Three Ways To Minimize A Liability MSA… and Maximize Your Client’s Quality of Life

Three Ways to Minimize a Liability MSA…and Maximize Your Client’s Quality of Life

It’s no secret. Your injured client deserves better. A whole lot better than a crummy hand dealt from the injuries that bring them to your door. What they deserve is a better quality of life. One that will take care of all their needs. And then some. Creating an income always seems to be at the top of the list. Or perhaps a van with a lift to help them get around. Or making their house more accessible.

Whatever the case, they need YOU to maximize their settlement to fund it. This means helping your client avoid or minimize the effect of those “others” who want to cut into their piece of the pie. Including Medicare. Do you risk your client not having any money left when the time comes to cover the eventuality of denied future medical bills? No. You decide to look into a Medicare Set-Aside (MSA) arrangement. Can they avoid it? Without the risk of Medicare denying payment? For otherwise covered services? Maybe. Maybe not. But if not, how much do they need to fund it with? As little as possible. And here’s why.

The 411 on Medicare and MSAs

Medicare is a secondary payer. As mentioned here, the Stalcup memo states that a settlement, judgement, or award must be exhausted for future services before Medicare can be billed. Exact text is below. This is the scenario you don’t want for your client. Especially, as paying denied Medicare bills could leave them with little or no settlement money.


how to minimize liability MSA


Using a portion of your client’s settlement to set up a voluntary MSA could limit the amount that future Medicare-allowable expenses can claim. The key? There’s no law that requires a certain amount. That’s right. Once your client exhausts this MSA amount, the law requires Medicare to pay your client’s Medicare-allowable, settlement-related expenses for the rest of their life. Thus, the less you set aside, the quicker this happens. And, the more settlement money your client keeps. The more settlement money your client keeps, the more it can maximize their quality of life. A simple solution. Now all you need to do is find someone who believes the same. Not to mention, someone who will minimize their MSA to the lowest reasonable and defensible dollar amount possible.

There are three ways to go about this. All of them are included in the routine services provided by the PLAINTIFF’S MSA AND LIEN SOLUTION.

The First Way to Avoid an MSA

The first step is to submit your client’s medical and billing records to us for a thorough audit and review. Our team of registered nurses must perform this critical step prior to creating any MSA Allocation Study. If the review uncovers that your client no longer receives treatment for the injuries or conditions that are the subject of the settlement, but their treating physician won’t put it in writing, we’ll provide a letter. This letter, backed by the authority of the government’s Benson memo, will state that no MSA is required. However, perhaps your client can’t avoid it. Also, perhaps a strategically-minimized MSA is still something they want to consider. Then we move on to step two.

The Second Way to Avoid an MSA

In this step our specially-trained RN and MSCC-credentialed nurses start preparing the MSA. Removing unrelated past medical and double billings, and then challenging unnecessary treatments in order to strategically minimize the MSA amount. Challenging unrelated past medical means getting rid of anything that doesn’t match up with the injuries or conditions that are the subject of the settlement. In other words, anything that doesn’t match the ICD-9 or ICD-10 codes associated with your client’s case. Then, they remove double billings and document and remove unnecessary future medical treatments. This process should significantly reduce the amount needed to fund your client’s MSA. But, we push it even further.

The Third Way to Avoid an MSA

Step three involves utilizing innovative strategies we’ve developed. These strategies reduce MSA funding requirements even more. But only for eligible clients. Part of this involves, at the discretion of the plaintiff attorney, using the procurement costs. Specifically, those expended in obtaining their settlement or verdict to further minimize the funding. Then, a final strategy. One that is so exclusive. In fact, we will only reveal it when you and your client come work with us. Before that, it’s all about what the right move is for you and your client.

Let Us Help

Can they avoid an MSA? Or not? Whatever you do, don’t make this decision alone. Sign up to receive our 2 Ways to Avoid an MSA article. Together, we can decide if one of these two ways can work for your client. And if it’s not possible to avoid an MSA? Then we’ll take you and your client through our proprietary process of minimizing their Liability Medicare Set-Aside. Ultimately, we’ll help you and your client create a strategically-minimized Medicare Set-Aside allocation. How minimized? One that comes down to the lowest possible, reasonable and defensible number. The end result? More settlement funds in your client’s pocket and less hassle for you, plus a quality of life that’s maximized to the fullest extent for your client.

A Punch After the Bell? Let The Plaintiff’s MSA and Lien Solution Fight Your Battle

A Punch After the Bell? Let the Plaintiff’s MSA and Lien Solution Fight Your Battle

There’s nothing worse than a late hit. Most likely, you never even see it coming. As experts at The PLAINTIFF’S MSA AND LIEN SOLUTION, we see these too often. You roll with the punches, win your case, and win a settlement for your client. Case closed, right? Wrong. Because that’s when the blow comes. Medicare starts denying payment of settlement-related bills because they know about your client’s settlement. In fact, they know everything, your client’s settlement amount, attorney’s fees, litigation costs and liens, and the ICD-9 or ICD-10 disease codes that are part of the case. The feeling that this is going to come back to bite you is unshakeable, but just you wait.

You didn’t report your client to Medicare, and your client didn’t report themselves, so how does Medicare know all of this? The only way your client would self-report is if they had become Medicare eligible post-settlement. In this case, a Medicare Secondary Claim Development (SCA) Red Letter and questionnaire would have compelled them to self-report. However, your client was Medicare eligible on or before the date of settlement. That only leaves one possible entity, the defendant. But what is their motivation to report your client’s settlement to Medicare? A big, bad, scary stick in the form of the Section 111 Medicare Secondary Payer Mandatory Report. The first part of the law is below:


Section 111 - The Plaintiff's MSA and Lien Solution


The language used in this mandatory Medicare liability settlement reporting requirement is disturbingly vague, leaving a lot of questions. What exactly are the defendants reporting about you and your client? How much information are they turning over, and when? The answers are alarming.  

What We Found

Here is what we discovered:

There are 196 data points within a Section 111 report, and three of them are critical to plaintiffs. They are:
(1) The date of settlement.
(2) The total amount of the settlement, otherwise known as the Total Payment Obligation To Claimant or TPOC.
(3) The ICD-9 or 10 codes that describe the injuries or conditions settled as part of your client’s case.

That’s it. Yet, if these three points aren’t alarming enough, just imagine what is in the rest of the data points – all 193 of them.
All of this information is reported at the date of settlement, meaning the date the settlement agreement is signed or the date that you have a court order approving the settlement if you need that. However, the responsible reporting entity (usually the defendant or the self-insured) that does not report a Medicare-eligible beneficiary’s liability settlement to Medicare is subject to $1,000 per day, per claimant penalty. The exact text is below:


Enforcement - The Plaintiff's MSA and Lien Solution


What Does This Mean?

What does all of this mean for your client? Once this information is in to Medicare, they file it away for future use. Basically, the expectation is that Medicare is now, from the date of settlement forward, secondary payer to the settlement your client has just received for all of the future Medicare-allowable, accident or incident-related expenses covering the conditions or injuries that were the subject of the settlement. Those ICD-9 and ICD-10 disease codes? Medicare matches those up with future medical bills. A match means payment is denied, and your client is left footing the bill until they can prove they have spent their TPOC on Medicare-allowable bills, after which Medicare covers everything for the rest of client’s life. Yet, if your client’s settlement money has already been spent, or otherwise allocated, it gets worse.

In the end, your client may be left with insufficient funds to both take care of denied payments and all of their other needs. And who are they likely to take it out on? Most likely it’s you. An angry phone call, a bar complaint, a malpractice claim? One or all of these could be your fate.

Let Us Help

Don’t let this happen to you. Put proper planning in place from the very beginning, and take control of your client’s Medicare issues with The PLAINTIFF’S MSA AND LIEN SOLUTION. What you don’t know about Medicare reporting and skillful use of strategically-minimized (and still voluntary) MSAs to avoid major client Medicare issues can affect your time, money and reputation. Let us help you through it, The PLAINTIFF’S MSA AND LIEN SOLUTION is here for you. Please visit our website at www.plaintiffsmsa.com or call us with any questions at 888-672-7583.

 

The Truth About Medicare Set-Aside Solutions—How What You Don’t Know Could Hurt You

The Truth About Medicare Set-Aside Solutions – How What You Don’t Know Could Hurt You

Medicare eligible. It seems that when a defendant hears these words, CMS automatically places a target on your client’s back and aims for the bullseye. We have seen this happen year in and year out. That is why we crafted the ability to provide attorneys with holistic Medicare Set-Aside solutions.

The label of being “medicare eligible” can lead to many un-truths. For example, defendants may claim that your client must create an MSA. Un-true. And this one: that defendants won’t be able to settle your case until they have proof that Centers for Medicare and Medicaid Services (CMS) has approved your client’s MSA.  Un-true. Or, that you must obtain a CMS letter stating that an MSA is not required in your client’s case.  Un-true, and not even possible. If any of this sounds familiar, it’s because defendants have been telling you un-truths about Medicare Set-Aside (MSA) arrangements for years.

The truth is that there is no legal requirement for MSAs at all in liability personal injury cases. CMS is not approving liability MSAs. Also, CMS will not provide a letter stating that an MSA is not required in a specific case. In fact, MSAs are entirely voluntary. A conclusion that arose again as a result of the Aranki vs. Burwell case. Yet, this outcome doesn’t mean that MSAs should be ignored. No. Far from it. That is why we have tirelessly sought to provide Medicare Set-Aside solutions that address these untruths to help your client make an informed decision. Part of making an informed decision is knowing the history of MSAs, and understanding why MSAs should not be ignored.

The History Behind Medicare Set-Aside Solutions

The Aranki vs. Burwell case evolved from a medical malpractice case that started in 2009 in Arizona. While a settlement had been reached, the defendants were still concerned about its finality due to the uncertainty of the MSA question. A lot was unknown about MSAs back then, and the defendants thought they would be liable without a court decision on its necessity. They demanded that the plaintiffs supply them with a letter from CMS stating whether or not the client was required to set up an MSA. With no immediate answer, the settlement was held up for three years. That is until a federal judge issued a pronouncement.

The judge stated that no federal law or CMS regulation requires the creation of an MSA in a personal injury settlement. It gets better. This judge was also asked to rule on forcing CMS to issue a letter as to whether or not this client needs an MSA. The ultimate finding being that there’s no federal law that requires it [CMS to issue a letter], so the court doesn’t see any standing here to even comment. No MSA required meant case closed, and this decision has acted as the ruling going forward. Yet, recent events indicate that a change could be coming soon.

Recent Developments

More critical insight is available in the 2011 Stalcup memo. A memo by Sally Stalcup, Regional Director of Region 6 for Medicare and CMS in Dallas. Her memo states that we must protect Medicare trust funds from payment for future service. Regardless of whether it’s Worker’s Comp. or liability. Surrounding language indicates that while CMS does not mandate a specific mechanism to protect those interests, and the law does not require a set-aside in any situation, that an MSA is the preferred method. Also of note is that any time plaintiffs can expect settlement funds to pay for future services, they can’t bill Medicare for future medical services until the exhaustion of these funds. Exact text is below:


Medicare Set-Aside solutions
Medicare Set-Aside solutions

 

After this memo, a clamor for guidance followed. With that, came an advance notice of proposed rulemaking. Issued on June 15, 2012. This advance notice, addressing liability cases, includes seven different options. All of them for handling the Liability Medicare Set-Aside issue. Especially alarming is option number four, below. It requires submitting a proposed MSA to CMS for review and approval.

Medicare Set-Aside solutions

Fast forward two years later to October 8, 2014. CMS withdrew The Project for Public Guidance. This advance notice was part of that project. Yet, expectations that CMS will resubmit at some point in the future still loom large. Added to these is another concern. Earlier, CMS published an update to a pre-solicitation for a workers compensation review contractor. It states that a Statement of Work (SOW) update will include the processing of Non-Group Health Plan (NGHP) Medicare Set-Aside arrangements. The anticipated award date? November 7, 2016.
Medicare set-aside solutions
All of these are signs that the U.S. Government has pivoted. Also, that they are looking once again at Medicare Set-Aside arrangements in liability personal injury cases.

What Comes Next?

Meanwhile, it’s important to decide whether, and which, Medicare Set-Aside solution is right for your client. That depends on their unique facts and circumstances. Also, whether they are a do-it-yourself or a do-it-for-you type. The law requires that we protect Medicare Trust Funds from payment for future services. That is true whether it is a Worker’s Compensation or Liability case. There is no distinction in the law. But how exactly will your client comply with the law? The old pick a number out of the air? Or a professional MSA Allocation Study? Then, next question, self-administer, or professionally administered?  If they go the do-it-yourself route, can you trust that they will follow through and put some amount of money from their settlement in some sort of account? And then what, just decide on their own which Medicare bills should be paid?

If and/or when Medicare comes around and questions how your client determined the amount of their account, demanding a detailed accounting of how they spent that money, how will your client answer? What if Medicare dislikes their answers, and decides to deny future benefits for a time? Will your client still be happy with the advice you gave them today? Whatever you do, don’t make these decisions alone. Take advantage of consultation services from The PLAINTIFF’S MSA AND LIEN SOLUTION.

Let Us Help

Sign up to receive our 2 Ways to Avoid an MSA guide. Together, we can decide if one of these can work for you. And if your client can’t avoid an MSA and wants professional help? Then we’ll create a custom, strategically-minimized Medicare Set-Aside allocation. One brought down to the lowest possible, reasonable and defensible number. The end result? More settlement funds in your client’s pocket. Less potential for future liability for you.

The PLAINTIFF’S MSA AND LIEN SOLUTION is here for you. Please visit our website at www.plaintiffsmsa.com or call us with any questions at 888-672-7583.

Watch Your Language! Crushing Words That Can Spell Disaster for Your Client’s Future Medicare Benefits

WATCH YOUR LANGUAGE! CRUSHING WORDS THAT CAN SPELL DISASTER FOR YOUR CLIENT’S FUTURE MEDICARE BENEFITS

It’s your worst nightmare. You thought you and the defendant were on the same page. That is, until you saw the settlement agreement. Taking a closer look, you realize you missed a very important block of language. That’s right. Language that releases the defendant from all liability, even if what they report to Medicare about your client is incorrect. Certainly this is not good. Incorrect information of any kind is a setback, but the worst would be incorrect ICD-9 or ICD-10 codes. And not those that are the subject of their settlement. Specifically, the kind that correspond with your client’s preexisting conditions. That kind of error could trash your client’s future Medicare benefits. It may be too late now for your past cases. But, how can you stop this in the future?

Something’s got to change. However, defendants and their insurance companies aren’t likely to be that something. Especially, if past behavior is any indication. Who can forget their reactions after the Section 111 Medicare Secondary Payer law update? The updated section states that the “responsible reporting entity” (aka: the defendant or the self-insured), which does not report a Medicare-eligible beneficiary’s liability settlement to Medicare is subject to $1,000 per day, per claimant penalty. When this came out, defendants grossly over-reacted. Telling you that Medicare Set-Aside Arrangements (MSAs) were required in liability cases. Also, that they wouldn’t settle your case until they had proof that Centers for Medicare and Medicaid Services (CMS) had approved an MSA. Not true. And how did they even get all of that out of the updated Section 111 law? Furthermore, how can you trust them now?

You Can’t Trust Defendants

A recent case of ours out of Orlando proves that you can’t. As you know, defendants want a lot of release language. They want your client to indemnify them. Hold them harmless. Even defend them from Medicare. Worse yet, they’ll do anything to get what they want. That includes hiding critical language in the middle paragraph of a settlement agreement. As they did in this case. That hidden language is what you see below in red:


Medicare Set Aside defendant release language


Frightening right? We caught this language upon document review and showed it to the plaintiff attorneys. They were outraged. Then, we managed to remove it from the settlement agreement and replace it with language of our own. Before it was too late. You, however, might not be so lucky. So what can you do about this? First, enlist the help of the expert team at The PLAINTIFF’S MSA AND LIEN SOLUTION. Secondly, use our recommended “Plaintiff Liability Medicare Set-Aside Defendant Release Language” template. Why?

Plaintiffs Need Their Own Language

Plaintiffs should want their own language in the settlement agreement. In fact, that is exactly what this is and why you need it for your Medicare-eligible beneficiary. First, we’ll do an MSA analysis on your client’s future Medicare-allowable expenses. Next, we’ll minimize it to the greatest extent possible. Then, we’ll give you our proprietary language to insert into the settlement agreement. This language acknowledges the defendant/self-insured’s duty to report. Not only that, it also holds them to a report of only the ICD-9’s/10’s and prescription drugs that we’ve identified. Problem solved.

What you don’t know about MSA pitfalls can damage your client’s future Medicare benefits. Let us help you avoid them.  The PLAINTIFF’S MSA AND LIEN SOLUTION is here for you. Please visit our website at www.plaintiffsmsa.com or call us with any questions at 888-672-7583.

Three Common Mistakes Plaintiff Attorneys Make When Attempting to Resolve ERISA Liens

THREE COMMON MISTAKES PLAINTIFF ATTORNEYS MAKE WHEN ATTEMPTING TO RESOLVE ERISA LIENS 

Face it. ERISA liens are no picnic. And resolving them isn’t getting any easier. In fact, it’s become more complex, especially with decisions like McCutchen vs. U.S. Airways. Cases like these have forever changed the way ERISA seeks reimbursement from plaintiffs who later receive a third-party settlement. So what do you do? If you’re an experienced plaintiff attorney, it’s been ingrained that resolving these liens yourself at no charge is simply part of your job and something you should do. However, you may be rethinking that approach. And if you’re a newer plaintiff attorney, you may already have decided that you are not going to deal with them. Regardless of who you are, experienced or newer trial attorney, the stakes are higher and mistakes are easier to make than ever. Here’s what you should know.

Your First Mistake

When attempting to resolve ERISA liens, one of the most common mistakes is not being honest with yourself. Ask yourself if you really care what your client pays back to his or her ERISA plan, or what their net settlement is. If your answer is “yes” on the outside, but you really don’t want to make a federal case out of it, answer the question “no.” Sure, you could press on for seven years like McCutchen’s team did and take it all the way to the Supreme Court, but would it be worth it for you or for your client? If not, make your deal, convince your client what a great job you did and MOVE ON.

Your Second Mistake

Another common mistake, and this is a big one, is to proceed WITHOUT the ERISA Plan Document (EPD). The EPD is supposed to contain specific legal language that allows the ERISA Plan to seek full reimbursement from any settlement a member receives as a result of a third-party injury. In the McCutchen vs. U.S. Airways Supreme Court ruling, the Supreme Court cites this language from the U.S. Airways Summary Plan Document (SPD).


ERISA lien resolution services
ERISA lien resolution services


However, the SPD is no replacement for the EPD itself, which the Supreme Court ruled reigns supreme.


ERISA lien resolution services


It’s important to note that if the aforementioned U.S. Airways reimbursement language hadn’t also been in the ERISA plan document, as sometimes it is not, this ruling would probably not have held. This is precisely why it is important to only proceed with the EPD. If you choose to proceed without the EPD then you really do not know if the ERISA Plan has the legal horsepower to exert a lien on your client’s settlement. The moral of the story? Don’t be a fool and proceed without the ERISA Plan Document. If you STILL choose to proceed without the EPD, ask yourself again if you really care what your client pays back to their ERISA plan or what their net settlement is, and this time answer truthfully.

Your Third Mistake

The third, and biggest mistake you can make, is to do it yourself. As new rulings make resolving lien cases more complex, it’s easier for mistakes to crop up. These mistakes can greatly cost your client. Why take that chance? Instead, make sure your retainer agreement has a provision that allows you to hire outside sources. With proper outsourcing, outside legal teams can make arguments that plaintiff’s counsel may be constrained to make. Better yet, when you decide to outsource, take advantage of resolution services for ERISA liens from The PLAINTIFF’S MSA AND LIEN SOLUTION.

The Solution

Our lien team at Precision Resolution will put your client in the best possible position to obtain a great result from the resolution of their ERISA Plan lien. Our team is full of relentless lien hitmen. Since 2011, we have put millions of dollars back into plaintiff’s pockets. Specifically, through relentlessly and successfully challenging, reducing and eliminating lien claims. Not to mention, we have also significantly reduced attorney exposure to complaints or claims stemming from lien issues. With a team like this there’s no need to go it alone, or take risks. Put our team to work for you and your clients now. Outsource your case to us here.