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.

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Page 32 of 43

THECLM.ORG CLM MAGAZINE 33 Building Partnerships That Last IN COMMERCIAL TRANSPORTATION CLAIMS SINCE 1962 CARGO HEAVY EQUIPMENT ENVIRONMENTAL 24 365 HOTLINE PROVEN EXPERIENCE MSP states the employer's responsibility under the Medicare Secondary Payer Act must be demonstrated (see 42 U.S.C. §1395y(b)(2)(B)(ii)). That is, the employer must have or have had the responsibility to make payment with respect to the item or service (e.g, the medical services). As for case law, the recent Caldera v. The Insurance Company of the State of Pennsylvania decision determined that Medicare cannot force an employer/carrier to be responsible for payment regarding injuries/treatment that the carrier would not be responsible for under state law. With that background in place, let's look at the practical application of state law and MSAs. It is important to recognize that the contractor reviewing WCMSAs—the Workers Compensation Review Contractor (WCRC)—does have attorneys on staff to review legal issues. However, WCMSA submitters should not expect CMS to figure out the submitter's legal argument. The submitter must argue the binding nature of the state law and/or the court order to CMS in its WCMSA proposal. More importantly, the submitter must provide a copy of the relevant state law or court order in the submission package. Legal advocacy and persistence in driving the employer's/carrier's legal position on the workers compensation claim is imperative when preparing WCMSA submissions for CMS approval. Legal advocacy with state laws and court orders can be extremely helpful to an employer/carrier when submitting WCMSAs to CMS. The bottom line is that both clinical and legal advocacy in a WCMSA make for a complicated process, but they can create substantial savings when submitting the allocation to CMS. Clinically inappropriate treatment, particularly costly prescription drugs that create more short/long-term harm than benefit, should not be part of the WCMSA submission. Replacing that treatment with less dangerous and more efficacious treatment is complex, challenging, and potentially time consuming. When the costs are high, and a risk to human life exists, the stakes for doing it right are high. In this case, doing it right might require an investment of money and time, but the payoff will certainly be worthwhile. K Mark Pew is senior vice president for PRIUM. He can be reached at mpew@ Heather Sanderson is chief legal officer for Franco Signor. She can be reached at heather.sanderson@ CLINICAL AND LEGAL ADVOCACY IN A WCMSA

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