By Shawn Deane, General Counsel, Ametros
There is a lot of pre-settlement focus, time and attention paid to ensuring Medicare’s interests are protected though the Medicare Set Aside (MSA) process in workers’ compensation claims that resolve future medicals. The purpose of an MSA is to “…estimate, as accurately as possible, the total cost that will be incurred for all medical expenses otherwise reimbursable by Medicare for work-injury related conditions during the course of the [injured individual’s] life, and to set aside sufficient funds from the settlement, judgment, or award to cover that cost.” See WCMSA Reference Guide, v3.5, Sec. 3.0.
All the time, expense and effort that go into ensuring a precise, accurate MSA allocation can be for naught if a misstep occurs in the post-settlement administration of the account. As my colleague Jayson Gallant examined in his piece, “Proof that Medicare Denies Post-Settlement Workers’ Comp Claims,” Medicare will deny post-settlement treatment in instances where “…payments from the [MSA] are used to pay for services other than Medicare-allowable medical expenses related to medically necessary services and prescription drug expenses for the [workers’ compensation] settled injury or illness.” See WCMSA Reference Guide, v3.5, Sec. 17.3.
All parties to a settlement should be aware that Medicare has the administrative and technological processes in place to deny claims post settlement in situations where MSAs – submit or non-submit – are involved. Our study, “A Study of CMS Policy on Treatment Denials for Injured Workers with a Medicare Set Aside,” explored the frequency and occurrences of these denials.
Given this data and the Centers for Medicare & Medicaid Services’ (CMS) recent policy statement in the WCMSA Reference Guide with respect to non-submit MSAs, it’s important for all parties to a settlement to not only consider Medicare’s interests up-front when settling a claim, but also post-settlement, to ensure adherence to CMS guidelines so there are no denials or disruption in continuity of care.
All parties to a settlement seek finality. The last thing claims payers or attorneys want to deal with are denials related to mismanagement of the MSA by an injured individual who is ill equipped to handle the complex obligations associated with administration. Arguably, shifting the post-settlement administration burden to a professional administrator is the only method to achieving finality to a settlement and eliminating contingent exposure relative to the MSA.
Administering an MSA involves a whole host of obligations, required by CMS, with respect to the funds. These include:
- Establishing a separate interest-bearing bank account
- Expending funds only on Medicare-covered items casually connected to treatment related to the underlying workers’ compensation or bodily injury claim
- Coordinating with providers to transmit invoices to be properly billed against the MSA funds
- Maintaining records and accounting from the MSA for each transaction
- Submitting annual reporting and attestation with proper documentation when the funds are properly depleted (either permanently or temporarily)
Because of the complexity involved in MSA administration and the propensity for an injured person to fail to comply with all the technical and burdensome requirements, “it is highly recommended” by CMS that individuals utilize a professional administrator. (WCMSA Reference Guide, v3.5, Sec. 17.1.) Moreover, “CMS highly recommends professional administration where a claimant is taking controlled substances…” (Id. at 17.1.)
When settling cases, a commitment should be made to ensure that an injured individual completely understands their post-settlement obligations relative to managing their future medical care and administering their MSA. Employers, claims payers, MSA vendors, and attorneys can fulfill this commitment by introducing the injured individual to a trustworthy professional administrator. In fact, most claims payers cover the cost of professional administration.
Professional administrators can also facilitate claim closures and settlements by educating the injured individual on life after settlement. Consideration should also be made around services that allow for achieving potential discounts and savings on pharmacy and medical treatment costs – in efforts to extend the life of the MSA fund.
About Shawn Deane
Shawn Deane is General Counsel who leads the legal team at Ametros. He has over a decade of experience practicing law and in Medicare Secondary Payer (MSP) compliance as an industry thought leader. He was previously Vice President of Medicare Compliance & Policy at ISO Claims Partners. Prior to that he practiced insurance defense litigation and healthcare law.
He has been heavily involved with The National MSP (Medicare Secondary Payer) Network, formerly the National Alliance of Medicare Set-Aside Professionals (NAMSAP). He served as chair of its webinar and education committees, on the Board of Directors, and was the organization’s President in 2017. Shawn was also an executive committee member with the Medicare Advocacy Recovery Coalition (MARC). Shawn is faculty for the Certified Medicare Secondary Payer Professional Program (CMSP).
Shawn is a member of the Massachusetts Bar and is licensed in both state and federal courts in Massachusetts. His law degree is from the Massachusetts School of Law. He also holds a master’s in education from Cambridge College and undergraduate degree from Berklee College of Music. He resides north of Boston with his family and strives to live by the following: “Be Kind. Do Right. Serve Others. Work Hard. Have Fun.”
Shawn can be reached at firstname.lastname@example.org.
Founded in 2010 and headquartered near Boston in Wilmington, Massachusetts, Ametros is the industry leader in post-settlement medical administration and a trusted partner for thousands of members receiving funds from workers’ compensation and liability settlements. The company makes healthcare easy for injured individuals and other people who pay for their medical care out of pocket. Ametros’ mission is to protect and empower the future of medical care by helping its members save money on medical expenses and save time and reduce frustration dealing with the complex healthcare system. Ametros may be reached at 877.275.7415 or via ametros.com.