CLM Magazine

DEC 2017

Claims Management Magazine informs and educates claims, risk, and litigation management professionals on the news, trends, products and services that lead to the efficient, cost-effective resolution of property & casualty claims.

Issue link: http://theclm.claimsmanagement.epubxp.com/i/913480

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In 2001, The Centers for Medicare and Medicaid Services (CMS) introduced a voluntary Workers Compensation Medicare Set-Aside (WCMSA) review program. Its purpose was to prevent a primary payer (liability, workers compensation, or no-fault carrier/plan/ self-insured entity) from shifting its future- care payment burden to Medicare. In workers compensation settlements with Medicare beneficiaries, parties can protect Medicare's interests by creating, and having the claimant set aside, funds that are injury-related and that would otherwise be covered by Medicare. If review thresholds are met, CMS will review and approve a proposed WCMSA amount. As the WCMSA review process is voluntary, parties can also incorporate a Medicare Set-Aside (MSA) into a settlement without CMS approval. Post settlement, the claimant then places the WCMSA funds in a separate, interest- bearing checking account and uses the WCMSA funds to pay for injury-related care instead of billing Medicare. While CMS did institute a process for workers compensation MSAs, CMS, to date, has not created a formal process for Liability Medicare Set- Asides (LMSAs) and No-Fault Medicare Set-Asides (NFMSAs). However, since 2012, CMS has been taking incremental steps, through issued guidance, toward instituting a similar review process for LMSAs and NFMSAs. The LMSA/ NFMSA review process could be in place at CMS as early as July 1, 2018. Additionally, even though no formal process is in place, many liability settlements with Medicare beneficiaries are beginning to incorporate LMSAs to protect Medicare's interests. Because MSAs have become the established best practice for settlements with Medicare beneficiaries, primary payers have felt a squeeze on settlements due to high MSA amounts. Submitters of MSAs to CMS would be wise to implement both a clinical and legal strategy to the proposed MSA to avoid unnecessary counter-highs and overinflated MSA amounts. HOW TO SUCCEED WITH CMS FROM A MEDICATION STANDPOINT Historically, the primary driver of WCMSA costs has been prescription drugs. Due to the over-simplification of the MSA calculation (current treatment multiplied by the rated life expectancy), a 32-year- old claimant with $2,000 of monthly prescription medication expenses becomes very costly. Beyond the cost, however, is the fact that many of the prescription drugs used for pain (opioids, benzodiazepines, muscle relaxants, anti-epileptics, and antidepressants) are neither FDA-approved nor clinically appropriate for long-term (i.e. rated life expectancy) use. 30 CLM MAGAZINE DECEMBER 2017 CLINICAL AND LEGAL ADVOCACY IN A WCMSA STRATEGIC APPROACHES FOR COST MINIMIZATION IN MEDICARE SET-ASIDES By Mark Pew and Heather Sanderson

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