savings mechanism in resolving a workers’ compensation claim. However, using an EBMSA to resolve a claim is not without risks.
EMBSAs are prepared based upon clinical guidelines and trends in medical research to project future Medicare covered expenses. This is a logical approach one would think. However, The Centers for Medicare and Medicaid Services (CMS) takes a different position as it relates to their approved methodology for preparing an MSA with a future cost projection.
Three Key Components of Evidence Based MSAs
There are numerous MSA practitioners and companies who offer EBMSAs for workers’ compensation cases. There are three key components to an EBMSA that should be noted:
- The EBMSA utilizes a pricing strategy that does match up to the CMS approved pricing guidelines when pricing a WCMSA[1].
- The EBMSA mandates professional administration for the claimant for a specified term[2].
- The EBMSA assumes the settlement parties will not seek CMS approval of the WCMSA.
Real World Pricing Strategy
There are two components of a Medicare set aside: prescription drugs and medical items/services[3]. The largest part of an MSA is usually prescription drugs. On average, prescription drugs make up 65% of the total MSA amount from a dollar standpoint. EBMSAs tend to be priced the CMS approved way as it relates to medical items and services. However, as it relates to prescription drugs, there is massive dichotomy in the approach for pricing. Specifically, CMS requires that any recommended drugs be allocated for the life of the claimant/applicant[4]. Whereas, EBMSA uses period certain durations (shorter timeframes) based on supporting medical evidence.
The Pros & Cons of an EBMSA
The cost of prescription drugs and their inclusion in an MSA can be one of the primary barriers to settlement of a workers’ compensation case. Since EBMSAs do not use full life expectancy to calculate future prescription drug costs, there can be a massive cost differential when compared with a non-evidence based MSA. One could argue that Medicare is being purposely being defrauded by a substantial amount by not using the appropriate pricing strategy for medications. However, an argument could also be made that pricing the MSA this way is more consistent with the “real world” approach; more importantly, the medical evidence supports this approach. It is not realistic to price medications for the lifetime of an injured worker. In fact, extended use of certain medications can contribute to a reduced life expectancy.
EBMSAs frequently have mandatory professional administration as a requirement to use them. The argument for the EBMSA is that the MSA funds will always be spent appropriately with a professional administrator. But the caveat is that the claimant/applicant must agree to use that company’s professional administration service. Unfortunately, that particular company may not always be the best solution for the injured party’s needs.
EBMSAs are not submitted to CMS which clearly is a pro but it has risks associated with non-submission. CMS approval of a WCMSA is always voluntary but recommended in order to have final closure. In other words, CMS approval provides the guarantee that CMS cannot come back years down the road and argue not enough money was originally set aside to consider their future interests. CMS approval is still the only way to have definitive peace of mind that your client is protected. One could even argue that there are malpractice risks for the claimant’s attorney if they rely solely on the carrier’s expert in determining the MSA amount using the evidence based method, while at the same time not getting CMS approval as part of the settlement process.
There are certainly benefits to an EBMSA such as reduced exposure to the employer/carrier which frees up other dollars to be used to resolve the claim. These companies claim that if CMS ever disagrees with the amount or denies something post-settlement that the claimant/applicant, as well their attorney, will be indemnified and held harmless. Also, the MSA company will either pay back Medicare if this were to happen or fight the claim that not enough funds were earmarked for the Medicare set aside.
Conclusion
As an attorney for injured workers, if you are presented with an EBMSA by the employer/carrier, you must consider the implications. We recommend obtaining an independent MSA analysis or medical cost projection to ensure that the EBMSA is an accurate reflection of the future medical costs. CMS has stated that the MSA is a claimant issue, not a carrier issue. If one chooses to accept the EBMSA, keep in mind that you are also relinquishing your ability to control the MSA process. As such, you are at the mercy of the employer/carrier’s expert for determining your client’s future needs.
An EBMSA is only one way to resolve a workers’ compensation claim. Synergy can help the injured worker and their attorney to not only save money but also maximize the recovery of the case. The last thing you want to happen is for CMS to return years later and disagree with the EBMSA amount because there was no CMS approval. Your client could find themselves in a situation whereby Medicare is denying coverage for accident related care. Such a situation could result in a legal malpractice case. Having a trusted partner to help take control of the MSA process, as well as guide you through the complex settlement issues, is imperative. To learn more about Synergy’s services for workers’ compensation settlements, visit our website by clicking HERE
[1] According to the WCMSA Reference Guide
[2] The duration depends on the product
[3] Durable equipment, medical services, items, etc.
[4] According to the WCMSA Reference Guide, “Reviewers (CMS) use the evidence in the records to determine if the proposal accounts for the reasonably probable future prescription drug needs. This includes the prescription drug history, the treatment notes, provider medication lists, and physician dispensing records.”
B. Josh Pettingill
There is mounting evidence that the Centers for Medicare and Medicaid Services (CMS) will establish formal guidelines for liability MSAs in the imminent future. Medicare Secondary Payor compliance related to future medical care is an issue that can’t be ignored but that doesn’t necessarily mean setting up a Medicare Set-Aside on every case involving a Medicare beneficiary. The following post will highlight several real-world case studies in order to educate plaintiff attorneys on how to eliminate or reduce any Medicare Set-Aside issues for liability claims.
Key Takeaways
- Medicare Secondary Payor Compliance is serious business and shouldn’t be ignored as evidenced by recent DOJ actions against personal injury law firms.
- There is no black and white solution as it relates to MSP compliance and futures.
- Plaintiff attorneys must control the MSA process if they want to avoid unwanted delays.
- A treating physicians’ attestation indicating the care is completed is the only CMS approved way to avoid an MSA.
- Plaintiff attorneys must be vigilant about the release language for their client’s protection of Medicare benefits.
Introduction
Most defendants have started to mandate, as part of the release language, that the plaintiff choose one of two below options for addressing Medicare’s future interests, without exception in return for payment of the settlement monies:
- Plaintiff agrees to get a letter from the treating doctor that, as of the date of settlement, all accident-related medical care has been provided/completed[1]. This is a viable solution to avoid any possible future denial of injury related Medicare covered services.
- Plaintiff agrees to do a Medicare Set-Aside and agrees not to bill Medicare for any future care related to the subject accident until the set-aside is exhausted.
To illustrate this point, below is an actual email (redacted) from a defense attorney to the plaintiff attorney that highlights such a tactic by the insurance carriers. This case involved a $15,000 global settlement on an auto accident. This email is a perfect example of what is becoming the norm for Medicare-eligible plaintiffs.
Dear Plaintiff’s Attorney,
I apologize for the delay in getting back to you. I have conferred with my client on this issue, and due to your client’s Medicare eligibility, my client is obligated under the laws previously mentioned to protect Medicare, which includes the treating physician certification requirement or doing a Medicare set aside. This is a legal obligation and therefore I am not authorized to remove these terms from the Release. The treating certification can simply be in the form of a letter that tracks the language in the CMS Memo.
Thank you,
Defense Attorney
Application
One could argue that most liability cases that settle for $15,000 or less do not fund future medicals when all damages are considered; therefore, there is no need to consider a liability set-aside for any case that resolves under $15,000. In the case example involving the email from defense counsel, the client had reached maximum medical improvement (MMI) and had completed all the accident-related care. The settlement was delayed for months before the attorney contacted Synergy for assistance because the attorney did not want to jeopardize his client’s Medicare benefits. Ultimately, Synergy was able to provide template language to the attorney for the treating doctor to specify that the care was completed at the time of the settlement. If the circumstances had been different and this plaintiff had required future care in this example, then the parties could have done an analysis of the future medical expenses compared to the net recovery to calculate the MSA amount. An MSA does not always involve getting a full report done with a comprehensive medical review; it simply means setting aside monies based on all the facts of the case. To avoid these types of delays post-settlement, one idea for attorneys to consider is to have consensus by the settlement parties on release language (including any/all Medicare language) prior to going to mediation. That way, there are no unwanted delays in receiving the settlement funds once the case had been resolved.
No Medicare Set-Aside
There are situations when a no-treatment attestation letter by a treating physician is not applicable whereby future medicals are not funded. This is a prime example: Synergy was retained on a policy limits case that resolved for a total of $500,000 whereby a husband and wife were hit by a drunk driver after leaving a restaurant. As a result of the accident, both became paraplegics. The past liens were greater than $1 million and the future damages exceeded $25 million. Even though the release language stated that it was a release for past, present and future damages, there were simply no monies leftover to fund any future medicals. In this scenario, Synergy was able to put together a “No MSA” letter for the plaintiff, indicating the same and that Medicare’s future interests were adequately considered. The file was documented to indicate why nothing was set-aside. The release language also memorialized that there were no settlement funds paid out for future medicals.
Conclusion
There is no black and white approach to addressing MSP compliance on liability settlements. Synergy has created a litmus test for attorneys to screen cases and to determine whether an MSA is an appropriate solution. To download that document, click here. Plaintiff’s counsel should insist on controlling the MSA process from start to finish as they are the ones who have legal malpractice risks and personal liability if, in fact, they fail to properly advise their client regarding the Set-Aside issue. Synergy frequently can justify why there is no need for an MSA or greatly reduce the MSA obligation. These savings are real dollars that go directly to the injury victim instead of Medicare.
Synergy provides no cost consultations to attorneys; please contact us if you have any questions that we can help you with at (877) 242-0022 or schedule a consultation here.
[1] On September 29, 2011, CMS issued a memorandum indicating there is no need for a liability Medicare Set-Aside and that its interests would be satisfied if the treating physician certified in writing that treatment for the alleged injury related to the liability insurance had been completed as of the date of settlement
To learn more about Liability Medicare Set-Asides MSAs Case Studies watch our educational video below.
B. Josh Pettingill
We frequently receive inquiries regarding workers compensation MSAs (WCMSAs) and whether it is possible to get CMS (Centers for Medicare and Medicaid Services) to re-review an MSA once an amount has already been approved. The good news is that it is possible. However, you only get one opportunity and certain criteria must be met to qualify. It is vital for claimant/applicant attorneys to audit their files to see which cases may be eligible.
For years, CMS only allowed a re-review of an WCMSA in two limited circumstances: 1) blatant errors and mistakes with the report or 2) omission of pertinent documentation from the submission. In many instances, the claimant’s medical condition may have improved considerably since the approval letter was issued. Accordingly, it was becoming cost prohibitive then for the carrier to resolve the claim if they must overfund an MSA that does not match the injured worker’s current medical condition.
However, CMS changed their position recently. There are situations where CMS will actually take the time to re-review the WCMSA. Per the Workers Compensation MSA Reference Guide, the following guidelines for the case must be met to be eligible for an amended review[1]:
- CMS has issued a conditional approval/approved amount at least 12 but no more than 48 months prior.
- The case has not yet settled as of the date of the request for re-review.
- Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.
Takeaway – an Amended WCSMSA Review is Possible in Certain Circumstances
If you have a case that was approved even a day beyond four years ago or less than a year ago, then you are stuck with the original approved MSA amount. As of this writing, there is still no formal appeal process for WCMSAs. But, at least you now have the option for an amended review in certain circumstances. Do not let an overinflated, CMS approved WCMSA be a barrier to resolving a workers’ compensation case. Whether it is the first time for CMS approval or an amended review, Synergy’s team of experts can help to ensure a timely settlement while maximizing the recovery.
In our next post, we will discuss Evidence Based MSAs, the implications of getting one and not submitting to CMS for review/approval. To learn more about Synergy’s Workers’ Compensation Medicare Set-Asides, visit our website.
[1] https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Reference-Guide-Version-2_9.pdf
In a personal injury case, Medicare set aside (MSA) arrangements can be confusing for both the plaintiff and the plaintiff’s attorney. Most personal injury attorneys don’t have the experience to coordinate MSA arrangements for their clients. A lack of experience and knowledge can lead to liability for the trial attorney involved in the case.
The Centers for Medicare and Medicaid Services (CMS) has not set any guidelines, regulations, or statutes defining the requirement for liability set-asides. However, Medicare is a secondary payer, as mandated by Federal law, and if any other insurer is available, Medicare will not pay the bills for a personal injury. Once the insurer becomes unavailable, Medicare will start to pay for medical costs. The CMS reviews LMSAs on a case-by-case basis, depending on the claim, the region’s bandwidth, and its leadership.
Does Your Client Need an MSA?
Considerations for a liability MSA need to begin as soon as the personal injury case starts. However, it’s difficult to decipher CMS communications regarding LMSAs. There are harsh consequences for clients whose attorneys do not make the right decisions for their needs. It could even lead to those clients not being able to access Medicare benefits later.
Even though there are no straightforward guidelines for liability MSAs there are some fundamental questions you can ask yourself to see if an MSA may be in your client’s best interest:
- Is your client eligible for Medicare benefits?
- Will your client need care in the future related to the accident?
- Does the case cover future medical payments?
If you can answer “yes” to all these questions, it’s time to consider an MSA for your client.
It’s important to document the case, especially when an MSA may be involved, including obtaining copies of your client’s insurance cards. Being upfront with your client about the reality of setting up an MSA can help manage their expectations of what will happen with the settlement after the trial.
Consulting with a knowledgeable settlement planner can take a noticeable weight off your shoulders. They are used to wading through the communications and updates of CMS and keeping clients’ best interests in view.
For more information about how to set up a Medicare set aside or to schedule a consultation, please submit our contact request form.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Utilizing a Medicare Set Aside for personal injury can be confusing without the help of an experienced settlement consultant from Synergy Settlement Services. Fortunately, our Medicare Set Aside (MSA) services help attorneys focus on the case at hand by allowing an experienced professional to handle the details of their client’s settlement.
It’s easy to get lost in the confusing world of settlement planning, which includes mass torts, pooled trusts, asset management services, and more, when you take on this burden alone, especially when you consider the broad range of personal injuries that can require Medicare Set Aside services. In this article, we will discuss seven common injuries that often require our settlement services.
Violent Acts in the Workplace
Conflict is common in the workplace. Sometimes, these arguments escalate to fights which can lead to serious physical injuries. Depending on the circumstances of the violent act, an MSA may be required.
Vehicular Accidents
If your client was injured while driving a vehicle, such as a bulldozer or a crane, for business purposes, they could be eligible for a workplace personal injury claim. This is especially true if their employer failed to utilize effective training programs to teach workers about safety.
Machine Entanglement
People who work in close proximity to machines should be aware of how to safely interact with these mechanisms. Machine entanglement occurs when clothing, shoes, or body parts are snagged by moving machinery.
Repetitive Motion Injuries
Repetitive motion injuries are extremely common and oftentimes undiagnosed. This type of injury occurs when workers perform the same action for too long. For example, typing or extensive computer usage can lead to muscle strain, vision problems, and even carpal tunnel syndrome.
Falling Objects
Workers, especially those in the construction industry, are often at risk of being injured by falling objects. Typically, this results in head injuries. Employers are responsible for maintaining safe workplaces and supplying workers with any appropriate protective gear.
Falling Personnel
On elevated project sites, the risk of workers being injured from a fall is increased substantially. Slip and fall accidents can be attributed to faulty equipment, poorly implemented safety precautions, or a lack of personal protective equipment. Falling personnel are a common source of workplace personal injury claims.
Overexertion
Overworked employees can easily injure themselves during actions like pulling, lifting, pushing, holding, carrying, or throwing objects in the workplace. Overexertion is one of the most common causes of workplace injuries that could require Medicare Set Aside services.
If your client is collecting a settlement for a workplace injury, regardless of the type of injury, Synergy Settlement Services is prepared to offer our services.
For more information about a Medicare Set Aside for personal injury or to schedule a consultation, please submit our contact request form.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
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