Page 1 Recording of this session via any media type is strictly prohibited. Page 1 Medicare Secondary Payer Compliance: Perspectives Within the Industry

Page 2 Recording of this session via any media type is strictly prohibited. James S. Price, ARM, CMSP Senior Consult AON Global Risk Consulting Michele Adams, Director, Claims Management & Business Strategies, Walt Disney World Resort Neil Selman, Esq. Attorney/Partner, Selman Breitman Aaron Frederickson, Esq. Chief Legal Officer, MSP Compliance Solutions, LLC

Page 3 Recording of this session via any media type is strictly prohibited. What to Expect Understand how the conflict between law and policy has shaped MSP compliance Appreciate the impact of MSP compliance on the law and claims management Identify the compliance assistance available from service providers

Page 4 Recording of this session via any media type is strictly prohibited. Key MSP Numbers to Consider $524B – CMS 2014 Budget $1.84b – CMS WCMSA “saving” for K WCMSA per year (cost our industry $66m – $96mm PER YEAR) Since7/23/2001 est. $55B in MSA trusts CMS cannot say how much actually pay out of MSA trusts for Medicare items and services So-called LMSA “tax” could easily double these amounts!

Page 5 Recording of this session via any media type is strictly prohibited. Medicare Secondary Payer Act 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), 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 [3] or can reasonably be expected to be made [3] 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.

Page 6 Recording of this session via any media type is strictly prohibited. 42 C.F.R. §411.46—Lump Sum Payments (a) Lump-sum commutation of future benefits. If a lump-sum compensation award stipulates that the amount paid is intended to compensate the individual for all future medical expenses required because of the work-related injury or disease, Medicare payments for such services are excluded until medical expenses related to the injury or disease equal the amount of the lump- sum payment.

Page 7 Recording of this session via any media type is strictly prohibited. (b) Lump-sum compromise settlement. (1) A lump-sum compromise settlement is deemed to be a workers' compensation payment for Medicare purposes, even if the settlement agreement stipulates that there is no liability under the workers' compensation law or plan. 42 C.F.R. §411.46—Lump Sum Payments

Page 8 Recording of this session via any media type is strictly prohibited. (b) Lump-sum compromise settlement. (2) If a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition, the settlement will not be recognized. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, Medicare will not pay for treatment of that condition. 42 C.F.R. §411.46—Lump Sum Payments

Page 9 Recording of this session via any media type is strictly prohibited. “There should be no recovery of benefits paid for services rendered after the date of a liability insurance settlement. However, the entire amount of a settlement is subject to recovery, whether the liability payment is made at the time of the settlement, or over a period of time agreed to by the parties in a structured settlement.” Question: Why is Chapter 7 now “Under Review” by CMS and not a part of the current MSP Manual? MSP Manual Chapter 7, Section “Contractor Action If a Liability Claim Is Pending and Medicare Benefits Were Paid”

Page 10 Recording of this session via any media type is strictly prohibited. LMSAs in the Federal Courts “Prove up cases” and so-called LMSAs Finke v. Hunter’s View, 2009 U.S. Dist. LEXIS (D. Minn. 2009) Big R. Towing v. Benoit, 2011 U.S. Dist. LEXIS 1392 (W. D. La. 2011) Frank v. Gateway Ins. Co., 2012 U.S. Dist. LEXIS (W. D. La. 2012) Bertrand v. Talen’s Marine & Fuel, LLC, 2012 U.S. Dist. LEXIS (W. D. La. 2012) Early v. Carnival Corp., 2013 U.S. Dist. LEXIS (S. D. Fla. 2013)

Page 11 Recording of this session via any media type is strictly prohibited. MSP and Future Medicals Medicare Program; Medicare Secondary Payer and “Future Medicals,” CMS-6047-ANPRM Seven proposed options for a consolidated “future medicals” program Industry response was “not helpful” to CMS Many challenged CMS statutory/regulatory authority To date, CMS has NOT done anything further What will CMS and MSA industry’s next move be? What should be YOUR next move?

Page 12 Recording of this session via any media type is strictly prohibited. James S. Price, ARM, CMSP (415) Michele Adams (407) Neil Selman (310) Aaron Frederickson (651) Questions, Final Comments and Contact Information