Presenting a live 90-minute webinar with interactive Q&A Workers' Compensation Claims and the Medicare Secondary Payer Act Meeting Reporting Requirements, Satisfying Liens, and Establishing Set-Asides in Settlements TUESDAY, SEPTEMBER 10, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Bradford Peterson, Partner, Heyl Royster Voelker & Allen , Urbana, Ill. John Cattie, Head, Future Cost of Care Practice, Garretson Group , Charlotte, N.C. 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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WORKERS’ COMPENSATION CLAIMS AND MSPA Brad Peterson Heyl, Royster, Voelker & Allen Urbana, Illinois John V. Cattie, Jr. Garretson Resolution Group Charlotte, NC
CONTRACT LANGUAGE • Acknowledge Medicare’s interest • MSA amount • MSA approved or to be approved • Terms of self-administered MSA • Open medical if MSA rejected 6
CONTRACT LANGUAGE • If no MSA explain why • Record keeping requirements 7
SETTLE NOW – NOT LATER • Settle claim before petitioner reaches 62 ½ years of age 8
SETTLE NOW – APPLY LATER • Petitioner waits to file SSDI claim until after settlement of workers’ compensation claim 9
APPEAL DENIED • Await settlement until pending SSDI appeal is denied 10
NO FUTURE TREATMENT – NO MSA • MSA only where future treatment reasonably anticipated • Caveat: CMS Memo 4/22/03 ‘and settlement only for past medical expense’ 11
ZERO ALLOCATION • Acquire MSA proposal with zero allocation based upon highly disputed facts and substantial compromise 12
SETTLEMENT BELOW MSA THRESHOLDS • Negotiate settlement below $25,000/$250,000 thresholds to avoid time and expense of CMS approval 13
LIABILITY MSA’S PROPOSED REGULATIONS 14
PUBLISHED FEDERAL REGISTER VOLUME 77, NO. 166 Friday, June 15, 2012 • When enacted will codify CMS’s position requiring liability Set-Asides 15
MUST PROTECT MEDICARE FOR FUTURE MEDICAL EXPENSE, if • Current Medicare beneficiary. • or, • Claimants who reasonably anticipate receiving Medicare covered services for injury after settlement • Seven options to protect Medicare • Options 1 through 4 apply to all cases • Options 5 through 7 apply only to current Medicare beneficiaries 16
OPTION 1 • Beneficiary chooses to pay all future medical expense until settlement exhausted • No annual accounting but periodic audits • Medicare will begin covering injury related expenses when settlement funds exhausted 17
OPTION 2 • Medicare will not pursue future medicals if; A.) • Accident, illness or injury occurred 1 year or more before settlement; • Claim did not involve chronic illness or major trauma; • Claimant does not receive additional settlements nor workers’ compensation or no fault insurance claim • or, 18
B.) • Settlement less than defined amount (to be determined) • Claimant not current Medicare beneficiary • Claimant does not expect to become beneficiary within 30 months • Claim does not involve chronic illness or major trauma • Beneficiary does not receive additional settlements • Claimant does not have corresponding workers’ compensation or no fault insurance claim 19
• What is chronic illness or major trauma? • Serious injury to two or more ISS body regions • or, • ISS score greater than 15 20
• BODY REGIONS: • Head or neck, face, chest, abdomen, extremities, external 21
ISS = INJURY SEVERITY SCORE. 22
23
CHRONIC ILLNESS • Is a condition or disease lasting more than three months. • Examples: chronic breathing difficulty, cancer, diabetes, quadriplegia and/or fibrosis. 24
OPTION 3 • Before or after settlement, physician attests that future medical expense not expected 25
OPTION 4 • Medicare Set-Aside arrangement prepared and submitted to CMS for review 26
OPTION 5 RECOVERY OPTIONS: • Settlement $300.00 or less; • Settlement below $5,000.00 pay 25 percent to Medicare; • Settlement $25,000 or less claimant can self calculate amount to protect Medicare for future medical expense 27
OPTION 6 UPFRONT PAYMENT: • Pay Medicare a lump sum payment to cover calculated cost of future medical; • Lump sum payment to Medicare in the amount of a fixed percentage of settlement amount 28
OPTION 7 COMPROMISE OR WAIVER: • Beneficiary may request CMS compromise or waive recovery 29
DOUBT NO LONGER EXISTS AS TO MEDICARE’S POSITION! 30
• PROPOSED REGULATIONS MAY BE SUBSTANTIALLY ALTERED PRIOR TO ADOPTION 31
REGULATIONS TO BE PUBLISHED SEPTEMBER 2013 32
Bradford Peterson Heyl Royster Voelker & Allen Urbana, Ill. 217.344.0060 bpeterson@heylroyster.com 33
Ready for Adventure? The SMART Act and Medicare Set Asides September 10, 2013
The SMART Act and Medicare Set Asides John Cattie 35
Base Camp: Map the Path & Timeline to Resolution Climbing the Mountain: SMART Act Overview The Treacherous Descent: CMS WCMSA Reference Guide Take-Home Climbing Gear 36 36
Base Camp: The Path & Timeline to Resolution Past Interest Future Interest MMSEA Date of Settlement Negotiations Receipt of Send Demand/ Funds File Lawsuit Case Intake/ Date of Distribution of Retainer Injury Proceeds Up to $1,000 Penalty per day per claimant for non-compliance 37 37
Additional Gear: The SMART Act “SMART” Act Strengthening Medicare and Repaying Taxpayers Act Signed into law by President Obama on January 10, 2013 Impacts 2 of the 3 Medicare Secondary Payer “MSP” components: Repayment & Reporting 38
Additional Gear: The SMART Act Intended to improve efficiencies of Medicare’s current recovery process for conditional payments Rewards settling parties who take a proactive approach to addressing Medicare’s recovery interests in the beginning stages of settlement Benefits to planning ahead: 1. Ability to make more informed pre-settlement decisions 2. Option of a fast- tracked process in identifying and resolving Medicare’s recovery interests 3. Assurance that there will not be any post-settlement complications relating to MSP conditional payment reimbursement obligations 39 39
SMART Act: Section 201 Requires the Centers for Medicare and Medicaid Services (“CMS”) to maintain a secure web portal for settling parties to use as an “early warning system” – Allows settling parties to notify CMS of an anticipated settlement, judgment, or other payment prior to settlement – You can then efficiently resolve any Medicare repayment claims using the website following a specific process and timeline Implementation Timeline: CMS will have 9 months (October 10, 2013) from the date of enactment to issue final regulations to carry out Section 201 – Process is likely to be phased in over a set period of time to allow for implementation changes 40 40
SMART Act: Section 201 Process required by Section 201: Important Note: to take advantage of the fast-tracked resolution process, notification to Medicare must occur within 120 days of settlement, and the entire process must be completed within that timeframe 41
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