MSA Common Sense
Many in the Medicare Set-Aside (MSA) industry are offering an "alternative approach" to MSA compliance. It seems all of these alternative approaches being offered forego the CMS recommended but not required MSA submission process. I want to look at one of these approaches which is being sold by one proponent as being as good or better than the traditional approach of seeking CMS review of the MSA proposal when review thresholds are met.
This alternative approach has been coined the "legal opinion". One proponent of this approach states "you gain all the same benefits you get from CMS approving the WCMSA". The proponent doubles down on this opinion by indicating those benefits include "complete risk transfer on the future medical issue". But those statements simply do not pass the common sense test. CMS is the entity who issues the MSA approval letter when a case is submitted for their review. CMS is the same entity with the task of ensuring Medicare remains a secondary payer when payment has been made under a WC plan. Given those two indisputable facts there is no possible way that a legal opinion offers the same benefits as a CMS approved WCMSA.
And how a legal opinion provides a "complete risk transfer on the future medical issue" is beyond me. CMS is going to come knocking on the primary payer's door, not the attorney who gave the "legal opinion", if they feel Medicare's interests were not adequately considered in the WC settlement. There would be no better way to greet them than with a CMS approval letter if that day ever comes. Asking that attorney's malpractice carrier to defend and/or indemnify you in that situation is a last resort at best.
Let me add that nowhere in the Medicare Secondary Payer (MSP) statute or WCMSA guidelines does it state or even imply that MSA analysis by an attorney is required or even preferable to the same analysis from any other professional. You will not find the term Medicare Set-Aside in the MSP statute. So the rationale that an MSA analysis is a "legal opinion" and best suited for an attorney is questionable at best.
But if your WC case has something unique about it based on the applicable WC laws that limits your liability for future medical benefits and you feel the need for a legal opinion on that issue, the best person to offer that opinion is the WC defense attorney handling your cases in that jurisdiction. They are best suited to provide the legal opinion citing the applicable WC law limiting your liability for medical treatment on the claim. To ask an MSA vendor's attorney to offer the same opinion makes no sense when that attorney is likely tasked with trying to comprehend the different WC laws of the 50 states and multiple federal WC statutes. In fact, give me the handling adjuster's knowledge of that specific jurisdiction over that MSA attorney's knowledge in that jurisdiction.
Best practice MSA compliance does not require genius. It does require common sense. I plan to address other alternative MSA approaches in the future that also include faulty claims. Stay tuned.
Medical-Legal Solutions
8yConditional Payments are quantifiable. Therefore, It is measurable who is responsible for all or a portion of the paid costs. However, this is not the case with future care. Future care costs can best be determined through data analysis of medical care, and treatment. Data is power! It will be difficult for CMS to dispute future care costs, as long as a reasonable and reproducible process is used to forecast that exposure. For this reason, it is less likely that CMS will put their efforts into challenging future care arrangements in the absence of bad faith. MSA Professionals who forecast future care differently for claims submitted to CMS for review and approval vs. those claims which are not submitted may pose a risk to primary payers because it is discoverable that different methodologies are used, and hence a deliberate attempt to shift the burden to Medicare.
Retired at Self-Employed
8yJeff, did anyone at the "Masters Class" ask CMS why they continue to deny the existence of 42 CRF § 411.47 (“Apportionment of a lump-sum compromise settlement of a workers' compensation claim”) to WC settlements? One could argue that the Patel memo (based on 42 CFR § 411.46 and the predicate for the MSA industry) is based on CMS’ interpretation of the wrong regulation. But once you jump into CMS' sandbox, you are bound to play by their rules. David Farber's observation (in the form of a question) that there has never been a claim made against a primary payer is significant. Currently, under CMS's interpretation of their regulations, their only remedy is to withhold benefits from the injured worker until those benefits equal the amount of the settlement. I believe there are valid alternatives to getting into CMS's sandbox. I believe these alternatives should explored and encouraged. But they need to be viewed within the context of state WC statutes; some which require an adjudication of future medicals on the merits as a condition of a commutation/C&R. If I were the injured worker, would not want to rely upon an attorney’s or providers’ E&O carrier's duty to bail me out. After all, E&O policies are design to protect the attorney or provider and not me; albeit that may be the consequence of their defense. Caveat emptor has never been so important for injured workers and their counsel.
Managing Partner MAPS Medical
8yAt today's MSP Master Class in Dallas CMS officials spoke to the potential risk for the claimant/beneficiary with an alternative MSA solution that does not include CMS submission. Those risks include Medicare not recognizing the settlement and denying future payment for that work related condition (per CFR 411.46 (b)(2). Another risk mentioned was Medicare looking to the claimant/beneficiary to exhaust the "TPOC amount" rather than just the approved MSA amount. Although many in today's crowd may consider these risks as remote and miniscule that was not the message delivered by CMS officials. A "one size fits all" approach may not be correct for all primary payers but today's comments from CMS officials reinforce that CMS submission when review thresholds are met is the safest way to ensure Medicare compliance for all parties involved in the settlement.
FDA Life Sciences Partner, Healthcare Lobbyist and Litigator
8yJeff. Are you aware of Medicare ever bringing a claim against a primary payer for not taking medicare's interest into account?
Houston attorney defending personal injury, workers’ compensation, maritime, and insurance matters, with experience in database management, legal process and workflow automation using AI/VBA/Python.
8ySometimes, a legal opinion letter simply attempts to transfer the risk to your attorney, and it's E&O carrier. In light the recent direct action lawsuit by a Medicare provider under the Secondary Payer Act, the only protection it may add is a co-defendant to a later lawsuit.... : (