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.
March 2, 2020
The 11th Circuit Court of Appeals weighed in on the question of whether the Medicare statute, which provides a three-year timeline to the government to request repayment, applies to a private entity providing Medicare benefits (Medicare Advantage plans). The Court’s answer is that the claims filing provision does not bar a claim and that the timeline is not a precondition to filing suit.
Basic primer on Medicare. When Medicare pays for accident-related treatment, it is entitled to be paid by the primary payor. Its payment is made as a conditional payment, conditioned on repayment when other funds become available. In the case of an accident, that could be medical payments coverage, bodily injury coverage or an uninsured/underinsured coverage. If Medicare seeks reimbursement and is denied, the United States can sue the primary plan to recover its payment. If the cause of action is successful, Medicare can be awarded double damages.
Section 1395y(b)(2)(B)(iii) contains a three-year statute of limitations that requires the government to sue within three years of the date that Medicare receives notice of a primary payer’s responsibility to pay.
(iii) Action by United States
… An action may not be brought by the United States under this clause with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made pursuant to paragraph (8) relating to such payment owed.
(vi) Claims-filing period
Notwithstanding any other time limits that may exist for filing a claim under an employer group health plan, the United States may seek to recover conditional payments in accordance with this subparagraph where the request for payment is submitted to the entity required or responsible under this subsection to pay with respect to the item or service (or any portion thereof) under a primary plan within the 3-year period beginning on the date on which the item or service was furnished.
A few sections down lies § 1395y(b)(3)(A), which provides a private cause of action available to Medicare beneficiaries and other private entities if a primary plan fails to provide primary payment or reimbursement. This section does not contain a statute of limitations.
(A) Private cause of action
There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).
This is where the Medicare Advantage plan enters. In 1997, Congress enacted Medicare Part C or “Medicare Advantage” program (also known as MAP, Med A, MA, MAO). These plans are administered by private insurance companies that provide Medicare benefits for fixed fees from the Center for Medicare and Medicaid Services. 42 U.S.C. § 1395w-22(a)(4) states that a Medicare Advantage plan may charge a primary plan when a payment “is made secondary pursuant to section 1395y(b)(2).” This established that Medicare Advantage plans can sue under the MSPA to recover from primary plans if they do not pay. These plans must use the MSPA’s private cause of action versus the government cause of action.
In the MSPA Claims v. Kingsway Amigo, 2020 U.S. App. LEXIS 4554 (February 13, 2020), the Court found that there is nothing within the statutory language or structure to suggest the Medicare Advantage plan must comply with the claims filing provision as a prerequisite to seeking reimbursement. The decision starts with a warning as the second sentence of the opinion acknowledges that the case “turns on a careful examination of the often-convoluted rules governing the federal Medicare program.” The court painstakingly reviews the statutory structure of the Medicare statute even with a little levity; the opinion states “Okay, time for a deep breath and a summary.”
The Court found that the dependent “notwithstanding” clause and the permissive term “may” in the actual text of the MSP claims filing provision means that Medicare Advantage plans are not required to bring suit as a prerequisite in the 3-year period. Specifically stating, “[w]ords in a statute must be interpreted according to their ordinary meaning and “may” cannot, by any rendering, mean “must.” The Court finds that when a statute uses the word “may,” it “implies that what follows is a permissive rule and that it does not create a separate bar that private Medicare Advantage plans must overcome in order to sue.
The importance of this decision can’t be overstated. With no statute of limitations, the private cause of action provisions that MAO’s have been using so aggressively to recover are even more powerful. Insurers are becoming increasingly more fearful of failure to repay MAOs and this can lead to delays in resolution of a settlement when there are potential Medicare conditional payment or advantage plan liens. In addition, personal injury lawyers can be the targets of these types of private causes of action as well which in turn gives trial lawyers another thing to worry about when it comes to lien resolution. Because of these sorts of issues, now more than ever, insurers may want to directly pay MAO liens back directly and demand indemnification.
To avoid these types of scenarios and alleviate concerns, work with Synergy as your partner in bringing to resolution all liens asserted by Medicare Advantage plans, Medicare supplement plans and traditional Medicare outside of litigation. We also offer lien reduction services for many other lien types including ERISA, FEHBA, Military, Disability and Medicaid.
February 13, 2020
An inquiry that Synergy receives on a regular basis involves a Medicare-eligible claimant who has both a workers’ compensation and a third-party liability companion case. The third-party liability claim has resolved and now the workers’ comp carrier has a lien against the liability claim for the amount that has been paid out for past medical/indemnity benefits. The question becomes: Is an MSA necessary and does that get handled through workers’ comp, liability or both?
The short answer is it depends. It depends on how the cases are settled. In some states, the workers’ comp carrier may be granted what is known as a “holiday” from paying any future medical expenses.[1] Specifically, the holiday can oftentimes be a barrier to washing out the workers’ comp medical claim since the carrier will not have to pay for medicals again until the total amount the claimant received from the third-party case has been spent.
In some states, the lien is negotiated as a percentage based on what the full value of the case is compared to what the client is going to net in their pocket. Once the lien is negotiated, comp is then entitled to an offset for future medical benefits paid on behalf of the claimant. For example, let’s say that the liability case settled for 25% of the estimated full value, and the comp carrier agreed to a waiver of their lien in exchange for a compromised sum. In this example, going forward, the claimant would then be responsible for paying 25% out of pocket towards the cost of their medical care until the comp claim has resolved. It should be noted, if the workers’ comp lien is fully waived at the time of the third-party settlement, then the carrier will not be entitled to an offset on future benefits.
Implications for the Claimant
In both scenarios, if the claimant were to attempt to bill Medicare for accident-related care post-settlement, they would get denied because workers’ comp still has an ongoing responsibility for medicals (ORM).[2] There is the possibility that the claimant could seek medical benefits through either a Medicare Advantage Plan or through private insurance, but these policies typically exclude coverage if there is a workers’ compensation case. So, neither of these solutions would be appropriate. A set-aside must be a consideration but what are the practical implications going forward?
MSA Issue on Holiday States
If the medical claim is not closed out, then the claimant will be forced to pay out of pocket for any accident-related care until the holiday amount has been exhausted from the third-party settlement. Those out of pocket expenses could be much greater than any MSA obligation. Whereas if the workers’ comp claim was resolved, the claimant would then be able to use Medicare, Medicare Advantage, or private insurance coverage. In those states that are entitled to the holiday, the claimant should strongly consider closing out their medical claim with workers’ comp in order to be able to use private health insurance and/or establish a Medicare Set-Aside with the intent to use Medicare for accident-related care once the MSA has been spent appropriately.[3]
MSA Issue on Non-Holiday States
If the workers’ comp claim remains open in those states that are entitled to an offset on future benefits, the claimant would be responsible for paying 25% out of pocket indefinitely for future medical care related to the workers’ comp claim. One way to address this issue is using the settlement proceeds from the third-party cases, the claimant could buy a structured settlement annuity to cover the out of pocket differential.[4] That way, there are guaranteed monies available to take care of the claimant’s out of pocket expenses. If the workers’ comp piece ultimately settles, then the carrier will fund the MSA as part of the terms of any settlement. If that event were to occur, the claimant could use the structured settlement payments for anything instead of medical expenses.[5]
Conclusion
Finally, if there is a global resolution of both the workers’ comp and the third-party liability case simultaneously, then the MSA should be established through the workers’ comp side since there are formal guidelines in place for workers’ comp cases. That way, there are no unwanted delays in getting the case to the finish line. If the workers’ comp case meets the Centers for Medicare and Medicaid’s review thresholds for workers’ compensation MSAs, then attorneys must decide whether to submit for CMS approval. All parties to a workers’ comp or liability settlement must take into Medicare’s interests when resolving a claim.
[1] This is a credit for future benefits.
[2] Medicare will have the ORM information in their system and the claimant’s common working file which will flag/deny anything related to the accident related care.
[3] The exception to this would be if the claimant was receiving attendant care benefits or significant amount of care that is not covered by Medicare or private health insurance.
[4] That structured settlement would function as an informal “MSA” since workers comp pays 75% and the claimant pays the 25% balance. It is almost like a forced MSA on the third-party case.
[5] This assumes a WCMSA is set up and there are funds available to use for medical expenses.
B. Josh Pettingill
For over a decade, there has been episodic activity from Centers for Medicare and Medicaid Services (CMS) on Liability Medicare Set-Asides (LMSAs), including but not limited to, policy memorandums, Medicare Learning Network announcements, a notice of proposed rulemaking with subsequent withdrawal, an advanced notice of a notice of proposed rulemaking as well as the hiring of a new review contactor. As of the date of this update, we are still without formal policies for how to properly consider Medicare’s future interests in liability claims. But is it time for trial attorneys to start worrying? This brief post will provide some suggestions to be well-prepared for formal guidelines on LMSAs.
Key Takeaways
- Medicare Secondary Payor (MSP) compliance is serious business and should not be ignored.
- Plaintiff attorneys must establish an internal screening process for their liability cases involving Medicare beneficiaries.
- Plaintiff attorneys must be vigilant about MSP compliance from the start of the case.
- MSP compliance starts at the intake of the case.
If your firm does not have an internal process for auditing Medicare-eligible plaintiffs when you undertake representation, then you probably should be worried. If you are on the sidelines waiting around for formal guidelines to be implemented before you start being proactive on the issue, you are doing a disservice to yourself and your clients, as well as putting yourself at risk of being made an example by CMS for non-compliance with the MSP statute. This is so because the Department of Justice has already sued two different personal injury firms over non-compliance with the MSP related to conditional payments (see previous post HERE). You could also be setting yourself up for a legal malpractice claim for failure to educate your clients on the need to properly consider Medicare’s future interests. The good news is that it is not too late; the below can help get you started on establishing a framework within your firm for handling cases with Medicare-eligible plaintiffs.
- Identify Medicare beneficiaries as soon as possible so you can stay ahead of the MSP compliance issues.
- Follow CMS guidelines for reporting and resolving conditional payments.
- Investigate whether the client has ever received benefits under a Medicare Advantage plan (MAO – Part C). If yes, make sure to resolve the lien as it can be “hidden” (see previous post HERE)
- Audit your files at the beginning of the intake process and group the cases into categories based on the injuries, potential future care, available coverage, and potential settlement value to determine which files might be candidates for formal MSA screening.
- Identify all forms of health insurance coverage and disability benefits upon intake of the case so you know what liens have to be resolved as well as whether Medicare’s future interests need to be considered.
- Determine at the onset if future medicals are claimed which will be a key determinant in whether a Medicare Set-Aside should be considered.
- Update your retainer agreement language to allow you to engage your own Medicare experts as a case cost to the client.
From what we have observed firsthand, Medicare is not regularly denying claims on the basis that injury-related care should be paid for out of an MSA account (read more HERE); however, as recently as last month, CMS indicated that change is imminent as it relates to liability claims[1]. Whether or not CMS ever provides formal guidelines on liability MSAs, trial lawyers must establish their own processes for screening and auditing liability case files. For more information about liability MSAs visit us at https://bk-0726.partnerwithsynergy.com/total-medicare-compliance/.
[1] This was mentioned at the National Alliance of MSA Professionals (NAMSAP) annual conference in Baltimore, Maryland.
Jason D. Lazarus, J.D., LL.M., CSSC, MSCC
In the past, trial lawyers never had to worry about whether Medicare would pay for their client’s future care post-settlement. There is cause for concern that this may not be the case in the future. Consider this scenario – you represent a current Medicare beneficiary in a third-party liability case. As part of the workup of the case, you determine the client will need future medical care related to the injuries suffered. This could be determined by either deposing the treating physician or by the creation of a life care plan for litigation purposes. Ultimately, you settle the case. Since the client is a Medicare beneficiary, the defendant will report the settlement under the Mandatory Insurer Reporting law as it is greater than $750.00 in gross settlement proceeds. The defendant puts some language into the release about a Medicare Set-Aside being the injury victim’s responsibility and that they can’t shift the burden. Everyone signs the release and settlement dollars are paid. The file is closed, then forgotten. But what if that course of action triggers a denial of future care by Medicare?
For many years this was not even a concern for trial attorneys and their clients. However, the risk of this occurring is now a very real possibility. In fact, last year, a personal injury victim got this type of notice of denial for injury-related care from Medicare. The service provided was hospital outpatient clinic services under Part B of Medicare. The bill was denied, based upon the notice, because Medicare said “you may have funds set aside from your settlement to pay for your future medical expenses and prescription drug treatment related to your injury (ies).” The denial was related to a 2014 personal injury settlement wherein the Medicare beneficiary was paid money as damages for future injury-related care. Medicare’s position that an injury victim can’t settle their case and shift the burden to the Medicare Trust Fund for injury-related care isn’t new. Medicare has stated this premise over and over. This is just the first time anyone has seen an actual denial.
So, the question going forward is whether this was an isolated denial or actually represents Medicare’s shift to active enforcement of the Medicare Secondary Payer Act’s central premise. While it may provide some comfort to think this is an isolated incident, the reality is that Medicare Set-Asides are clearly a top priority and on the radar for CMS. As noted before in previous posts, there is currently an OMB Rulemaking process going on related to the Medicare Secondary Payer Act and Medicare Set-Asides. The insurance industry, the plaintiff bar, and industry stakeholders are all bending CMS’s ear regarding a future process. It is expected that proposed regulations will be disseminated sometime in the fall of 2019. The question in the interim is, what do you do to protect yourself from a malpractice claim and protect your client from a denial?
Unfortunately, there is no cookie-cutter answer. It is a case-by-case analysis. In some instances, there may be an argument that future medicals aren’t funded at all by the settlement. In other cases, there might be an argument that a reduced amount of future medicals should be set aside to satisfy obligations under the MSP because the case settled for less than full value. There are just too many possibilities to give a simple one size fits all answer. However, what is clear, doing nothing has its risks. For example, the client who received the denial of care likely will face a lengthy appeals process within Medicare that must be exhausted before ever getting to step foot into a Federal district court. In that scenario, the client is going to have to decide between paying out of their own pocket for future care or waiting for the care until exhausting all appeals and prevailing over Medicare.
While the problem created for the client is a serious one if they are denied care, an equally scary proposition for the trial lawyer is their exposure for malpractice claims in this scenario. Let’s assume that the injury victim who got this denial letter was not properly advised of the risks of failing to set aside money, would the trial lawyer potentially face a suit for legal malpractice? The answer is most likely they would. There could be all sorts of arguments made about whether they fell below the standard of care, but in the end, this is a known issue and one that is of the law. Worse yet, a trial lawyer and his/her firm could have Medicare breathing down their necks. While we haven’t see any instances of Medicare pursuing a law firm over failing to set up a Medicare Set-Aside, there are recent examples of law firms being pursued by the Department Of Justice (DOJ) related to other aspects of the MSP and failing to have a process internally to ensure compliance with the MSP. As part of a recent 2019 settlement after the DOJ brought action against a Maryland personal injury law firm, the firm agreed to pay $250,000 to resolve MSP claims and also agreed “to (1) designate a person at the firm responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance.” This was the second such settlement in a little over a year.
With these kinds of risks at stake, why do personal injury firms take their chances with the potential for denials of care, malpractice actions and worse yet government action? The answer is pretty simple, there is a lack of clarity of information and education about responsibilities under the MSP by Medicare. It falls upon industry stakeholders to try and make all the parties who are involved in personal injury lawsuits aware of these issues and how to effectively deal with them. So then the question is how do you make sure you are totally Medicare compliant?
Realizing there isn’t a definitive answer related to set-asides, we do have some recommendations:
- Put into place a method of screening your files to determine those that involve Medicare beneficiaries or those with a reasonable expectation of becoming a Medicare beneficiary within 30 months.
- Contact Medicare and report appropriately the settlement to get a final demand.
- Audit the final demand and avail yourself of the compromise/waiver process for conditional payments.
- Consult with client and explain the possibility of loss of future benefits without a Medicare Set-Aside so that an informed decision can be made about available options to consider Medicare’s future interests.
- Identify any potential Part C/MAO liens and resolve those as well.
Start early and do not let the defendant-insurer control the Medicare compliance process. At the outset of your case you have to confirm disability eligibility with Social Security and get copies of all insurance as well as government assistance cards. Make sure you understand who is potentially Medicare eligible such as those who are on SSDI, those turning 65, someone with end-stage renal disease (ESRD), Lou Gehrig’s disease (ALS) or a child disabled before age 22 with a parent drawing Social Security benefits. Collaborate with the other side regarding what is being reported under Mandatory Insurer Reporting laws. Be active in mandating the proper ICD codes to be included in the release to make sure reporting is accurate.
If a client is a Medicare beneficiary, then evaluate with the client the possibility of a set-aside. Discuss with competent experts the proper steps for MSP compliance. Properly word the release if a set aside is being used to make sure the client doesn’t get saddled with inappropriate language or lose itemized deductions. Appropriate planning will avoid a bad outcome.
Medicare beneficiaries must understand the risk of losing their Medicare coverage should they decide to set aside nothing from their personal injury settlement for future Medicare-covered expenses related to the injury. Properly educating the client is key to ensure an informed decision can be made relative to these issues. Beyond education of the client, the most critical issue becomes how to properly document your file about what was done and why with regard to MSP compliance. This part is where the experts come into play. For most practitioners, it is nearly impossible to know all of the nuances and issues that arise with the Medicare Secondary Payer Act. From identifying liens, resolving conditional payments, deciding to set money aside, the creation of the allocation to the release language and the funding/administration of a set-aside, there are issues that can be daunting for even the most well informed personal injury practitioner. Without proper consultation and guidance, mistakes can lead to unhappy clients, or worse yet, a legal malpractice claim.
B Josh Pettingill
Appropriate settlement language can make a significant impact on the total amount of the workers’ compensation settlement, as well as dollars that the injured worker receives. This brief article will provide plaintiff/applicant attorneys with the requisite settlement language to maximize the workers’ compensation recovery, as well as protect their respective firms and clients.
Since the insurance carrier is cutting the check to resolve the workers’ compensation case, they may potentially have leverage to dictate the terms of the settlement. Some plaintiff/applicants’ attorneys may – agree to or overlook certain critical provisions of the settlement to expedite the resolution. Below are the key areas to focus on when drawing up a mediation, or settlement agreement to ensure a timely resolution, as well as maximize the recovery.
Medicare Set-Aside
Make sure to include an all-inclusive figure that encompasses Medicare-covered items, non-Medicare-covered items, and indemnity. Oftentimes, there are ways to get the MSA amount lowered due to the errors by the carrier’s MSA expert or through funding with a structured settlement. Any savings on the MSA can go directly in the injured workers’ pockets. Do not ever agree to terms that suggest some fixed amount PLUS the MSA. If that were to happen, then any savings on the MSA would go the carrier and not the claimant/applicant.
Structured Settlement
There must be language that allows the injured worker the option to place a portion of the settlement proceeds into a structured settlement. If not, some carriers may refuse to fund a structured settlement at a later time. This also allows for time for a qualified settlement consultant to meet with the injured worker to develop a proper settlement plan. Furthermore, you should include verbiage that states any structured settlement shall be brokered or co-brokered by Synergy Settlement Services, or XYZ Plaintiff Structured Settlement Company.
Funding the Agreement
Language should also be included about paying the settlement monies in a timely manner and funding any structured settlements expeditiously. These could be provisions for extra attorney fees, as well as penalties and interest for failure to do so. For example, this could be based either on a certain number of days after CMS approval or approval by the judge of compensation claims.
Continuation of Benefits
Attorneys for the injured worker should include language that medical and indemnity benefits will stay intact for a set time period or until the settlement checks have been issued. That way, the injured worker does not lose out on any benefits and there is no gap in coverage. This can be life-threatening to catastrophically injured workers if they are not able to receive ongoing medical care.
Conclusion
These are just a few of many issues that should be addressed in the settlement/mediation agreement. Other topics include reversionary clauses, CMS approval of the Medicare Set-Aside and what happens if CMS comes back with a larger suggested MSA amount than what was submitted. Settlement language can either make or break a settlement. You need to have a qualified settlement consultant to assist with these complex issues. Synergy attends mediations at no cost to you or your client and offer a number of services to attorneys for workers’ compensation claims, liability claims, medical malpractice and more. Ask us today how we can help protect your law firm firm/your client, maximize the recovery of a workers’ compensation case and make your firm more efficient.
To learn more about Synergy’s Workers’ Compensation Medicare Set-Asides, visit our website.
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.
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