MEDICARE COMPLIANCE: An Ounce Of Prevention is Worth a Pound of Cure! Presented For: LTC RISK LEGAL FORUM Presented by: Thomas S. Thornton, III Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 tthornton@carrallison.com (205) 949-2936

General Philosophy Medicare should not drive how you defend or evaluate your case for settlement! Your evaluation and exposure on any one claim should drive how you respond to Medicare!

General Philosophy Your exposure under the Medicare Act begins and should thus end with the execution of the Release! There Is Not a Right Way or Wrong Way; Just a Preferred Method to Address Medicare Compliance!

Problems Plaguing The Industry We are Being Reactive as Opposed to Proactive Attorneys Claim Handlers The Hayes Lawsuit Mis-Information from Vendors Mythical Level Of Compliance

Medicare Secondary Payer Act And Impact Upon Claim Program Section 111 Reporting and Ensuring Compliance When and How To Address Medicare’s Existing Lien When and How To Address Medicare’s Future Interest

Section 111 Reporting and Impact Upon Claim Programs!

Section 111 Reporting and Impact Upon Claim Programs! Potentially Impacts Every Release Section 111 Reporting Obligations: Three Questions to be Asked: Was the Claimant Ever or are they a Current Medicare Beneficiary? Were Medicals Claimed or Released with the Settlement? Was the Payment/Consideration (TPOC) Above the Section 111 Reporting Threshold?

Section 111 Reporting and Impact Upon Claim Programs! Reporting Thresholds: Currently $2,000.00 and reduced to $1,000.00 on October 1, 2014 Impact of SMART ACT Impact of Beneficiary Status: Medicare’s Existing Lien Medicare’s Future Interest

Lien Reimbursement and Impact Upon Claim Handling Programs!

Lien Reimbursement and Impact Upon Claim Programs! Section 111 Reporting Dictates Need for 100% Compliance Do Not Care Who Reimburses Medicare’s lien! Just need assurance that it is Reimbursed Problems Plaguing Industry Cart before the horse!

Lien Reimbursement and Impact Upon Claim Programs! Factors Impacting Medicare’s Lien Recovery: Can not circumvent obligation to Medicare $1,000.00 Exemption Regulatory Cap on Medicare’s Recovery Medicare Advantage Plan Recovery:

Strategies in Addressing Medicare’s Lien Exposure Options for Addressing Lien Exposure: 25% Reimbursement Option Assume Responsibility of Lien Pro Se vs. Represented Assign Responsibility For Reimbursement: Medicare Included as Payee Withhold all proceeds Withhold Percentage of Proceeds Release All Proceeds with Percentage Held in Plaintiff’s Attorney Trust (Haro Decision)

Medicare’s Future Interest and Impact Upon Claim Handling Program

Medicare’s Future Interest and Impact Upon Claim Handling Statutory Requirement? Regulatory Requirement? Medicare’s Claim Handling Manual? Memorandum and Alerts!

Medicare’s Future Interest and Impact Upon Claim Handling Mythical Level of Compliance Causes Confusion: What is a Medicare Set Aside September 29, 2011 CMS Memorandum Region V’s MSP Regional Coordinator’s 2011 Handout Medicare’s Advance Notice of Rule Making

Medicare’s Future Interest and Impact Upon Claim Handling Options With Addressing Medicare’s Future Interest on Liability Claims Do nothing; Informally address Medicare’s interest within the settlement documents without the involvement of a third party; ($0.00 Assessment) Involve a third party vendor to prepare an allocation report without submitting it to Medicare for potential approval; Obtain an allocation report and submit same to Medicare for approval.

Strategies Relating to Medicare & Your Claim Handling Program Do Not Lose Sight of the Goal With the Claim Know the Answer Before the Question Arises Be Proactive and Not Reactive With Approach to Case Resolution

Strategic Approach To Claim Handling Protocols Establish Protocols & Procedures to Negotiate and Resolve Files and Document thru Releases Perform risk analysis Understand Strategic Options to Achieve Compliance and Resolve Cases Pro Se vs. Represented Medicare’s Future Interest

Strategic Approach To Claim Handling Protocols Preparation for Settlement! Confirmation of current (or former) Medicare status; Strategy to Address Lien Reimbursement; Reasonable assessment of Plaintiff’s future medical needs

Medical Bill Reductions and Write-Offs Loss of Consortium Claims Uh Oh Moments! Medical Bill Reductions and Write-Offs Reportable? Documented through submission of bills Loss of Consortium Claims Employment, Retaliatory Discharge, Professional Lines Claims Lack of Medical Treatment/Lien Wrongful Death Tendered Cases

Uh Oh Moments! Not including the appropriate release langue or settlement package Pre-litigation communication with Medicare Damages In Excess of Settlement Offer Offer of Judgment Trials and Verdicts. Protecting Medicare’s interest!

MSP Compliance Where Are We Heading 1) Impact of the SMART Act On Claim Handling Programs Regulatory Amendments and Proposed Rule Making Judicial Developments and Trends

Questions Be Proactive Not Reactive Do Not Lose Sight of Goal of Claim Do Not Allow Medicare to Dictate Value of Claim

ALABAMA - FLORIDA - MISSISSIPPI - TENNESSEE Thomas S. Thornton, III Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 tthornton@carrallison.com (205) 822-2006 www.carrallison.com www.uslaw.org ALABAMA - FLORIDA - MISSISSIPPI - TENNESSEE