Interesting call
We received a call today from the claimant in
The long and short of it is that he has a CMS approval letter from 2007 approving $18,000 for the MSA. However, he is currently taking $15,000 PER MONTH in Medicare covered Rx which according to him is the full responsibility of his prior employer and the TPA.
The TPA is representing that the 18k MSA that was approved more than two years ago fully protects Medicare's interest under the theory that MSA approvals never expire. The claimant is very hesitant to settle his case because he will spend the 18k in exactly 40 days instead of the 18.9 years it is projected to last. He wisely concluded that even if Medicare was to pay his claim under Part D, there would be substantial out of pocket funds required to fill his Rx going forward. (of course his settlement may be for 2MM and that isn't an issue. Not enough information to draw a conclusion here).
So the question is, did the TPA adequately protect Medicare's interest by relying on a two year old MSA that was approved by CMS or do they have a duty to add additional funds to the MSA since they have knowledge that the amount is completely inadequate? What liability does the employer, TPA and claimant have under this scenario?
What would you do if you were the adjuster, attorney or TPA? Comments welcomed.
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Categories: Questions and Answers,MSA
Tags: Settlement
Certainly prior to any approval of settlement, CMS would have to review and ACCEPT the $18k MSA-- which in this case, would never happen.
A good adjuster would have resubmitted the MSA for an update prior to placing any new settlement authority on the table. A two year old MSA doesn't count for anything when there has obviously been a change in the patients' medical status to necessitate $14k/mo in RX's.
As far as $14k in RX's-- what are they going through? A private pharmacy owned by the physician with kickbacks going to the attorney? If they are legitimate RX's-- someone contact the DEA because something reeks about this situation.
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At is not so far#fetched. Insurabce company lawyers fully anticixate the WCMSA Propsals being a 9-2 year prior assessment to the#current costs ob a condition that may have worsined due to "Ligal Strategy"'knowing paying gurrent monthly RX, would even|ually run it' own cyc;e, but the carrier'instead of beinc responsible fov medical treatment for life, ny complying wit` a 1-2 year old'Med/RX assessment. They simply wait it out and blatantly attempt to shift a life time of future medical costs to Medicare. Having the approval they stay on a hourly clock to their clients, expend resources for medical care out of their clients pockets, and almost "force" settlements from petitioner's that do not realize that their own out of pocket expenses never end, and a lifetime of donut holes are passsed on to the petitioner and Medicare.It is an unscrupulous legal strategy, but it works for their respective clients, when Counsel states to them "mateer of factly" we saved you 25-30 years of future medical/RX costs.
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CMS approved the MSA and therefore any medical over and above the MSA will be paid by Medicare inclusive of his co-pays. Am I correct?
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It is exactly the point of why a Respondent's Counsel uses the strategy. The future MSA has a defined and specific cost (set aside assigned to it) it is based solely upon the future MSA when the proposal was submitted, and exactly the reason these claims last into 5-10 years, because if you settle the TRUE future medical costs will come out of your settlement award. The donut holes each year are your expense alone, and the A,B,C,D Tier of many prescriptions have varying co-pays which the Respondent has passed on to the petitioner and Medicare.
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Future MSA considerations BEFORE you accept settlement
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