Liability MSAs – What should you believe?

Friday, June 22, 2018

For many years we have all heard that Liability Medicare Set-asides are coming and are destined to either inflate settlements or elongate the process.  Many in the industry like to use scare tactics to line their pockets with your allocated expense dollars.  The truth is this…..

Medicare expects to be a secondary payer in all matters involving non group health claims for liability, no fault, and workers’ compensation.  What this means is relatively simple:

  • If Medicare pays for necessary medical treatment that results from the non-group health claim; they expect to be reimbursed; this is a conditional payment.
  • If a claim settles all future medical exposures for a Medicare recipient (or a person within 30 months of eligibility), Medicare expects the cost of the care after settlement be paid from the proceeds of the settlement.  If an amount is quantified for this future care (i.e. an MSA)it protects the rest of the settlement (general damages)  from CMS’ grasp.

Please take a moment to read Chronovo CEO Ken Paradis’s article:  Return of Big Foot: Practical Solutions for CMS’ Mythical Liability MSA Policy.  With expert precision, Ken has outlined the conundrum many face within the Liability MSA world and what should be done when a “Benson Memo” cannot be secured.  Doing nothing is not the best of plans as we have seen by MSP Recovery pursuing many liability carriers; especially those that have not standardized practices for their claims organization and created measurable controls to assure the claim professional is executing on them.

Your process begins with clear direction for the claim professional at the onset of their claim to investigate Medicare eligibility and to secure the information necessary  for Section 111 query purposes;  Gender, Date of Birth, First Name, Last Name, and either Social Security Number, HICN, or Medicare Beneficiary Identifier.  Once identified as Medicare eligible and the claim is likely to be settled, proactive lien / conditional payment investigation is recommended along with the collection of the additional data required for Section 111 reporting.  

When post settlement medical is identified, engaging experts in all disciplines assures your LMA, testimony, and defenses are fair and balanced.  The use of nurses that are certified life care planners, legal nurse consultants, and are certified with their MSCC have long been accepted by the courts to provide testimony and opinion on the medical needs of injured claimants.  As Ken outlined, the majority of costs in an MSA are due to medications that are currently prescribed or may be prescribed post settlement.  Medications require Doctors of Pharmacy that are schooled and experienced in the efficacy of the medications, counter indications, and how the medications are metabolized; especially in older adults.  

Alas a collaborative approach requires expertise experienced in the most complex of MSP issues.  Don’t ask your defense attorney to be your MSP expert; require your MSA vendor to have lawyers that understand the nuances of MSP compliance and demand your Structured Settlement Broker and Professional Administration partners have their roots in the MSP environment.

ExamWorks Clinical Solutions offers integrated Section 111 reporting services with conditional payment research and lien adjudication. Our team is comprised of more than 40 certified life care planners and Doctors of Pharmacy leveraging the best MSP experts in the industry in Marty Cassavoy, Annie Davidson, Patricia Kent, and Lou Porrazzo.  Only ExamWorks Clinical Solutions partners exclusively with Chronovo for Structured Settlement Services and is a proud partner with Ametros.