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Charleston County Bar February 14, 2014
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Medicare Insurance Worker’s Compensation Insurance Medicare Secondary Payer Regulations Cost Projections Affordable Care Act Preparing for Settlement Settlement Language Roadblocks to Successful Settlements Post Settlement Issues Overview ProjectWorks2
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Registered Nurse Certified Nurse Life Care Planner Medicare Specialist Certified Consultant Legal Nurse Consultant Certified Disability Management Specialist Certified Case Manager Certified Insurance Rehabilitation Specialist Who Am I? ProjectWorks3
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15 years clinical and community health nursing 15 years medical case management nursing 15 years legal nurse consulting and life care planning 5 years Medicare compliance Experience ProjectWorks4
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Jenny Glasgow Medical Case Manager ProjectWorks Shawn Davis Paralegal Joye Law Firm Team ProjectWorks5
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Ask/answer questions of me Ask/answer questions of each other Offer comments Bring your own experiences to this seminar A lot of information today Your Class ProjectWorks6
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How many represent plaintiff clients How many represent carrier/defense How many work only cases in SC How many work cases outside SC Who are you? ProjectWorks7
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Define and explain: MSPLOR SMARTCOB CHIPMSPRC ANPRMR&R WCMSALR LMSACMS ACAHELP ProjectWorks8 Pop Quiz
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If can answer less than 5, need to stay for full class If can answer 5-10, can use texting while in class If can answer 10-13, will be called upon to help teach If can answer all 14, provide contact information ProjectWorks9 Scoring
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MEDICARE INSURANCE ProjectWorks10 Part 1
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Eligibility Age Disability Certain medical conditions Premiums Part A Part B Part D Medigap Medicare Insurance ProjectWorks11
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Hospital, with per occurrence and daily co-pays Skilled nursing facility, with co-pays after 20 days Home health, skilled services only Medical office visits, with 80/20 co-pays Physical & occupational therapy, with 80/20 co-pays Durable medical equipment, with 80/20 co-pays Diagnostics, with 80/20 co-pays Counseling, with 65/35 co-pays General Coverage ProjectWorks12
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Significant co-pays Significant deductibles Significant exclusions Medications ProjectWorks13
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Medicare fee schedule Some physicians not accepting Medicare rates Billed rate, then adjustments on paid rate 80% of Medicare rate ProjectWorks14 Fee Schedule
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TNS unit and supplies Bathroom equipment Home attendant care Transportation Some wheelchair equipment Dental services Vision and hearing services and equipment Podiatry visits Not covered ProjectWorks15
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Chart on Medicare coverage Handout #1 ProjectWorks16
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WORKERS COMPENSATION INSURANCE ProjectWorks17 Part 2
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Payment of all inpatient treatment Payment of all outpatient treatment Payment of prescription drugs Payment of durable medical equipment WC Insurance ProjectWorks18
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Payment of all required premiums Employers buy insurance from WC carriers Employers are self insured State Accident Fund ProjectWorks19 WC
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No co-pays No deductibles No exclusions ProjectWorks20 WC
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Claim’s administration Pays bills Schedules appointments Reports to CMS Negotiates rates Authorizes treatment Case management ProjectWorks21 WC
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Each state has its own WC fee schedule Differs from Medicare fee schedule Differs from group health insurance fee schedule SC WC fee schedule updates about every 5 years Providers offer additional discounts to WC carriers ProjectWorks22 WC
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Medical mileage reimbursement Transportation to/from medical appointments Pays for out of pocket expenses ProjectWorks23 WC
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Medicare covers whole body but has co-pays and deductibles Workers Compensation has no co-pays and deductibles but covers injury related parts only ProjectWorks24 Summary
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MEDICARE SECONDARY PAYER ProjectWorks25 Part 3
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MSP regulations, 1980 Medicare Secondary Payer SMART Act, January 2013 Strengthening Medicare and Repaying Taxpayers ANPRM, October 2013 Advanced Notice of Proposed Rule Making cms.gov ProjectWorks26 MSP
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Says Medicare is secondary to all other insurances and medical funding, including settlements Group health insurance VA benefits Workers Compensation Auto liability insurance Any liability coverage Settlements ProjectWorks27 MSP
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…for past medical payments …for current treatment …for future medical care ProjectWorks28 Secondary
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Who is impacted Class 1: already a Medicare beneficiary Class 2: going to be a Medicare beneficiary within 30 months MSP ProjectWorks29
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CMS will do a pre-settlement review: Already a Medicare beneficiary and settlement $25,000 or more (Class 1) Going to be a Medicare beneficiary within 30 months and settlement $250,000 or more (Class 2) ProjectWorks30 MSP
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Post-settlement review for all cases CMS very often wants more than MSA allocation How to handle this Who is responsible for additional monies Settlement language ProjectWorks31 MSP
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Impacts Worker’s Compensation cases Impacts Liability cases MSP ProjectWorks32
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Affects all parties Insurance carriers Defense attorneys Plaintiff attorneys Claimants Physicians and providers ProjectWorks33 MSP
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4 questions to ask each and every client Handout #2 ProjectWorks34
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Consider each case as being impacted until proven not to be Categorize each case as: Not impacted Class 1 Class 2 Universal Precautions ProjectWorks35
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Add 4 questions to intake sheet Add 4 questions to settlement checklist Be mindful of age and hitting the 62.5 mark ProjectWorks36 Do
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Continuously update records with information Insurance coverage Application to SSDI Application to SSI Medicaid eligibility Medicare eligibility Social Security Administration correspondence ProjectWorks37 Do
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Obtain copies of all insurance cards ProjectWorks38 Do
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Sign in-house medical authorization Sign CMS authorization ProjectWorks39 Do
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Look at internal file management systems Look at daily work flow Look at computer management programs ProjectWorks40 Do
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Look at contract language Do you need to add anything to clarify Additional expenses for experts Reporting requirements Other case costs specific to MSP Outsourcing to experts ProjectWorks41 Do
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Start educating client from day 1 on settlement impact of MSP ProjectWorks42 Do
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Plaintiff and defense work together to obtain all necessary reporting information for CMS ProjectWorks43 Do
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Questions Comments Discussion This was the easy stuff ProjectWorks44 Break
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Regulations require reasonable consideration for future medical treatment Regulations require reasonable consideration for future prescriptions Pay back of any/all conditional payments made More MSP ProjectWorks45
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Paralegal with Joye Law Firm Conditional payments her “specialty” Contact: Joye Law Firm: 843.725.4279 sdavis@joyelawfirm.com ProjectWorks46 Shawn Davis
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Set up claim with Medicare Coordination of Benefits (COB) and provide a copy of letter to MSPRC. These are two different offices. Include as attachments the signed Consent to Release and Proof of Representation forms (available on Medicare’s website). Conditional Payments ProjectWorks47
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Be sure the R&R letter includes the correct claim and/or policy number Will also provide you with a Case ID Number ProjectWorks48 Rights and Responsibilities
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Case ID Number is the “key” to the claim All treatment-related claims are filed under this Case ID Number All correspondence to Medicare should reference this Case ID Number Contact Medicare if receive correspondence with more than one Case ID Number to get all claims moved to the correct case Make sure other cases are closed ProjectWorks49 Case ID Number
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Notify Medicare of all treatment-related claims by provider, date of service, and total charge amount Request specifically a “conditional lien amount” to avoid getting a final demand amount Be sure to review all claims outlined in the conditional lien letter from Medicare to ensure related to injury Send a Notice of Dispute to Medicare for any unrelated claims ProjectWorks50 Requesting Conditional Lien
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Send notice of settlement letter to Medicare and request “final demand” Include injury summary, itemization of treatment- related claims, and settlement information This amount is the total paid to Medicare Be sure to request Release of Claim from Medicare when payment is sent Interest will run if not paid within 60 days of receipt of the letter ProjectWorks51 Requesting Final Demand
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Must have an account set up in order to access Must have Case ID Number in order to pull case information Upload Consent to Release and Proof of Representation forms if not noted on the portal as having been received ProjectWorks52 Medicare Portal
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Allows access to check status of Conditional Lien and/or Final Demand quicker instead of waiting on actual letter Portal still “under construction” phase, so be sure to always check the letter sent by mail Does not allow access to review claims paid ProjectWorks53 Access to Portal
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Letter of Representation Conditional Lien Notice of Dispute Notice of Settlement ProjectWorks54 Letters to Medicare
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send at the time of sign up or when notified Medicare has an interest for treatment-related claims ProjectWorks55 Letter of Representation
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At end of treatment or within 3 months of date of initial treatment Request updated conditional lien amount every 3 months ProjectWorks56 Conditional Lien
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At the time listing of unrelated claims is received ProjectWorks57 Notice of Dispute
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On the date of the settlement if certain will be able to pay within the next 60 days Interest starts to accrue on day 61 ProjectWorks58 Notice of Settlement
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Here are some, you might have others ProjectWorks59 FAQ
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Insurance carrier insists on putting Medicare on check or issuing payment directly to Medicare ProjectWorks60 #1
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Medicare sends final demand amount after receiving notice of settlement from insurance carrier ProjectWorks61 #2
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Medicare sends lien notice on third-party case when treatment is approved by WC carrier ProjectWorks62 #3
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Medicare opens more than one case for a specific date of injury ProjectWorks63 #4
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Notice of Representation to Medicare COB Rights and Responsibilities letter from Medicare Request for Conditional Lien Amount Notice of Dispute of Claim Notice of Medpay coverage Notice of Settlement, Request for Final Demand Payment of Medicare lien and Request for Release Handout #3: Packet ProjectWorks64
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Carrier At time of claim if WC case At settlement if liability case Every 3 months until medicals closed out (WC) Reporting to CMS ProjectWorks65
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Claimant If WC: After settlement, if MSA set up, annual reporting If liability: no reporting guidelines in place ProjectWorks66 Reporting to CMS
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Not all clients impacted by MSP are represented How do carriers handle MSP with non-litigated cases ProjectWorks67 Question
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Questions Comments Discussion ProjectWorks68 Session break
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COST PROJECTIONS ProjectWorks69 Part 4
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Is this a Work Comp case Is this a Liability Case Is this a third party case Is claimant impacted by MSP Do you have an MSA or requested one Are there discovery deadlines Is there a mediation date ProjectWorks70 My own questions
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Worker’s Compensation MSA Non Covered Allocation Disability Cost Projection Liability MSA Life Care Plan Cost Projections ProjectWorks71
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An apportionment tool Not required Whole settlement subject to spend down if no MSA Prepared prior to settlement Retrospective analysis WC MSA ProjectWorks72
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Written to protect Medicare’s interest Not a cost projection or a life care plan Typically prepared at request of carrier Based on last 2 years of medical/pharmacy records Payout history required Uses standard of care projection models No updated information from claimant or physician WC MSA ProjectWorks73
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CMS requires certain fields in the MSA: Medical treatment Prescriptions If annuitized, seed money and annual payments WC fee schedule WC MSA ProjectWorks74
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Rated age CDC life expectancy charts Off label drug review Pharmacy review AWP of drugs Limited standard of care scheduling Discounting factors ProjectWorks75
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Separate, interest bearing account Annual reporting to CMS Early approved withdrawal Inappropriate withdrawals Seed money to establish account Annual payments Death benefits Using MSA prior to becoming a beneficiary MSA Account ProjectWorks76
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MSA reporting paperwork Handout #4 ProjectWorks77
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Self Professional Required if brain injury or incompetent Full administration Limited administration Administration ProjectWorks78
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How do you educate your clients with MSA Who educates the docs on using the MSA Has anyone had feedback from clients using an MSA ProjectWorks79 Questions
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Both defense and plaintiff usually agree to MSA recommendations and amounts Knowing CMS will eventually review the MSA (if not done prior to settlement), important to include language in settlement documents regarding WHO will be responsible for additional amounts to fund the MSA Practice tips ProjectWorks80
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CMS guideline on MSA administration Handout #5 ProjectWorks81
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Medical Case Manager ProjectWorks Non-covered allocations Post settlement apportionments Cost Projections Contact: 843.813.7375 ProjectWorks82 Jenny Glasgow
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Medicare says “thou shalt not shift the burden to Medicare” MSA protects Medicare’s interests but only addresses the treatment and costs of Medicare covered items ProjectWorks83 Non Covered Allocation
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In essence, then, when medicals are closed out using a MSA, the carrier is shifting a portion of the burden to the claimant UNLESS the non-covered treatment and costs are also considered, along with all the other administrative costs typically paid for by WC insurance ProjectWorks84 Burden Shift
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New trend Negotiation tool Informed decision Protects claimant Protects attorney ProjectWorks85 NCA
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Companion report to WC MSA Prepared before settlement, part of negotiations Plaintiff requests report Written to protect claimant’s exposure Current medical/prescription information No discounting factors or reduced life expectancy NCA ProjectWorks86
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Administrative costs Cost of required premiums Cost of co-pays/deductibles for covered prescriptions Cost of non-covered prescriptions Cost of non-covered medical treatment Cost of transportation ProjectWorks87 Costs not covered
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Self Administration Professional Administration ProjectWorks88 Administrative Costs
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Part A—required by CMS Part B—required by CMS Part D—optional, but no drug coverage without it Medigap—optional, covers co-pays and deductibles Penalties if not purchased when first eligible Open enrollment period Qualifying event ProjectWorks89 Required Premiums
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Annual deductible 25% co-pay until reach donut hole, standard level 50% co-pay while in donut hole 5% co-pay after donut, catastrophic level If no Part D insurance, or drug plan, then claimant pays 100% of all drug costs ProjectWorks90 Prescription co-pays
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Benzodiazepines Barbiturates Weight loss Erectile dysfunction No over the counter preparations or drugs ProjectWorks91 NC Prescriptions
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Home attendant care Any bathroom equipment TNS unit Wheelchair accessible vans Home modifications NC Medical treatment ProjectWorks92
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Multiply $18 by 8 by 365 by 25 ProjectWorks93 Exercise
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$1,314,000.00 ProjectWorks94 Answer
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Mileage reimbursement for medical appointments ProjectWorks95 Transportation
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Comparison chart for MSA and NCA Handout #6 ProjectWorks96
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Some actual figures Handout #7 ProjectWorks97
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Typically prepared for WC cases only Based on standard of care or specific medical recommendations Uses WC fee schedule Not reduced to present day value or factored for inflation Informational tool only, not used as basis for expert testimony Disability Cost Projection ProjectWorks98
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Addresses: Surgery Diagnostics Physician visits Therapy Equipment Injections Other DCP ProjectWorks99
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Prepared after: Interview with client Review of medical records Review of depositions Review of 14B Standard of care protocol Research costs DCP ProjectWorks100
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Sample disability cost projection, MSA, and non- covered allocation Handout #8 ProjectWorks101
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Comments Questions Discussion Before we get to the really hard stuff ProjectWorks102 Break
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Warning: enter at your own risk Content may be harmful to your mental health Management not responsible for damages Expletives allowed ProjectWorks103 Liability MSA
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Liability MSA is truly a plaintiff problem and a plaintiff attorney responsibility ProjectWorks104 Personal commentary
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Not required Voluntary basis No review process in place Minimal guidelines from CMS An apportionment tool to avoid 100% spend down Prepared post-settlement Documents claimant’s consideration of Medicare’s interest ProjectWorks105 Liability MSA
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Settlements below $300 have no obligation Settlements between $300 and $5,000 can set aside 25% to satisfy MSP/CMS If physician provides a letter stating no future treatment needed, can project a zero allocation….but still need the document packet ProjectWorks106 CMS guidelines
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Carrier reports case at time of settlement Plaintiff responsibility to consider Medicare’s interest for conditional payments and future medical treatment Plaintiff determines need for apportionment tool, the voluntary MSA ProjectWorks107 Liability MSA
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Steps to take when considering MSA for liability cases We are going to spend a lot of time on this topic If need additional information, call me, or call someone with knowledge and experience ProjectWorks108 Special Section
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If Medicare lien (conditional payment) exceeds amount of settlement, negotiate with CMS for waiver or reduced repayment amount Pay back the money…………………..or else ProjectWorks109 Conditional Payments
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Does the settlement include money for future medical care? General or implicit language Release to “any and all future claims” Specific or explicit language A specific dollar value ProjectWorks110 Settlement Language
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If yes to either implicit or explicit language, best course is to consider if MSA needed ProjectWorks111
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Is Medicare going to be primary payer at time of settlement or shortly (30 months) thereafter Future medical care must be recommended Settlement monies must be available for future medical care ProjectWorks112 Do you need MSA
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If not going to be a Medicare beneficiary at time of settlement or shortly thereafter, document file showing how you arrived at this and retain documents forever ProjectWorks113 If “no”
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If no future treatment going to be needed, get medical documentation, document file showing how you came to this conclusion and retain all correspondence and documents forever ProjectWorks114 If “no”
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Even if claimant will be eligible for Medicare at time of settlement or shortly thereafter, and even if there will be future medical care needed, there might not be enough money left over to set aside for anything………………. ProjectWorks115 Enough money?
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Start with settlement amount Subtract: Attorneys fees Case costs Conditional payment lien Any other liens, such as Medicaid, VA, group health Lost wages and lost earning capacity Pain and suffering ProjectWorks116 Calculating available funds
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Out of pocket expenses for future treatment Home attendant care Transportation Home modifications Non-covered equipment Non-covered prescriptions OTC drugs Co-pays and deductibles Insurance premiums ProjectWorks117 Then subtract
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If net recovery is close to gross damages, then use reasonableness standard to determine if MSA needed If net recovery not close to gross damages, then can calculate percentage of monies available Need attorney to help you with this ProjectWorks118 Net recovery
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Need to calculate value of future medical treatment Cost projection or life care plan Eliminate all non-covered treatment Use discounting factors allowed by CMS Determine dollar amount of available money MSA should be the lower amount of the amount of future treatment or the net recovery ProjectWorks119 If money available
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To have MSA prepared by someone who can meet CMS guidelines, while minimizing the impact to the claimant Prospective analysis, not retrospective work that is done for WC MSA Be cost effective for the claimant Be consistent and reliable ProjectWorks120 Critical
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Setting up MSA account Administration of MSA monies Funding the MSA account Attestation language, letters, documents ProjectWorks121 Educate client
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Retain for your file forever: Questionnaires on eligibility Medical records pertaining to future medical care Questionnaires to physicians for zero allocation MSA determination packet Client attestation letters ProjectWorks122 Documentation
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Do you do all this yourself Do you outsource Where to get help ProjectWorks123 Outsourcing
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Sample questionnaire to physician ProjectWorks124 Handout #9
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CMS memo of 9-30-11 regarding exposure claims ProjectWorks125 Handout #10
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Sample attestation language Sample letter to client ProjectWorks126 Handout #11
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Questions Comments Discussion ProjectWorks127 Session break
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Used in catastrophic liability cases Follows standard methodology Build a strong medical foundation Usual and customary fee schedule Collateral source rule Economic analysis Basis for deposition and trial testimony Life Care Plan ProjectWorks128
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If costing surgical procedures, then use disability cost projection If this, then that ProjectWorks129
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If a WC case not impacted by MSP, then use disability cost projection ProjectWorks130
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If a WC case impacted by MSP, then need MSA ProjectWorks131
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If a WCMSA prepared, then need non covered allocation ProjectWorks132
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Liability case: Pre-settlement: full life care plan for damages Post-settlement, if impacted by MSP: Cost projection or life care plan broken down into covered vs. non-covered expenses Voluntary MSA ProjectWorks133
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Compliance tips ProjectWorks134 Handout #13
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SMART act summary ProjectWorks135 Handout #14
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Questions Comments Discussion By now, eyes are glazed, brains are numb Session Break ProjectWorks136
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AFFORDABLE CARE ACT ProjectWorks137 Part 5
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As we go through the next set of slides, think through each of the points and consider how each will impact/affect either a worker’s compensation case or a liability situation….. …..and especially if have any bearing on settlements Affordable Care Act ProjectWorks138
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Essential benefits Mandatory coverage No pre-existing exclusions No lifetime maximum Tiered level of co-pay Qualifying event Provides treatment for injury or disability Provides treatment for rehabilitation Affordable Care Act ProjectWorks139
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All policies, through either the state exchange or through federal program have to include: Ambulatory patient services Emergency services Hospitalization Laboratory services Maternity and newborn care Mental health services and addiction treatment Rehabilitation services and devices Pediatric services Prescription drugs Preventive wellness services and chronic disease treatment Essential Benefits ProjectWorks140
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Can stay on parent’s policy until age 26 Can be on employer provided policy Can purchase own policy through state program Can become eligible for Medicare either by age or through SSDI program Can qualify for Medicaid SC did not expand Medicaid eligibility criteria as some states did Mandatory Coverage ProjectWorks141
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No pre-existing condition exclusion No lifetime maximums Has own network of providers Fee schedule for payment ProjectWorks142 ACA policy
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Can purchase varying levels of co-pay options from 60/40 to 80/20 ACA says there is a 90/10 premium tier level available, but not commonly available yet Maximum out-of-pocket amounts determined to be $6350 for individuals Need to make sure policy has dual coverage for medical and prescriptions, or there will be a dual out-of-pocket amount of $6350 for medical and another $6350 for prescriptions Tiered level of co-pay ProjectWorks143
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Can purchase individual and family insurance coverage through state exchanges during open period Can purchase a policy if there is a qualifying event, but have a 60-90 day window Can purchase a policy for short periods of time. An example being to fund coverage while waiting for Medicare eligibility. Enrollment ProjectWorks144
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Loss of coverage due to injury Loss of coverage due to termination of benefits Loss of coverage due to inability to work ProjectWorks145 Qualifying Event
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Prior to ACA, injury and other medical conditions often were classified as pre-existing and excluded from insurance coverage With ACA, injury/disability and all medical conditions are now fully covered without waiting periods, higher premiums, or excluded completely Injury/Disability ProjectWorks146
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ACA covers rehabilitation treatment for injuries, including hospitalization, medical treatment, medications, counseling, physical therapy, and equipment Rehabilitation ProjectWorks147
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All folks All conditions Medical treatment Prescriptions Coverage ProjectWorks148
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Need discussion on what is non-covered and importance of being able to identify and calculate for this Non-Covered ProjectWorks149
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Discussion Impact on WC Cases ProjectWorks150
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Discussion Impact on Liability Cases ProjectWorks151
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Questions Comments Discussion Session Break ProjectWorks152
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PREPARING FOR SETTLEMENT ProjectWorks153 Part 6
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Determine Medicare and Medicaid liens Determine group health liens Determine public benefits protection Determine MSP impact future treatment Preparing for Settlement ProjectWorks154
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Determine group health liens ProjectWorks155 Preparing for Settlement
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Determine public benefits funding and protection ProjectWorks156 Preparing for Settlement
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Determine MSP future treatment impact ProjectWorks157 Preparing for Settlement
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Have cost projection Have MSA Have non-covered allocation Have life care plan ProjectWorks158 Preparing for Settlement
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Have annuity figures ProjectWorks159 Preparing for Settlement
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SETTLEMENT LANGUAGE ProjectWorks160 Part 7
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WC, not impacted by MSP WC, impacted by MSP Liability, not impacted by MSP Liability, impacted by MSP Settlement Language ProjectWorks161
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Sample settlement language for WC case not impacted by MSP Sample settlement language for WC impacted by MSP ProjectWorks162 Handout #12
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Intake sheets Contracts Pre-settlement conferences Settlement discussions At disbursement Follow-up letters Attestation documents Packets of information Client Education ProjectWorks163
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ROADBLOCKS TO SUCCESSFUL SETTLEMENTS ProjectWorks164 Part 8
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POST SETTLEMENT ISSUES ProjectWorks165 Part 9
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Final thoughts ProjectWorks166
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Karen Shelton 843.270.0140 karen.projectworks@gmail.com www.projectworks4.com Contact ProjectWorks167
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