I again want to thank everyone who signed up for the Lorman teleconference. This was actually supposed to be a repeat performance of the call that took place on April 1, 2009, but given the new CMS mandates in the past 4 weeks, I really feel as if it was a totally different presentation. Hope you all found it helpful.

Answers to the questions posed utilizing the presentation tool online and via email are as follows. Please feel free to send any follow-up questions or let me know if I missed any. I am happy to help everyone understand this unnecessarily confusing issue a little better.

Can Medicare only seek reimbursement from carriers and self-insurers on settlements they have made?  Or can they also seek reimbursement for claims where no settlement was made?  For instance, a claimant may stop treating for a permanent partial injury, then while this individual is covered by Medicare, their injury is aggravated.  Can Medicare seek reimbursement for medical services under the Secondary Payers Act in this situation?

Medicare may only seek repayment once a liability settlement is reached because it does not have a claim until it arises by operation of law upon the making of the insurance payment. It may seek repayment on a WC or no-fault claim at any time the accepted claim is open. And if I understand your example, if there is no settlement in a liability claim yet that injury was exacerbated and required treatment later, I think it would depend on if the claim could still be pursued, i.e. statute of limitations run. I believe there are situations like with PIP coverage where they could continue to come back until the policy limit was exhausted but that is basically an open claim. If I didn't hit the answer, give me a little more clarification as to the type of claim and maybe I can try again.

We have a workers' compensation statute that requires the employer to remain responsible for medical benefits for life.  Does this eliminate the need for a MSA?  Also, after 3 years we can negotiate a settlement of future medical benefits.  Would the negotiation of that settlement bring about MSA requirements?

If medicals are open for life, then Medicare has no exposure and an MSA is not needed. I'm not certain if you are referring to the same right to lifetime meds in the second part of your question, but in any situation where you can terminate your responsibility for future medical treatment and there is treatment reasonably anticipated and related to the claim that would otherwise be covered by Medicare, then yes an MSA situation would arise.

I defend major personal injury cases.  Am I correct that I only need to provide medicare setasides when the plaintiff is already a medicare beneficiary and the settlement exceeds $25,000 or when there is a reasonable expectation of medicare entitlement in the next 30 months and the settlement exceeds $250,000?  Reasonable expectation of medicare entitlement meaning the plaintiff has applied for SSDB or still has appeal/re-filing rights, is 62.5 years old or has end stage renal disease but does not qualify for medicare?

You are confusing the needs for an MSA and the ability to have CMS review a WCMSA. The criteria that you set forth in your question are review thresholds for the contractor that reviews proposed MSAs on behalf of CMS and have nothing to do with the need to protect Medicare's interests in a settlement. An MSA is needed in any settlement where an injured party has foreseeable future medical treatment related to your claim that will arise at a time when he is Medicare eligible and Medicare would otherwise cover that treatment.

Where can I find the final order in CARES, INC. v. Leavitt?

2008 WL 4737164 (E.D. CA)  (10/29/08)

Work comp-If public agency payer continues all future medical payments does medicare become a secondary payer? Is MSA required in that scenario?

No, you only need an MSA if you terminate your responsibility for medical.

If you have medical payments coverage in a non-liability case and the claimant has out of pocket expenses can you pay the claimant his bills and then the balance to Medicare

When you reference CMS Memo of 4/21/03, in which of the internet resources would we find that?

Scroll to the bottom of this link to Downloads:

http://www.cms.hhs.gov/WorkersCompAgencyServices/01_overview.asp

Where one defendant (and insurer) settles out of a case ahead of the other defendants, does that settling defendant need to satisfy (all or part of) the Medicare lien out of that separate settlement?

How do i sign up for the subscription service you discussed, and can i subscribe if i'm not a reporting employer (claimant's counsel)?

For updates related to CMS review process for WCMSAs, scroll to the bottom of this page to links inside CMS:

http://www.cms.hhs.gov/WorkersCompAgencyServices/01_overview.asp#TopOfPage

For updates related to MMSEA NGHP reporting, scroll to the bottom of this page to links inside CMS for email updates and notifications:

http://www.cms.hhs.gov/MandatoryInsRep/01_Overview.asp#TopOfPage

If statute of limitation passes on 3rd party case, can medicare still go after Liability Insurance company?

If the SOL is over, there is no legal liability of the insurance company to pay on the claim regardless of who brings it. Even if they are invoking their subrogation rights, they are still subject to the same laws that govern the claim. However because Medicare's rights to repayment arise out of operation of law based upon an insurance payment, if no payment (let alone claim) occurred, those were just ordinary Medicare payments.

In a state where medical benefits for workers compensation remain the responsibility of the employer by statute for life, how does this apply?

You do not need a MSA but you will have to report the ORM (ongoing responsibility for medical) under the MMSEA.  You only need to protect Medicare's interest under the MSP statute if they have an interest to protect. If medicals are open and open for life, I'd say Medicare is safe.

Who should we contact to get permission to settle (phone number, address)?

You don't need CMS's permission to settle a claim as that is a legal right your have absent any overlaying Medicare issues that may be tied to it.

You can obtain CMS's opinion in a WC settlement as to the adequacy of an allocation set aside for future related medicals that would otherwise be covered by Medicare.

CMS
c/o Coordination of Benefits Contractor
P.O. Box 33849
Detroit, MI 48232

You can notify the MSPRC that a settlement has or will happen and request information about monies that may be owed Medicare from the settlement.

Medicare—Coordination of Benefits
MSP Claims Investigation Project
P.O. Box 33847
Detroit, MI 48232
(800) 999-1118

Aren't MSA only mandated for Workers Comp Claims at the present time?

MSAs are mandated by virtue of the MSP statute itself in any settlement that has foreseeable anticipated Medical expenses that would otherwise be covered by Medicare regardless of the type of insurance [statute below specifically cites all types of insurance]. You are confusing the need for an MSA with the availability of CMS review of a WC claim that meets the workload thresholds thresholds of its review contractor. With the new MMSEA reporting requirements, CMS will be on notice of every settlement with foreseeable future medical of Medicare beneficiaries where MSAs were not considered

42 U.S.C. 1395y(b)(2) MEDICARE SECONDARY PAYER

(A) In general

Payment under this subchapter may not be made, except as provided in subparagraph (B) [Conditional Payments], with respect to any item or service to the extent that –

(i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1),

or

(ii) payment has been made, or can reasonably be expected to be made under a workmen's compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

You talked about exceptions to reporting new requirements for WC case -- meds only claim, less than 7 days lost time, and "under $600". What under $600? Under $600 in medicals? Where is this information?

http://www.cms.hhs.gov/MandatoryInsRep/Downloads/Allert_UserGuideSupp_NGHP.pdf

(let me know if claims really exist that meet that criteria)

MEDVAL 1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

Post-Settlement Administration

Pharmacy Benefit Management