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LMSAs: Is 2018 the Year?

June 2018

As we enter into the second half 2018, the anticipation surrounding reform of Medicare Set-Asides (MSAs) in liability and no-fault claims is growing. However, recent discussions by CMS reveal that it is not likely any formal process will be adopted soon. Over the last nearly 20 years, The Centers for Medicare and Medicaid Services (CMS) has provided a number of guidelines, thresholds, and policies for navigating the MSA process in Workers’ Compensation claims. However, the same has not been formalized for liability and no-fault claims … yet. All signs seem to point to potentially big changes for Liability Medicare Set-Asides (LMSAs) in the near future. Or at least in the future.

What are these signs of change? Initial rumblings of the formalization of the LMSA process started back in 2016. At that time CMS announced intentions to plan a series of town hall meetings to address reforms. Then, CMS advised Medicare and its contractors, effective October, 2017, to begin rejecting medical claims submitted post-resolution of a liability settlement on the basis the claims should be paid out of an LMSA. In concert with its search for a new set-aside review contractor in 2017, the CMS “job posting” requested the contractor provide review of liability and no-fault MSA submissions in addition to workers’ compensation MSAs. The amount of the contract with the new reviewer was purported to be more than 10 times the dollar amount received by the previous contractor. Speculation loomed that the large increase in the contract value signaled an increase in the expected workload if/when voluntary submission thresholds were added for Liability and No-Fault MSAs.

The Crystal Ball: Using Medical Investigation to Predict Future Medical Exposure

June 2018

By Marina Takagi

With cases involving complicated medical issues, the idea of shutting down medical rights due to potential future medical exposure seems daunting and unpredictable. However, with thorough medical investigation, BCM’s Medicare Compliance Department is able to foresee potential exposure for a Medicare Set-Aside Arrangement (MSA), and recommend the best legal course of action to resolve the claim.

In such a case, the petitioner was a younger employee that alleged exposure to chemicals in the workplace. This was the beginning of the petitioner’s extensive treatment for scleroderma, Raynaud’s syndrome, pulmonary fibrosis, and systemic sclerosis. Ultimately, the petitioner underwent a lung transplant. Following the transplant, the petitioner continued treatment required to avoid transplant rejection, as well as treatment to combat numerous infections.

Illinois Court Decisions Hints at Future of Medicare Advantage Reimbursement

March 2018

The Medicare Secondary Payer statute clearly states Medicare coverage is secondary to “primary” plans, which include workers’ compensation, liability, or no-fault insurance. If Medicare pays for medical services that should have been paid by a primary plan, Medicare can sue the plan for reimbursement of those payments.

Recent federal court decisions have expanded the term “Medicare” to include the private carriers who offer Medicare Advantage under Medicare Part C. The practical consequences are significant. If you have a claimant who is a Medicare beneficiary and you contact Medicare to conduct a search of conditional payments, Medicare may inform you there are none. But it may be unaware of benefits provided by Medicare Advantage. For such claims the reimbursement information can come only from the specific insurance carrier providing that claimant’s Medicare Advantage coverage. Making it even harder to get accurate information regarding Medicare Advantage, a claimant can change between Medicare Advantage insurers or switch back and forth from Advantage coverage to traditional Medicare. Adding to the confusion, many claimants’ attorneys have little or no clue how to assist with Medicare issues. An effective Medicare compliance program needs to consider and address Medicare Advantage, as well as traditional Medicare.The Medicare Secondary Payer statute clearly states Medicare coverage is secondary to “primary” plans, which include workers’ compensation, liability, or no-fault insurance. If Medicare pays for medical services that should have been paid by a primary plan, Medicare can sue the plan for reimbursement of those payments.

REDEFINING DIAGNOSIS "CODES" ELIMINATES CONDITIONAL PAYMENTS CLAIM

June 2017

Following a claim settlement in which all known medical treatment bills had been paid by the insurer, Medicare submitted a claim for reimbursement of conditional payments in excess of $17,500.00. According to the representative of CMS, the charges were all related to the claim, because the records of the medical providers included the same diagnostic codes as those used in the treatment of the underlying injury.

In our initial assessment, we noted the majority of bills in the CMS claim were submitted by medical care providers that were not involved in the claim prior to the settlement. We recommended further investigation, and the claims handler authorized medical records subpoenas. The records that were obtained demonstrated that the coding had nothing to do with the actual treatment. The body parts and conditions listed in the records, and the actual treatment and services that were rendered by these providers had nothing to do with the claimed injuries.

THOROUGH INVESTIGATION, DETAILED ARGUMENT LED TO EXCLUSION OF DISPUTED DRUGS FROM MSA

June 2017

A claimant sustained serious injuries to his left arm and right leg when he was struck by an automobile in 2008. His diagnoses included an open fracture of the shaft of the ulna, an open fracture of the shaft of the fibula, and a fractured tibia, as well as a non-union of the tibial fracture. Treatment included an open reduction and internal fixation of the ulna, intramedullary nailing and debridement of the tibia, and multiple physical therapy and orthopedic care visits from July 2008 to October 2014, a period of over six years.

At the time the settlement was approved in September 2014, the claimant continued to receive treatment for right leg pain. This included extensive use of narcotics, which alone were valued at more than $40,000.00 over the claimant's future life expectancy. In our triage for an MSA, we recommended obtaining updated medical evidence, which our team analyzed. The new evidence supported our argument to CMS that the petitioner's ulnar injury had completely resolved and needed no further treatment.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
One Metropolitan Square
211 North Broadway, Suite 2200
St. Louis, MO 63102
Phone: 314-300-0527
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