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Thread Title: MSAs, MEDICARE and NEW CMS JULY 2009 REGS??
Created On Wednesday February 04, 2009 11:24 AM

rumbler
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Wednesday February 04, 2009 11:24 AM

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Hi All! With July 2009 rapidly approaching, I have some questions about the new CMS regulations and requirements concerning MSAs, and that Medicare's interests be considered whenever a WC case "RESOLVES" that will take affect in July, and just how this will effect IWs who are already Medicare Beneficiaries.

Here is what I am referring to:

https://www.cms.hhs.gov/MandatoryInsRep/

The new provisions for Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers' Compensation found at 42 U.S.C. 1395y(b)(8):

Add reporting rules; do not eliminate any existing statutory provisions or regulations. The new provisions do not eliminate CMS' existing processes if a Medicare beneficiary (or his/her representative) wishes to obtain interim conditional payment amount information prior to a settlement, judgment, award, or other payment.

Include penalties for noncompliance.

Who must report: "an applicable plan." "&[T]he term 'applicable plan' means the following laws, plans, or other arrangements, including the fiduciary or administrator for such law, plan or arrangement: (i) Liability insurance (including self-insurance). (ii) No fault insurance. (iii) Workers' compensation laws or plans."

What must be reported: the identity of a Medicare beneficiary whose illness, injury, incident, or accident was at issue as well as such other information specified by the Secretary to enable an appropriate determination concerning coordination of benefits, including any applicable recovery claim.

When/how reporting must be done:
" In a form and manner, including frequency, specified by the Secretary.

" Information shall be submitted within a time specified by the Secretary after the claim is resolved through a settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).

" Submissions will be in an electronic format.

I understand that an MSA is already required if an IW enters into a Compromise and Release, but what I am confused about is the wording in these new regs that NOW seem to INCLUDE "Judgements, Awards and Other forms of payment", and that Medicare's interests MUST be considered when a WC case is "RESOLVED" under these circumstance, and the IW is already a Medicare beneficiary.

I mean, how does this work if the IC will NOT settle, and IW's cases are resolved by Judgement, award or "other forms of payment" like a Stipulation with Future Medical?

Does this mean that ALL unresolved cases MUST NOW be reported to CMS ANYHOW, so that CMS can determine what would be in THEIR best interests, and IF a MSA will be required for Future Medicals, whether or NOT the case is "resolved" by either a "Judgement, Award or other forms of payment"?

Also, what happens if a case is resolved after July 1, 2009, either by F&A or Stipulations with FM----do the attorneys have to submit all the appropriate paperwork re "resolution" of the case, including medical records, etc. to CMS for REVIEW so that THEY can determine what conditional payments, etc made by Medicare must be reimbursed, and HOW Medicare's best interests will be taken into account "after the fact" regarding the FUTURE Medicals, and IF a MSA will be REQUIRED for the FMs as specified in the "Judgement, Award, or other forms of payment"??

Finally (I think), WHO gets nailed with the $1,000 PER DAY penalty if the WC case is NOT reported per these Regs?? I mean, it appears that the IC should be reporting their WC cases when the IW is a Medicare beneficiary (or WILL potentially be eligible), if the IC doesn't report, should either the attorney or the unrepped IW report to CMS that their case is nearing resolution, or that the case has ALREADY been resolved by "Judgement, Award or other forms of payment"??

This is ALL SO CONFUSING, and I know I have asked a LOT of questions!!!!! But I think there are MANY IWs who are in this position, and we all could benefit from ANY insight and further guidance!!!

Thank you all in advance,

Rumbler

Edited: Wednesday February 04, 2009 at 11:27 AM by rumbler

STEVEPSCA@YAHOO.COM
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Wednesday February 04, 2009 12:44 PM

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'Does this mean that ALL unresolved cases MUST NOW be reported to CMS ANYHOW, so that CMS can determine what would be in THEIR best interests, and IF a MSA will be required for Future Medicals, whether or NOT the case is "resolved" by either a "Judgement, Award or other forms of payment"?

Basically ..yes, the new rules require that all/any claim that includes medical treatment be reported to CMS/Medicare.

If you are Medicare eligible and you settle your claim by Stipulation/Award, or Finding/Award, you are not affected by the WCMSA requirements.
You are ONLY required to protect Medicare interests in a settlement that affects your medical benefits.

IW's are not the party responsible for the reporting requirements...the ER/IC/TPA holds that duty.

In a settlement that affects your medical, your AA, the ER/IC and/or TPA are the ones potentially standing in line to pay the 1000K/day fines... and the fine is not for the failure to report, but rather to take the steps to protect Medicare interests.

You are right rumbler, there can be a lot of confusion on this, but if you'll widdle this down to a couple of questions at a time, it would be easier to address...(?) Looks like you read everything you could find in the bulletin, and have inundated us with your concerns all at once...lol...
So for discussion puropse, one or two would be easier.

Edited: Wednesday February 04, 2009 at 12:45 PM by STEVEPSCA@YAHOO.COM

rumbler
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Wednesday February 04, 2009 3:11 PM

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Hi Steve! Thanks for the speedy response! Sorry about "inundating" you all with so many questions!

Here is the part of the reg that is confusing me the most---

" Information shall be submitted within a time specified by the Secretary "after the claim is resolved through a settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).

The Mediucare Secondary Payor Act regs, in conjunction with the above statement, seem to indicate that an MSA might be required not ONLY when a "settlement"/C&R is involved ----it appears that even a JUDGEMENT or AWARD, which I think includes a Stip with FM, would be subject to CMS's scrutiny, and what THEY feel would be the best procedure in order for THEM to protect THEIR interests, when it comes to Future Medicals that are specified in a "Judegement, Award or other form of payment".

The confusing part for me is that does this potentially mean that AFTER July 1, 2009, CMS WILL or MIGHT require a MSA in cases where there has been either a F&A or a Stip that INCLUDES FUTURE MEDICAL care, PARTICULARLY in chronic injury cases, where the IW WILL require potentially lifetime treatment, based on the past two years of medical treatment and drug prescriptions, as well as an AME/QME and PTP's RECOMMENDATIONS for FUTURE MEDICAL (like surgery, etc., etc). ???

Actually, that would sort of "make sense", because even WITH an F&A or Stip with FMs, IWs who ARE ALREADY Medicare beneficiaries would , and probably will HAVE to, CONTINUE to resort to getting their FUTURE Medical care under MEDICARE when the IC does their usual "DELAY/DENY" routine!!!

I hope my question makes more sense now! I have been having a challenging time lately with some changes in my medications, and my brain kinda feels like what happens with two magnets when they get too close together---they keep repelling each other and go skittering off in every direction! So thanks for bearing with me!

Thanks again!

Rumbler

Edited: Wednesday February 04, 2009 at 3:14 PM by rumbler

STEVEPSCA@YAHOO.COM
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Wednesday February 04, 2009 4:59 PM

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Your question makes sense rumbler, but you're going to confuse yourself further.

Where there is a Stipulation w/Award, or a Finding w/Award, the ER/IC retains the liability for the medical treatment... UNLESS there is a C&R releasing the 3rd party of all medical liability, you do not do anything to protect Medicare interests.

' IWs who ARE ALREADY Medicare beneficiaries would , and probably will HAVE to, CONTINUE to resort to getting their FUTURE Medical care under MEDICARE when the IC does their usual "DELAY/DENY" routine!!'

Medicare conditional payments as a rule, are not made where there is a reasonable expectancy, or probable expectation that a 3rd party will pay the bills for your treatment.
Accessing your Medicare entitlement because the IC is deliquent in providing authorization, or a denial to a requested treatment is not 'good cause' for Medicare to make a conditional payment.

To use your Medicare benefits, there must be a final denial of medical treatment to your injury. You would have to exhaust the UR and appeal/dispute process provided in the labor code'/ccr's before your provider could bill Medicare for treatment/services.

Medicare is ALWAYS secondary to another party holding liability for your medical treatment.

You can probably get most of your concerns answered here...http://www.cms.hhs.gov/WorkersCompAgencyServices/, just follow the links provided.

As I said before, most of these reporting requirements do not pertain to the IW... but rather to the AA/CA/DA/ER/IC/TPA as the case may be.

You might want to do some reading here too...http://adjustingworld.com/2003/news_v01n05.htm#medicare

And there are always updates and bulletins here...http://www.jjcelderlaw.com/MSABulletin.htm
Here is one 'NEW MEDICARE SECONDARY PAYER REPORTING REQUIREMENTS' that might help some...http://www.jjcelderlaw.com/MMSEAMSABull.htm

'The confusing part for me is that does this potentially mean that AFTER July 1, 2009, CMS WILL or MIGHT require a MSA in cases where there has been either a F&A or a Stip that INCLUDES FUTURE MEDICAL care, PARTICULARLY in chronic injury cases, where the IW WILL require potentially lifetime treatment, based on the past two years of medical treatment and drug prescriptions, as well as an AME/QME and PTP's RECOMMENDATIONS for FUTURE MEDICAL (like surgery, etc., etc). ??? '

As I said above, in the scenario you suggest here, there is NO NEED for a WCMSA as the ER/IC retains the medical liability and will retain liability for your medical until there is a C&R to that portion of the claim.
So, everything in that paragraph you can put completely out of your thought process...
UNTIL you settle your claim entirely by C&R, there is no reason to protect Medicare interests.

You should keep this in mind however...IF you were to settle the medical portion of your claim, with a WCMSA, it would be imperative that you include a WCMCA/Workers Compensation Medical Custodial Account... that provides money for future medical outside the setaside for co-pays, and deductibles and TrOOP costs... "True Out Of Pocket" costs associated with treatment that you cannot use the setaside funds for.
The setaside money can ONLY be used for Medicare approved charges where Medicare is 'normally responsible'.
You can read about TrOOP here...http://www.cms.hhs.gov/NationalMedicareTrainingProgram/downloads/Mod5Workbook.pdf

rumbler
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Wednesday February 04, 2009 10:42 PM

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Hi again Steve! THANKS!!! Now I am FINALLY getting it! And thanks for all those links---I will definitely have a LOT of reading to do, but now that I understand the basic premise, I think it will go a little easier for me!

One more question---When a case goes to trial where Medicare has made conditional payments , how are the conditional payments handled? I mean, is this an entirely different issue that does not involve the Trial Judge, but is dealt with directly between the IC and Medicare? Same question if the case Stips out.

As I said, lately it has become REALLY hard to read and digest complicated material, and its driving me batty----(that magnet analogy)!!!! It's so FRUSTRATING being so easily CONFUSED these days. Sometimes I feel like using my brain for a refigerator magnet--at least SOMETHING should eventually "stick"

Thanks again!

Rumbler

STEVEPSCA@YAHOO.COM
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Thursday February 05, 2009 5:55 AM

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I'm sorry you're having difficulty with your meds rumbler, you were doing so well there....(?)

'One more question---When a case goes to trial where Medicare has made conditional payments , how are the conditional payments handled? I mean, is this an entirely different issue that does not involve the Trial Judge, but is dealt with directly between the IC and Medicare? Same question if the case Stips out.'

When a claim approaches resolution, the CA and/or AA should be getting the IW to sign a release of information for SSA to release the records of the SSA claimant/receipient to ensure the status of the IW, and IF CMS/Medicare has made any conditional payments.
The ER/IC has the responsibility to do this, and make reimbursement of any of those payments Medicare is not responsible for.

You questioned before about IW's using Medicare when the ER/IC delays a requested treatment...Medicare rules preclude a provider from billing Medicare when that happens, until there is a final, valid denial and the treatment is determined as not necessary on an industrial basis....

'When Medicare is a Secondary Payer to a Workers' Compensation (WC) Plan
Pursuant to 42 U.S.C. ﾧ1395y(b)(2) and ﾧ 1862(b)(2)(A)(ii) of the Social Security Act, Medicare is precluded from paying for a beneficiary's medical expenses when 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."

And...it would be important in any Stipulation/Award, or Finding/Award, that reimbursement of any conditional payments made by Medicare be included as a responsibility of the ER/IC. As Medicare is always first in line for recovery, they can come after anyone involved who receives money from a settlement. That would include the AA and IW were a lump sum is made. And, Medicare can determine the ENTIRE settlement amount is for 'future medical'...if there are not clear allocations.

'Overpayments and Recovery
Federal law (42 U.S.C. ﾧ 1395y(b)) not only establishes that Medicare is a secondary payer to WC, but also that Medicare has a priority right of recovery over any other entity to the proceeds of any settlement. To the extent that Medicare has made any "conditional payments", Medicare will recover those payments pursuant to 42 C.F.R. ﾧ 411.47.' http://www.cms.hhs.gov/WorkersCompAgencyServices/02_workerscompensationoverview.asp

Under the MSPA/Medicare Secondary Payor Act, and the 'new' reporting requirements, even if the IW is not Medicare eligible, and a WCMSA is not even addressed, it is a good idea to have a setaside account for the future medical needs.
As CMS/Medicare is now mandated to be informed of these claims, they'll be aware of FMA's, and once an IW does become Medicare eligible they can deny coverage of body parts in these claims until the full amount including interest has been exhausted.

There is a articleyou might want to read first... seems a bit more 'english-ish'...

'The uncertain future of Medicare set-asides: Medicare set-aside requirements, which lay dormant for two decades, have recently been revived in the workers' comp arena. Personal injury cases are next, but plaintiff lawyers needn't panic. The law is on their side.'

It's here...http://goliath.ecnext.com/coms2/gi_0199-7651231/The-uncertain-future-of-Medicare.html#abstract

Roofinfool
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Thursday February 05, 2009 7:56 AM

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Steve: you mentioned the release of information for SSA, I can tell you that when Roof became Medicare entitled we received a form from CMS that was exactly that, so CMS has the information [in his case prior to any settlement even being rendered.]......the form asked for information concerning AOE/COE claim, who the IW was, who the TPA/IC was and if represented, the AA involved.

I sent a copy of this form to our AA......just to make sure he stayed on top of this.....

Also, we received a similar form from the HMO selected for Medicare purposes.....this asked the same similar questions.....

So it would appear that when an IW is found to be a Medicare beneficary and that determination is in part due to AOE/COE, CMS and the medicare insurer are steps ahead of the IC in securing the information from which to monitor the outcome of the WC claim.

RW

Edited: Thursday February 05, 2009 at 8:01 AM by Roofinfool

STEVEPSCA@YAHOO.COM
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Thursday February 05, 2009 8:33 AM

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That is true that CMS and the COB manager assigned to the claim ask for that information... in fact, I receive those forms periodicall, if not every 6 months (!).

But, if the ER/IC does not have a signed release of information by the IW, SSA won't provide the records TO THEM.

'CMS and the medicare insurer are steps ahead of the IC in securing the information from which to monitor the outcome of the WC claim.'

Thankfully so...!
Even though my CA ..and AA, knew I was Medicare eligible they did not take the steps to secure the release of Medicare/SSA records to determine my status when the time came where Stipulated my claim.
When SSA sent requests for records to the CA/IC, it took nearly an act of god to get the CA to provide the requested documentation. SSA/CMS contacted me to see if I could assist in securing the documents they were requesting. What this amounted to in the end was a computer print out of benefits provided. It took over EIGHT MONTHS for the IC to comply.

Oddly enough, SSA rep told me they 'hope' for compliance, as there is no law/rule that requires the carrier to comply with that request.

rumbler
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Thursday February 05, 2009 9:28 AM

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Hi again Steve! Thank you again for all the information. I am going to print it out for my attorney to review.

The only thing I have received re Medicare, was from my attorney several years ago, which was an authorization for Medicare to release my medical records and other information to my attorney, the IC and the DA. To date, I have not received ANYTHING from Medicare re the WC treatment, etc.

I am absoutely SURE that the IC and DA are fully aware that I am a Medicare beneificiary, and have been since approximately 2005! In spite of this, the DA recently "proposed" that we "figure out" another way to settle WITHOUT involving a MSA!!!!!! THANKFULLY, my atty said "NO", as he would NOT subject himself to malpractice, or ME to Medicare's wrath!

Isn't this FRAUD or something like "conspiracy to COMMIT FRAUD" that the DA/ IC has attempted?

As you now can hopefully understand better, this is WHY I am getting so NERVOUS that EVERYTHING be handled absolutely PROPERLY when it comes to Medicare's involvement in my case!

What really got me going was the part where one of the Medicare Memos stated that essentially, it did NOT matter if there was an issue of liability on the part of the IC or NOT, if I understand correctly, and that ALL cases where the IW is a Medicare beneificiary, on or AFTER July 1, 2009 if the case "resolves" by either "Judgement, Award or other forms of payment", the case MUST be reported to CMS.

Knowing my IC/DA, I am sort of anticipating that they will NOT COMPLY with that mandate! That $1,000K PER DAY penalty got my heart pounding pretty quickly! Especially since the DA/IC is OBVIOUSLY looking for a way to CIRCUMVENT Medicare's involvement and requirements!

I know my attorney would NEVER go along with something like that, but I am ALSO realizing that Medicare's arms of the law can be pretty darned LONG when they want to "reach out and touch someone" in order to get REIMBURSED!!!!!

I just want to make sure that there are NO PROBLEMS with Medicare. either NOW or in the FUTURE! Thus far, I have been so very fortunate that Medicare has come through because of the denied liabilityand treatment on one particular aspect of my case, and I want to KEEP it that way. It has literally been a lifesaver for me, in more ways than one.

Again thanks Steve for all your information! I am sure after I have read everything ELSE you have provided, that I will have more questions! Thank you for understanding and being so PATIENT with my "altered brain status".

Most Sincerely,

Rumbler

STEVEPSCA@YAHOO.COM
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Thursday February 05, 2009 11:38 AM

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'What really got me going was the part where one of the Medicare Memos stated that essentially, it did NOT matter if there was an issue of liability on the part of the IC or NOT, if I understand correctly, and that ALL cases where the IW is a Medicare beneificiary, on or AFTER July 1, 2009 if the case "resolves" by either "Judgement, Award or other forms of payment", the case MUST be reported to CMS. '

Actually, I think the mandate is that any claim, WC, PI or otherwise, where there is medical treatment provided, the ER/IC/TPA or any 3rd party liability, the claim must be reported to CMS/Medicare....whether there is resolution by Stipulation, or C&R.

CMS just wants to know what the status is... when the claim settles, then the particulars must be provided. That would be the documentation defining the allocations of funds in the settlement. That is the time a setaside determination will be made...

The new rules are not limited to WC claims...

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