The Mediator might rule against me.
Category to place the post in the last group of the blog page and not in the featured posts sections.
“MSA” stands for Medicare Set-Aside. Settling a Workers Compensation claim often calls for consideration of Medicare’s interests. MSA-speak has its own language. The problem is that the term “MSA” is used to mean different things. Understanding the 4 different items which may be referred to as “MSA” is critical to success in this area:
The MSA Report is prepared by an MSA allocation company. It is an analysis of medical reports and paid medical benefits resulting in a recommendation for an MSA allocation. The report typically provides both lump sum and annuitized funding options. The report is not “the MSA”. Multiple versions of a report may be prepared during evaluation and negotiation. Nothing has been “set aside” just because there is a report.
The MSA Allocation must be in good faith. The parties can agree on an allocation without a report, though this is usually limited to cases brought by Medicare beneficiaries which settle for less than $25,000 and denied cases where the settlement is unrelated to medical expenses. An allocation in a settlement document can be as simple as “The parties have taken Medicare’s interests into account and set aside $800 for future Medicare-eligible claim-related expenses.”
Parties can choose to seek from the Centers for Medicare and Medicaid Services (“CMS”) Approval of an MSA allocation. Seeking approval is optional. Only the two classes of cases which meet CMS “review thresholds” can be submitted. Class One includes all cases brought by Medicare beneficiaries settling for at least $25,000. Class Two includes cases where the settlement is at least $250,000 and the worker is likely to be eligible for Medicare within 30 months. If CMS approves the allocation, it cannot seek more than the approved amount later.
Upon conclusion of the settlement, the worker will open an MSA Account. This must be a separate account solely for MSA funds. It is supposed to be interest bearing, though it may be difficult to find an institution that would pay interest on smaller accounts. If any of these concepts can be called simply “the MSA”, it is the account. Money has in fact been set aside, separate from the rest of the settlement and separate from the worker’s other assets. Note that the correct term is “account”, not trust. MSA Accounts can be custodial or non-custodial.
“Do we need an MSA?” may be appropriate in referring to the entire process. And there are plenty of times you want to use a verbal shortcut. But vague references as to whether the subject is a report, allocation, approval or account can sometimes lead to misunderstandings.
Four kinds of public benefits can help people get the medical care they need:
These types of benefits are frequently confused, especially because the names are so similar. For optimal settlement of a Workers Compensation case, you need to know the injured worker’s eligibility for these plans.
Sometimes the issues the lawyers and adjusters are discussing are not what is most important to the Applicant.
Recently, in a pretty small case, the professionals told me the disagreements were about what had been paid and what was still due. The injured worker told me his biggest concern was that, although he had returned to modified duty, the employer had told him there was no more work for someone with his disability. The injured worker was terrified that he would be out of a job with no ability to get another one, but that is not what the lawyers were discussing.
Many times, the injured worker’s biggest issue is not one that is dispositive of any issue in the case, but, in fact, is the driver for the injured worker’s decisions– the proverbial elephant in the room the negotiators are trying to ignore.
Because these are often personal matters, the injured worker may not share these concerns with the employer’s side– or even the injured worker’s own lawyer.
“AFFORDABLE CARE ACT”
The term “Obamacare” is a nickname for the Affordable Care Act. But sometimes politics can get in the way of clear thinking. Click https://www.hulu.com/watch/539715 to see what I mean.
The Affordable Care Act encompasses much more than the purchase of private health insurance on an exchange like Covered California, www.CoveredCA.com. When discussing settlement with counsel and clients, talk about using “The Affordable Care Act” to avoid the emotions the term “Obamacare” triggers.
Make sure you mediate with someone who understands all the options for replacing medical benefits in our new healthcare environment.[contact-form-7 404 "Not Found"]
Resolving issues in Workers Compensation claims through mediation saves time, money and stress.
Multiple Appearances with Judge Can Accomplish Little
Multiple appearances which accomplish little costs all parties “opportunity time”, the opportunity to use the wasted time to accomplish something productive. Parties may become frustrated with the process, and this frustration sometimes impairs the abilities of the parties to move forward. Wasted time means wasted money.
In contrast, mediation is as fast and efficient as the parties want it to be. Mediations can be scheduled for a time and place of the parties’ convenience. As much time as is necessary can be allocated for the mediation. The issues to be resolved can be as narrow as definition of the industrial injury or as broad as conclusion of all indemnity, medical and penalty claims.
Mediation Facilitates Communication and Settlement
Mediation focuses the parties’ attention. This contrasts with a court appearance where an attorney may be juggling appearances in multiple courtrooms.
The mediation may be the only opportunity the injured worker gets to tell the story of the injury and treatment. For many injured workers, relating the narrative allows them to put it in the past and move on, a good result for all concerned.
This is an abstract of an article originally published at AMAXX Workers Comp Resource Center. Find the full article at https://blog.reduceyourworkerscomp.com/2013/09/how-mediation-saves-workers-compensation-dollars/
Many Workers Compensation professionals believe they must secure approval of a Medicare Set-Aside (“MSA”) before they can close out medical benefits. In California terms, professionals think they cannot complete a full Compromise & Release (C&R) without going through a lengthy administrative process. This is not true.
1) MMSEA reporting makes approval unnecessary for Medicare beneficiaries. Carriers and self-insureds already report at the beginning of a claim that they are assuming Ongoing Responsibility for Medicals and will report again when the claim is closed. By the time an MSA is done, Medicare’s systems already block payments for treatment to those body parts.
2) Approval is not and never has been required. The law merely requires that Medicare’s interest be taken into account, which is what you are doing when you incorporate the MSA terms into the C&R.
3) Approval does not protect anyone from liability. When a non-Medicare-beneficiary Applicant self-administers and spends the money incorrectly, all parties could be subject to reimbursement liability.
4) The Approval process is unnecessarily torpedoing your settlements.
Do get an MSA Allocation report. Do create a Set-Aside in accordance with the report. Consider a structured settlement arrangement to make sure the Medicare Set-Aside is paid over the claimant’s anticipated lifetime. Consider custodial administration for claims where it is cost-effective. Seek CMS approval for settlements with a gross amount in excess of $250,000, but don’t let the process ham-string your settlement.
This is an abstract of an article originally published at LexisNexis® Legal Newsroom Workers Compensation Law. Find the full article at https://tinyurl.com/7f2c8n9.