Presenting a 100 ‐ Minute Encore Presentation of the Teleconference with Live, Interactive Q&A Personal Injury Claims and the Personal Injury Claims and the Medicare Secondary Payer Act Strategies for Claims Settlement to Mitigate MSP and Section 111 Liability Risks THURS DAY, OCTOBER 27, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Jeremy T . Burton, Partner, Williams, Montgomery & John , Chicago John Randall Whaley, Partner, Neblett Beard & Arsenault , Alexandria, La. S ylvius H. Von S aucken, Chief Compliance Officer, Garretson Resolution Group, Cincinnati The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Today’s Agenda 1 M di 1 Medicare Insurer Reporting and MSP Compliance I R ti d MSP C li Legislative and Case Law Updates g p 2 3 Release Language, Strategies and Practice Tips 5
Personal Injury Claims & Medicare Secondary Payer Act j y y y September 28, 2011 Sylvius H. von Saucken y Garretson Resolution Group svs@garretsongroup.com 513.794.0400
MSP: The Medicare Secondary Payer Act History… y • MSP – December 5, 1980 • Medicare in 2003 • MMA 301 (expanded liability) • MMA 301 (expanded liability) • Medicare in 2006-07 • Changes in MSPRC • Medicare Part D • Medicare in 2008-09 • MMSEA (eff. 7-1-09) ( ) • 10/1/10 – no fault • 10/1/11 - liability • New CP procedures (eff 10/1/09) • New CP procedures (eff. 10/1/09) • MSP Reforms (HR 1063) 7
2011 MSP Compliance = 2 Obligations “What do you mean by closing the loop?” REPORTING OBLIGATION [2010 2011] REPORTING OBLIGATION [2010-2011] Accountable Party is the Defendant RESOLUTION OBLIGATION [1980; 1995] Accountable party is plaintiff/claimant/counsel. Involves both past payments made (conditional payments) And screening to ensure future costs of care are not shifted over to Medicare. (Medicare Set Asides) s ted o e to ed ca e ( ed ca e Set s des) 8
2011 MSP Resolution = 2 Obligations “Consider and Protect” Medicare’s interests Past Interest (Date of Injury to Date of Settlement) Past Interest (Date of Injury to Date of Settlement) Verify and resolve conditional payments Future Interest (Date of Settlement Onward) Future Interest (Date of Settlement Onward) Determine IF an MSA is appropriate under the case/claim specific facts AND document the file p By making this determination: Medicare’s future interest considered and protected Parties are MSP compliant (statute and regs) Claimant’s Medicare benefits are protected 9
The Big Shift All this change is causing… …shift away from reliance on “indemnification” clauses alone… • …to affirmative obligation to address liens before disbursing as • condition of settlement condition of settlement What it means… • Requires starting much earlier • Requires formal verification of entitlement q 10
When Rules Change, So Must the Game Plan Old Post- Settlement Continuum Medicare / Medicare / Agreement Medicaid On Preservation Settlement ( (Trusts / Set Amount Disbursement Asides) Lien Structured Structured Reimbursement Settlement Paperwork 11
New Settlement Continuum Medicare / Medicaid Preservation Lien (Trusts / Set- Resolution Asides) Agreement Structured On Settlement Settlement P Paperwork k Amount Disbursement 12
Avoiding Confusion & Disruption… Understanding the Medicare reimbursement system. Understanding the Medicare reimbursement system. What is a conditional payment and how can it disrupt the ordinary settlement process if not accounted for. Focus on injury-related medical expenses conditionally paid by Medicare (personal injury cases). The pre- and post-12/5/80 conundrum. Opening the tort recovery record as a condition precedent to payment by settling party. Proof of payment a condition for settling party Proof of payment a condition for settling party. 13
Collaboration in Practice 6 step process to get money 6 step process to get money flowing after settlement: 1. Settlement agreement contains representations and warranties 2. 2 Plaintiff shares evidence tort recovery record has been opened with Medicare Pl i tiff h id t t d h b d ith M di (i.e. results of entitlement search) 3. Defendant pays settlement proceeds to counsel 4. 4 Counsel agrees to hold back all net proceeds until conditional payment Counsel agrees to hold back all net proceeds until conditional payment amount received from Medicare (not necessary to hold back attorney fees/expenses because Medicare allows offsets for those) 5 5. Counsel then holds back conditional payment amount plus reasonable buffer Counsel then holds back conditional payment amount plus reasonable buffer and distributes balance 6. After final resolution, plaintiff provides proof of satisfaction back to defendant 14
P Personal Injury Claims & The l I j Cl i & Th Medicare Secondary Payer Act Medicare Secondary Payer Act Wednesday, September 28, 2011 d d b jrwhaley@nbalawfirm.com 1-800-256-1050 J.R. Whaley
Preliminary Questions y • Has your client been a Medicare beneficiary? Has your client been a Medicare beneficiary? • Is your client presently on Medicare? • SSDI? SS ? • Applied for SSDI? 16 jrwhaley@nbalawfirm.com 1-800-256-1050 J.R. Whaley
Reporting Obligations of a Liability Settlement S ttl t • Report to COBC information about the claim Report to COBC information about the claim (Medicare number, injury, date of injury). • Consent forms/proof of representation to • Consent forms/proof of representation to MSPRC. • Adverse unrelated payments and dispute lien Ad l d d di li amounts. • Report the settlement. 17 jrwhaley@nbalawfirm.com 1-800-256-1050 J.R. Whaley
Plaintiff Attorney Should (Must): y ( ) • Report to COBC Report to COBC. • Report to MSPRC. • Pay the lien. h li 18 jrwhaley@nbalawfirm.com 1-800-256-1050 J.R. Whaley
Failure to Make the Appropriate P Payment t • If Medicare is forced to litigate to receive If Medicare is forced to litigate to receive reimbursement of conditional payments, double the amount is due plus interest double the amount is due, plus interest. • Attorney has direct liability for reimbursement. reimbursement • Client may lose Medicare coverage and Social S Security may offset benefits. i ff b fi 19 jrwhaley@nbalawfirm.com 1-800-256-1050 J.R. Whaley
Personal Inj ury Claims and the Medicare S econdary Payer Act Jeremy T. Burton 312.443.3284 jtb@willmont com jtb@willmont.com
21 Reporting Requirements p g q The new law, Section 111 of the Medicare, Medicaid The new law, Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA Section) “Adds mandatory reporting requirements with respect “Add d t ti i t ith t to Medicare beneficiaries who have coverage under group g p health plan p arrangements g as well as for Medicare beneficiaries who receive settlements, judgments, awards or other payment from liability insurance, insurance, no-fault no fault insurance, insurance, or or workers’ workers compensation.”
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