February 28, 2022
There has been much discussion in the Medicare Secondary Payer (MSP) compliance industry over the addition of Section 4.3 to the revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.5 (Guide) that was issued on January 10, 2022 by the Centers for Medicare and Medicaid Services (CMS). This controversial Section addresses CMS’ view of non-submitted Medicare Set-Aside (MSA) proposals. The provision states:
A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.
As a matter of policy and practice CMS will deny payment for medical services related to the WC injuries or illnesses requiring attestation of appropriate exhaustion equal to the total settlement less procurement costsbefore CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.
Although CMS has always taken the position that in the absence of a CMS approved and properly exhausted WCMSA, it “may” refuse to pay future injury-related medical expenses until the entire settlement is exhausted, the language used in Section 4.3 is troubling. It is inconsistent with other statements in the Guide as well as the agency’s own regulations (42 C.F.R. § 411.46).
Section 1.0 of the Guide clearly states that “there are no statutory or regulatory provisions requiring that you submit a WCMSA proposal to CMS for review.” Since CMS review of a WCMSA proposal is voluntary, Section 4.3’s language that CMS will deny payment for injury-related medical expenses up to the total settlement amount less procurement costs as a matter of policy and practice is an overreach by CMS. Furthermore, this view creates a presumption that any non-submitted WCMSA is shifting a financial burden to Medicare without providing a method to rebut this presumption. It also overlooks the fact that CMS does not provide for a review of the cases that do not meet CMS’ internal workload review threshold for submissions.
Section 4.3 also points to 42 C.F.R. § 411.46 as general support for CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. This reference however fails to address 42 C.F.R. § 411.46(d)(2) which discusses compromise settlements. This section states: “If the settlement agreement allocates certain amounts for specific future medical services, Medicare does not pay for those services until medical expenses related to the injury or disease equal the amount of the lump-sum settlement allocated to future medical expenses.”
The changes to the Guide have caused some parties to re-evaluate the pros and cons of entering into a settlement with a non-submitted WCMSA. This concern may have also been heightened by the circulation of a January 13, 2022, letter from CMS’ RO-9 Customer Service representative to a claimant in response to CMS’ receipt of notice of a workers’ compensation settlement that included funds for a non-submitted WCMSA. The CMS letter referenced portions of Section 4.3 of the Guide.
In a possible response to the industry’s concern about the addition of Section 4.3 to the Guide, CMS held a webinar on February 17, 2022, to discuss a variety of WCMSA topics. CMS’ representative, John Jenkins explained that Section 4.3 was added to the Guide to “clarify” CMS’ position on non-submitted MSAs. He advised that that when CMS reviews and approves a WCMSA, the marker in the Medicare beneficiary’s Common Working File (CWF) is fixed at the amount of the CMS determined WCMSA as opposed to the net settlement. Once the CMS determined WCMSA is properly exhausted, Medicare will pay as the primary payer for any additional injury-related care. On the other hand, whenever CMS becomes aware of a settlement that includes funds for a non-submitted MSA, a marker is placed in the Medicare beneficiary’s CWF reflecting the total value of the settlement less procurement costs and conditional payments. The impact of this marker is that injury-related claims may be denied until CMS removes the marker that is set at the net settlement amount. Medicare becomes aware of the existence of non-submitted MSAs when they are provided with MSA administration attestations and settlement documents. Jenkins advised that CMS does not use the Section 111 data to identify settlements that are not submitted to CMS for review. This author presumes this is due to the voluntary nature of CMS review of WCMSA proposals. Jenkins confirmed that Section 4.3 would apply as of January 11, 2022.
The impact of Section 4.3 will be felt at the time that a non-submitted WCMSA is exhausted, and Medicare is presented with an injury-related bill for payment. This will occur earlier when the non-submitted WCMSA is funded with a structure. When Medicare denies a bill, the Medicare beneficiary or their representative will have the opportunity to appeal the denial through the administrative appeal rights. The basis for the appeal would be the proper exhaustion of an objectively reasonable and defensible MSA that was prepared at time of settlement.
Jenkins also used the webinar to explain the projection methodology used by the Workers’ Compensation Review Contractor (WCRC) when evaluating a WCMSA proposal. Jenkins stressed the all-important need to protect Medicare from ever being presented with any injury-related bills. This is done by assuming the worst-case scenario when it comes to the need for possible future injury-related treatments. The fact than an individual has discharged themselves from any further injury-related treatment in the years prior to settlement is irrelevant when it comes to estimating future injury-related treatment. After all, it is possible that he may return for care. Similarly, an individual who is unable to move forward with an injury-related procedure due to co-morbid conditions, might get over the co-morbid conditions in the future and should have an MSA pay for the procedure. Jenkins also touched on the need to submit settlement documents in order to finalize a CMS approved WCMSA and addressed questions regarding the amended review timeline and other miscellaneous MSP compliance matters.
There is no doubt that Medicare is a secondary payer when “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State . . . .”(42 U.S.C. § 1395y(b)(2)(A)(ii), § 1862(b)(2)(A)(ii) of the Social Security Act, 42 C.F.R. § 411.20(2)(i)). It is also clear that Medicare is precluded from making payment for services to the extent that “payment has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile, or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” (42 U.S.C. § 1395y(b)(2)(A)(ii), § 1862(b)(2)(A)(ii) of the Social Security Act, 42 C.F.R. § 411.20(2)(ii-iii)). Given an employer’s responsibility in an accepted workers’ compensation claim to pay for ongoing injury-related medical services, both defense and petitioner attorneys generally have no issue with the funding of a Medicare Set-Aside in certain settlements to avoid cost shifting these expenses to Medicare.
The main issue with CMS review is that it often results in overfunded CMS WCMSA determinations since CMS consistently projects for worst case future treatment scenarios. If an individual’s injury-related treatment has plateaued and he has not received any medical treatment for years before the CMS submission, it is extremely unlikely that a workers’ compensation carrier would ever have to pay for any further treatment. If the WCRC and CMS looked to evidence-based medicine guidelines and a “reasonably likely to occur” standard of projection rather than a possible worst case scenario standard in estimating future injury-related care, the number of WCMSA submissions would significantly increase. This simple action by CMS could alleviate the decline in WCMSA submissions.
An additional issue with the CMS submission process is that it is often unduly burdensome with development letters being issued for information that is simply unavailable. These conditions spawned the birth of the non-submit MSAs. The non-submit MSAs were never intended to cost shift to Medicare as evidenced by the voluntary sharing of their existence with Medicare.
Section 4.3 of the Guide will impact a Medicare beneficiary when the non-submitted MSA is exhausted since the marker in the beneficiary’s CWF will reflect the total settlement less procurement costs. Although this will trigger a denial of additional injury related expenses a non-submit MSA that is projected based on evidence-based medicine guidelines and properly exhausted should withstand scrutiny. It is also unlikely to exhaust prematurely. It is unfortunate, however, that CMS is placing additional and unnecessary burdens on Medicare beneficiaries that have suffered workplace injuries. The addition of Section 4.3 to the Guide is deleterious to the injury victim. Rather than relying on the defense to address the MSA in a settlement, the petitioner/applicant attorneys should take charge of the process. Synergy Settlement Services is here to help you with a wide array of services.
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.
- 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.
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. 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.
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.
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.
 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.
It is a very common practice for insurance carriers to negotiate catastrophic workers’ compensation claims using offers in the form of both upfront cash to the claimant and a structured settlement. At a minimum, any case involving a Medicare set aside will typically be funded with a structured settlement annuity. AIG, Berkshire Hathaway, and USAA not only have property and casualty companies which ensure the employers, but they also have their own in-house structured settlement programs. If they can get the claimant to agree to a structured settlement with their own company, they may see additional financial benefits at the expense of the claimant. This is why it is imperative for attorneys who represent injured workers to have their own settlement consultant to ensure that if any settlement offers are made in the form of a structured settlement, that the claimant will, in fact, get the largest payout available from the highest rated company/companies.
In a recent case, we were asked to attend a settlement conference for a paraplegic where AIG was the excess carrier. There was a $550k WCMSA and the claimant was receiving 12 hours a day of attendant care. Every offer made during the mediation contained a structured settlement payout for not only funding the WCMSA obligation but also for the attendant care for the lifetime of the claimant. The case ultimately resolved for $3.0 million, of which $1.25 million was used to fund a structured settlement. What is important to note is that Synergy was able to hold AIG’s feet to the fire regarding what companies to use for funding the structured settlements. We were able to put nearly $88k in additional dollars directly in the claimant’s pockets in the form of a cost savings to purchase those same structured settlements since the employer/carrier’s structure broker was only quoting AIG. Prior to mediation, we had priced out the entire annuity marketplace and knew that New York Life and Pacific Life had the best rates respectively, not AIG. We were able to leverage that information for the benefit of our clients.
There is a difference between a settlement consultant/planner and a structured settlement “broker”. A broker sells structured settlement annuities while a settlement consultation/planner is an expert who provides a “settlement plan”. A settlement consultant should have an arsenal of options for the claimant to consider as part of any settlement plan. A structured settlement is generally the cornerstone of any settlement plan for a catastrophic workers’ comp claim, but it cannot be the only component for consideration by the injured worker. A qualified expert should also have extensive knowledge in dealing with trusts, Medicare Set-Asides, MSP compliance as well as public benefit protection. Most importantly, they should have the experience in assisting both claimants and claimant’s attorneys on catastrophic workers’ compensation cases.
At Synergy, we frequently attend settlement conferences/mediations either in person or by phone at NO COST to the attorney or injured worker. Our expert settlement consultants can quarterback the settlement process as part of a holistic settlement team approach. This approach may include utilizing our certified Medicare set aside specialists, certified financial planners, nurse allocators, economists, subrogation analysts, or public benefits attorneys to provide direct support before, during and after the negotiations. Don’t rely upon the employer/carrier’s “structure specialist”. Those “specialists” are brokers and are there to protect the employer/carrier, not the claimant and the claimant’s attorney. The earlier Synergy gets involved in the settlement process, the better equipped you will be to recover maximum available dollars. Call us today to show you how we can help increase the value of the case, protect your firm/your client and assist in getting catastrophic claims to the finish line expeditiously when dealing with CMS or Medicare eligible claimant.
Reprinted with permission from Roger Baron
In Durham v. Prudential Insurance, 2012 WL 3893604 (S.D.N.Y. Aug. 28, 2012), the Court was requested by the ERISA Insurer to uphold the “discretionary clause” of the SPD, but the plan document did not contain a “discretionary clause.” This Court applied the Supreme Court’s ruling in Cigna v. Amara and held that “the SPD cannot confer discretion. Accordingly, the appropriate standard of review is de novo.” This opinion provides as follows:
Prudential argues that the SPD should be considered in determining the standard of review. The SPD’s language is clear about Prudential’s discretion. However, the Supreme Court recently held that “statutorily required plan summaries (or summaries of plan modifications)”—like the SPD—may not be enforced as if they are the terms of the plan itself. CIGNA Corp. v. Amara,131 S.Ct. 1866, 1877 (2011).
Prudential suggests that the SPD nonetheless should be considered part of the Plan because it is contained in the same bound booklet as the Group Insurance Certificate. “However, an insurer is not entitled to deferential review merely because it claims the SPD is integrated into the Plan. Rather, the insurer must demonstrate that the SPD is part of the Plan, for example, by the SPD clearly stating on its face that it is part of the Plan. A contrary decision would undermineAmara.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1131 (10th Cir.2011). Here, the SPD expressly provides that it is not part of the Group Insurance Certificate.
To view the opinion, click HERE
Reprinted with permission from Roger Baron
In Durham v. Prudential Insurance, 2012 WL 3893604 (S.D.N.Y. Aug. 28, 2012), the Court was requested by the ERISA Insurer to uphold the “discretionary clause” of the SPD, but the plan document did not contain a “discretionary clause.” This Court applied the Supreme Court’s ruling in Cigna v. Amara and held that “the SPD cannot confer discretion.
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