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.