2016 Namsap Handout

Dear Attendees:
On behalf of the Board of Directors, committee leadership

and most importantly, our Annual Meeting Subcommittee,
we would like to personally welcome you to San Antonio
for the 12th Annual Meeting and Educational Conference.
It is an exciting time for those of us working in and
around the Medicare Secondary Payer (MSP) compliance
industry as we continue to grow and adapt, remaining
always flexible, motivated and responsive. Our industry is confronting a time of many changes and were
meeting these changes during a time of larger nation-wide and global change. The MSP industry is an
exciting area in which to work and well continue to meet and bring inspired people together in forums
like this, to ensure NAMSAP remains at the cutting edge.
Wed like to give you an idea of what you can expect and what we hope to achieve over the next few days.
The Annual Meeting Subcommittee has assembled an outstanding agenda with dynamic panelists
some of the industrys leading voices sure to deliver the latest educational information impacting the
roles of our almost 500 members consisting of attorneys, allocators, nurses, structure brokers, settlement
planners, claims professionals, professional administrators and many others.
We encourage you to join us for the welcome reception on Wednesday evening and to participate in
the scavenger hunt along the River Walk afterwards. On Thursday, take advantage of the networking
lunch to get to know your fellow attendees and continue those conversations on Thursday evening as
you take in the sights and sounds of the city and, perhaps a quick excursion to the Alamo or another
cultural attraction.
NAMSAP is continuously transforming the way we operate to improve our ability to serve as the leading
advocate for an efficient and effective MSP compliance system and to serve as the pre-eminent industry
resource for all involved parties. Our staff and partner professionals continue to meet the challenges of
our field and to excel despite setbacks. We should all be very proud of where we are today and excited
about where we are headed.
Before we close, wed like to thank each of your for attending this conference and bringing your expertise
to our gathering. You, as industry leaders, have the vision, the knowledge, the wherewithal and the
experience to help us pave our way into the future. You are truly our greatest asset today and tomorrow,
and we could not accomplish what we do without your support and leadership. Throughout this
conference, we ask you to stay engaged, keep us proactive and help us shape the future of NAMSAP.
Gary Patureau, CMSP, CWCP Michelle A. Allan, Esq.

2016 NAMSAP President & Co-Chairperson Co-Chairperson
Annual Meeting Subcommittee Annual Meeting Subcommittee
The ALAMOLLOCATION NAMSAP 2016
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Board of Directors
Hotel President
Gary Patureau, CWCP, CMSP
Information Executive Director/COO
Louisiana Association of Self-Insured Employers (LASIE)
Immediate Past President

Kimberly A. Wiswell, CMSP
Director of Operations, MEDVAL, LLC
Vice-President
Shawn Deane, JD, MEd, MSCC, CMSP
Assistant Vice President, Product Development
ISO Claims Partners
Treasurer
Greg Gitter, CMSP
President, Gitter & Associates, Inc.
San Antonio Secretary

Christine Melancon, RN, CCM, MSCC, CNLCP, CMSP
Marriott Riverwalk Vice President, EZ-MSA Services
889 East Market Street
San Antonio, TX 782058 Ciara F. Koba, Esq.
Telephone: (210) 224-4555 Associate, Burns White, LLC, Medicare Compliance Group
Matt Larkin, MSCC
Vice President of Sales, Experea Pharmacy Services, Inc., d/b/a
The Marriott San Antonio Riv- Pharmacy Trust Professionals
erwalk is located in the heart of
downtown San Antonio, offer- Leslie Schumacher, RN, CRRN, CCM, LNCC, CLCP, CNLCP,
ing sweeping balcony views of MSCC, CMSP
San Antonios fabulous River- President, PlanPoint, LLC
walk district. From its location Rita M. Wilson
in downtown San Antonio, ex- CEO,Tower MSA Partners, LLC
plore the historical, the cultural,
and the culinary along River- Education Committee
walk, just steps from the hotels Thomas F. Spratt, CMSP - Chairperson
door.
Shawn Deane, JD, MEd, MSCC, CMSP - Co-Chairperson
Staff
Executive Director
Brian S. Bailey
Continuing Education Coordinator
Liz Tinley
Meeting Planner
Angie Coleman
Marketing Coordinator
Jacqueline Peiffer
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Table of Contents
Divided We Stand - Medicare Advantage
Welcome ...................................................................... 2 Organization Case Law .................................................. 155
Hotel Information ..................................................... 4 Please Use Discretion: Civil Monitary Penalities ... 166
Table of Contents ...................................................... 5 The Current State of Conditional Payment
Continuing Education Information..................... 6 Recovery ............................................................................. 177
Pre-Conference Sessions ........................................ 8 Primary Payer Appeals ................................................... 212
Educational Sessions ............................................... 9 Adventures in Allocating .............................................. 235
2016 Annual Meeting & Educational CMS Trends on Liability Medicare Set-Aside
Conference Sponsors .............................................. 16 Arrangements ................................................................... 256
2016 Professional Partners .................................... 19 Settlement LanguageCovering All Bases ............. 269
Speaker Handouts .................................................... 24 State Law - Consequences and Outcomes ............. 308
MSP 101 - The Statute, the Regs, and the
Application .......................................................... 25 WCMSA Re-Review Process ........................................ 335
General Anatomy of the WCMSA
Reference Guide ................................................ 95 Whats Affecting Stakeholders? .................................. 349
WWCMSD What Would CMS Do? ................ 117
Workers Compensation
Settlements
We Help Achieve the Best Claim Resolution
The desire to provide for the future needs of

injured people sparked the creation of the
structured settlements industry and EPS
Settlements Group.
Since then, we have become the nations
preeminent structured settlement company,
due to the fact that we are a business based
upon experienced people, creative solutions,
innovation, and technology.
We have settlement options to cater to your
needs.
Because Life Goes On
Offices Nationwide www.epssg.com
800-354-4098
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Continuing Education
Information
Certified Nurse Life Care Planner Certification
Unless otherwise noted, the following membership Board (13 hours)
organizations or regulatory bodies have approved Board Certified Nurse Life Care Planners
the 2016 NAMSAP Annual Meeting & Educational (CNLCP)
Conference for a total of 16.75 continuing education Commission for Case Manager Certification
hours (3 for the pre-conference and 13.75 for the Case Manager Certification (CCM)
remaining agenda):
State Bar of Texas (CLE 16.75 hours)
Certification of Disability Management Texas Department of Insurance (15 CE Hours)
Specialist Commission CE-Medicare Related
Certified Associate Disability Management
Specialist (ADMS) American Hospital Association Certification
Certified Disability Management Specialist Center (AHA-CC)
(CDMS) Certified Professional in Healthcare Risk
Management (CPHRM)
Commission on Rehabilitation Counselor The American Hospital Association Certification Center
Certification (14.5 hours) (AHA-CC) does not review, pre-approve, or endorse
Certified Rehabilitation Counselor education programs as being eligible toward CPHRM
Florida Bar (CLE 20.1 hours) certification renewal requirements. Reported activities
are reviewed only when the completed Certification
Florida Board of Nursing Renewal Application is submitted
(provider status pending) in fulfillment of the CPHRM
certification renewal requirements.
Florida Department of
Financial Services Aging Life Care Association
(14 hours) Advanced Aging Life
Adjuster Care Professional
Health and Life Continuing education credits (CEU)
Insurance approved by the Commission for
Property and Casualty Case Manager Certification (CCMC)
International can be applied towards the Aging
Commission on Health Life Care Professional designation/
Care Certification advanced level membership with
the Aging Life Care Association,
(ICHCC)
formerly the National Association of
Certified Geriatric
Care Manager (CGCM) Geriatric Care Managers.
Certified Life Care Planner / Canadian Certified American Legal Nurse Consultant
Life Care Planner (CLCP/CCLCP) Certification Board
Medicare Set-Aside Certified Consultant (MSCC) Legal Nurse Consultant Certified (LNCC)
Louisiana Association of Self Insured Contact hours for all educational sessions in this
Employers (LASIE) conference can be applied towards LNCC certification
Certified Medicare Secondary Payer renewal.
Professional (CMSP)
Certified Workers Compensation Professional For more information regarding continuing education
(CWCP) for the 2016 Annual Meeting & Educational Conference
please visit www.NAMSAP.org or view information
on the mobile app. Additionally, Liz Tinley, NAMSAP
Continuing education certificates will be Continuing Education Coordinator, can be reached at
Liz@NAMSAP.org.
distributed within one month of the event.
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Medicare Secondary Payer Services
Provided by Burns White LLC
Workers Compensation Medicare Set-Asides

Liability Medicare Set-Asides
Medical Cost Projections
Medicare Conditional Payment Resolution
Medicare Advantage Resolution
Section 111 Medicare Mandatory Reporting
Speak to one of our Medicare attorneys at 412-995-3000.
www.burnswhitemsa.com
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AGENDA: Wednesday, September 14, 2016
Pre-Conference - MSP Crash Course
9:00 - 10:00 AM MSP 101:

Salon A/B The Statute, the Regs 12:00 - 1:00 PM Pre-Conference
and the Application Adjourns
An overview of the Medicare Secondary Payer (MSP)
laws, rules and how they impact your day-to-day
practice.
Our event has gone mobile! We will again provide
Dan Anders, a Mobile Meeting Guide. This mobile app will
JD, MSCC
ExamWorks Clinical Solutions provide members with a reliable, intuitive, and
functional solution. At no cost, this mobile app
Leslie Schumacher, provides attendees with all of the data an attendee
RN, CRRN, CCM, LNCC, CLCP, CNLCP, MSCC, CMSP could ever need!
PlanPoint, LLC
10:00 - 11:00 AM Anatomy of the WCMSA

Salon A/B Reference Guide
Dissecting the most frequently used parts from the

body of this authority.
Jake Reason
EK Health Services
Kathleen Wyeth,
JD, MSCC, CMSP
Michigan Bar
11:00 - 12:00 PM WWCMSD:

Salon A/B What Would CMS Do?
Metrics on CMS outcomes and helpful insights on pos-
sible trending that may influence Medicare Set-Asides. Get the app on your mobile device now, for free!
Barbara Fairchild, Download the NAMSAP App.
RN,CLCP, MSCC
NuQuest
Erin ONeill,
MPA, PA-C, JD Start using schedules, maps, to-do lists, and
MEDVAL, LLC
much more!
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1:00 - 1:15 PM Conference Welcome & 3:00 - 4:00 PM Divided We Stand

Salon A/B/C NAMSAP President's Salon A/B/C Medicare Advantage
Message Organization Case Law
A jurisdictional round-up of preeminent cases
Gary Patureau,
CWCP, CMSP across the nation and the varying holdings affecting
Louisiana Association of Self-Insured Employers reimbursement rights of private entities.
Ciara Koba,
Esq.
Michelle Allan, Burns White, LLC
Esq.
Burns White, LLC
Heather Sanderson,
Esq., MSCC, CHPE, CLMP, CMSP
Franco Signor, LLC
1:15 - 2:30 PM @#Allocating.com - Hon. Lee Yeakel

Judge, US District Court
Salon A/B/C The Online World of Western District, Texas
Allocating
An orientation of MSP social media, online resources,
and software.
4:00 - 5:00 PM Please Use Discretion:
Salon A/B/C Civil Monetary Penalties
Bob Wilson
Workers Compensation.com, LLC
An in-depth analysis of what might constitute a
punishable offence, a minor infraction or safe harbor
Mark Walls from Section 111 Medicare Mandatory Reporting
Safety National penalties.
Monika Boswein,
AIS, AIC, AINS, CMSP
Acuity
2:30 - 3:00 PM Break with Katie Fox,

MSCC, CMSP
Salon E/F Exhibitors Franco Signor, LLC
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5:00 - 6:30 PM Welcome Reception
Salon E/F
Riverwalk Scavenger Hunt

6:30 PM
Teams will meet in Salons E & F at the hotel before getting

into teams of eight (8). The hunt will have them stop off at
Join us at least four (4) locations on the Riverwalk before meeting at
Barriba Cantina presentation of awards and a cash bar. The
for karaoke after he Scavenger Hunt and hunt should take no more than 45 minutes to finish.
presentation of awards.
Howl at the Moon Everyone is welcome
111 W. Crockett Street, #201
San Antonio, TX 78205
to join us for fun and
comradery!
Barriba Cantina
111 W. Crockett Street, #214
San Antonio, TX 78205
2 0 1 7 A A N L C P A N N U A L E D U C AT I O N C O N F E R E N C E
KEY NOTE
SPEAKER
J.R. Martinez
Get your burning questions

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Gain unpresidented expert
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This highly anticipated education of S.E.A.K., sharpen your health
conference is sure to take your education knowledge with expert
diagnostician Donese Worden and
practice to a new level.
much more!
W W W. A A N L C P C O N F E R E N C E . C O M
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AGENDA: Thursday, September 15, 2016
7:00 - 8:00 AM Breakfast with Break with

10:00 - 11:00 AM
Salon E/F Exhibitors Salon E/F Exhibitors
The Current State of

8:00 - 9:00 AM Conditional Payment 10:30 - 11:30 AM Adventures in
Salon A/B/C Recovery Salon A/B/C Allocating
A detailed overview of the current state of conditional Exploring alternative pricing methodologies as well
payment recovery with a breakdown of functions of the as strategies to think outside the box on a case-by-
contractors, the process of recovery and the mechanics case basis.
of processing and finalizing claims from both theoretical
and practical perspectives. Beth Hostetler,
RN, BSN, CCM, MSCC
Michele Carey, Safeway
Esq.
Ruegsegger, Simons, Smith & Stern, LLC
Christine Melancon,
RN, CCM, MSCC, CMSP, CNLCP
Shawn Deane, EZ-MSA Services
JD, MEd, MSCC, CMSP
ISO Claims Partners
11:30 - 12:30 PM Networking Luncheon
William A. Delaney, Salon D
JD, MSCC
Nyhan, Bambrick, Kinzie & Lowry PC
CMS Trends on
12:30 - 1:30 PM
Liability Medicare Set-
Primary Payer Salon A/B/C
9:00 - 10:00 AM Aside Arrangements
Salon A/B/C Appeals An overview on how CMS has handled LMSAs
historically and to date, both regional review and non-
How primary payers can navigate recent rulemaking to review. This session will include discussion on what
pursue conditional payment appeals, and to which cases the current trends are, what issues exist and how they
this process is best applied. can be addressed.
Deborah Robinson Stewart, David R. Cherry,

JD Esq.
Genex Services, LLC Cherry Injury Law
Melissa Woitalewicz Roy A. Franco,

Esq.
Crete Carrier Corporation Franco Signor, LLC
Kim Young, Thomas F. Spratt,

JD CMSP
Burns White, LLC NuQuest
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AGENDA: Thursday, September 15, 2016
Submission vs.
1:30 - 2:30 PM 3:00 - 4:00 PM Settlement Language
Salon A/B/C Non-submission Salon A/B/C - Covering all Bases
(Opt-out)
A knock-out panel of industry heavyweights weigh-in Crafting ironclad settlement language to ensure inter-
on this controversial subject. The audience will reveal
ests are considered and protected under the MSP.
the victor by decision.
John V. Cattie, Jr, Joy Brewer,

JD, MBA JD
Garretson Resolution Group Brewer Defense Group
Jennifer Jordan, James R. Raines,

JD, MSCC JD
Breazeale, Sachse & Wilson, LLP
MEDVAL, LLC
Melinda R. Petit, Vincent J. Quatrini, Jr.,

CPCU JD
Chesapeake Employers Insurance Company Quatrini Rafferty, PC
Robert Sagrillo,
JD, LLM
NuQuest 4:00 - 5:00 PM State Law Consequences
Salon A/B/C and Outcomes
Mark Sidney
Midwest Employers Casualty Co.
A look at how Medicare regards state-specific laws,
including Californias Independent Medical Review
Rita Wilson (IMR).
Tower MSA Partners, LLC
Jeanmarie Calcagno,
Mark Walls Esq.
Safety National Bryce Downey & Lenkov, LLC
Rodney McColloch,
JD
Moore, Ingram, Johnson & Steele
2:30 - 3:00 PM Break with

Salon E/F Exhibitors
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AGENDA: Friday, September 16, 2016
7:15- 8:00 AM Breakfast with Whats Affecting

10:45 - 12:00 PM
Salon E/F Exhibitors Salon A/B/C
Stakeholders?
A discussion addressing MSP concerns and
potential future advocacy efforts.
WCMSA Re-Review
8:00 - 9:00 AM Process John V. Cattie, Jr,
Salon A/B/C JD, MBA
Garretson Resolution Group
Grounds for appealing unfavorable decisions and tips to
succeed in making your case. Doug Holmes,
JD
Carmen Folluo, UWC-Strategic Services on Unemployment
and Workers Compensation
RN, BSN, CCM, MSCC
CorVel Corporation Greg McKenna,
JD, MS
Shannon Metcalf, Gallagher Bassett Services, Inc.
JD, MSCC
Hedrick Gardner Kincheloe & Garofalo
Gary Patureau,
CWCP, CMSP
Kimberly A. Wiswell, Louisiana Association of Self-Insured
CMSP Employers
MEDVAL, LLC
An Rx for Prescription
9:30- 10:45 AM
Salon A/B/C
Drug Costs: Mitigating
Costs While Providing
Quality Care
Mitigating costs while providing quality care. Dont fo
rge
turn-in t to
Amy Bilton CE self your
JD, MSCC, CMSP assessm
ents
Nyhan, Bambrick, Kinzie & Lowry
NAMSA at the
P Regis
Amy Lee tration
Texas Department of Insurance
Desk .
Division of Workers Compensation
Mark Pew
PRIUM
Pamela Schweitzer,
PharmD, BCACP
Rear Admiral (RADM), Assistant Surgeon General
& Chief Pharmacist Officer
United States Public Health Service (PHS)
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Thank You to Our
12th Annual Meeting and
Educational Conference
Sponsors
The American Association of Nurse Life Care Planners, AANLCP

is the premier professional member organization of nurses and
non-nurses working in the field of life care planning. AANLCP
promotes education, collegiality, collaboration, research, and
standards as they relate to the practice of Nurse Life Care Planning.
www.aanlcp.org
Our clients arent just clientstheyre our partners in busi-

ness. Whether new to Burns White or a long-standing cli-
ent, we work diligently to understand your needs and build
a solid relationship based on sound legal strategies. This
makes our commitment to representing excellence very im-
portant to us. It has enabled us to grow from our original
five partners to more than 130 innovative lawyers supported
by a staff of professionals, including paralegals, information technology specialists and administrators. Together,
they form teams organized around practice groups serving specific industry areas, giving you unsurpassed ser-
vice, efficiency and access to a team that excels at putting cutting-edge technology and communications to work.
www.burnswhite.com
EPS Settlements Group is the nations preeminent structured settlements

company, employing 151 professionals who do business in a total of 54 offices
throughout the nation. Our consultants have an average of 15 years of structured
settlement design and implementation experience and each has developed a di-
verse body of knowledge base that enables them to address virtually any settle-
ment situation. The roots of EPS Settlements Group date back to 1973 when
the firm structured its first settlement. Since that time, EPS has partnered with
its clients to settle over 100,000 claims involving structured settlement funding
of over $20 Billion. www.epssg.com
Franco Signor, LLC is passionate about the Liability and

Workers Compensation industry groups we serve. We are the
nations recognized leader in Medicare Secondary Payer Com-
pliance and the largest provider of Medicare Reporting Ser-
vices in the United States. Additionally, we offer outstanding
Medicare Set-Aside Services, Conditional Payment Resolution Services and Mandatory Insurance Reporting
Services. Franco Signor is dedicated to leading the evolution of the marketplace with our innovation and over-
sight. The quality of our services and the satisfaction of our clients is our first priority. We focus on the unique and
individual risk components present in each referral in order to deliver a complete compliance solution. The result
for our clients is simple, superior claim and settlement outcomes. www.francosignor.com
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IARP is the premier global association for professionals
involved in private rehabilitation. Leaders in case and
disability management, forensics, vocational expertise,
and life care planning are members of this community
known for diversity, mentoring, entrepreneurial approach and intellectual power. Learn how IARP can help you
grow and prosper as a rehabilitation professional. www.rehabpro.org
The International Commission of Health Care

Certification Agency offers multiple certifications
representing the primary health care delivery systems
offered by allied health care providers in various
health care provider settings and physicians of
varying specialties. The ICHCC evolved in 1994
offering certification in disability evaluations and
impairment ratings, adding life care planning as a specialty area in 1996. Medicare Set-aside trust/allocation
certification was established in 2006 and geriatric care management, forensic nursing, and patient safety
certifications are in the developmental phase with support from the University of Florida. www.ichcc.org
KP Underwriting, LLC provides rated ages with a quick turn-around

time at a fair price. Our clients are Annuity and Life Insurance companies,
Workers Compensation companies, Medicare Set-Aside Markets and Life
Care Planners. We provide professional medical record review and un-
derwriting for Rated Ages and Life Expectancies. Our mission is to pro-
vide rated ages promptly and accurately through a commitment to our cli-
ents so you can focus your time and energy on other areas of your business.
www.kpunderwriting.com
Louisiana Association of Self-Insured Employers (LASIE) was formed

in 1971 and is a non-profit organization exclusively devoted to issues
impacting workers compensation from an employers perspective.
Our member companies include a broad cross-section of large and
small Louisiana businesses, most of which self-issue their workers
compensation programs. Our mission is to protect the right to self-
insure and advocate for a balanced, efficient and effective workers
compensation system while serving as the industry resource for all providers or workers compensation benefits
and services. www.lasie.org
For over 13 years, MEDVAL has been defining a higher

standard in the way Medicare Set-Aside Arrangements (MSAs)
are prepared and integrated into workers compensation and
personal injury insurance settlements. The MEDVAL approach
proprietary, completely integrated, and focused on in-depth
medical review and attorney oversight offers cost-effective settlement solutions for even the most complex cases.
In short, we offer full MSP compliance for the amount appropriate to provide the best protection for all parties
involved. We continue to challenge the competitive landscape with our breadth of services, front-line claims
negotiation experience, and expertise at implementing comprehensive settlement solutions. www.medval.com
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MWC is a leading national provider of services that help
insurers, administrators, and employers with requirements
related to Medicare and Worker Compensation. With
over 19 years of workers compensation and disability
experience, MWC provides a full service MSA company
that offers Medicare Set-Asides, CMS submission,
Lien Identifications, MSP Compliance, Medical Cost
Projections, Life Care Plans and Complex Catastrophic case review. www.mwcassociates.com
ODG/Work Loss Data Institute (WLDI) is the evidence-based

guideline company and publisher of the ODG product line. ODG
provides evidence-based decision support for managing medical
treatment, disability duration, and utilization review in workers
compensation, general health, and disability cases. ODG is available
in Web-based and Systems Integration format, and is used in all 50
states and worldwide. www.worklossdata.com
Tower MSA Partners provides Medicare Secondary Payer compli-

ance and Medicare Set-Aside services. We work with clients in all
50 states to achieve full MSP compliance within the context of each
states jurisdictional statutes and guidelines. Our proprietary MSP
Automation Suite drives best practices for MSP compliance and
MSA preparation and provides end-to-end visibility into every claim
activity from Section 111 Query and Reporting through CMS accep-
tance of the MSA. www.msatower.com
Social Media
www.Facebook.com/NAMSAP @NAMSAPorg
Event Hashtag:
#NAMSAP2016
www.LinkedIn.com/groups/2368942
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Thank You to Our Professional Partners for their Support
Gold Partners
Silver Partners
Bronze Partners
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NAMSAP Needs YOU!
Nominations for four (4) open positions on the Board of Directors will be accepted throughout
the entire month of September 2016. Each position will be elected to a three (3) year term. The
election will take place by electronic ballot -- with all individual members and partner profes-
sional representatives eligible to vote -- from Monday, October 10 through Friday, October 14.
Eligible voters may select up to four (4) candidates on their ballot. Successful candidates will
begin their terms in January 2017.
For more information, please visit www.NAMSAP.org or e-mail Info@NAMSAP.org.
The Board of Directors would like to thank Douglas L. Shaw, CPA, CMSP and Leslie Schumacher,
RN, CRRN, CCM, LNCC, CLCP, CNLCP, MSCC, CMSP for their service over two terms of service. Both
Mr. Shaw and Mrs. Schumacher served in a variety of governance positions within the organiza-
tion culminating in their elections as president of NAMSAP.
Leslie Schumacher Douglas L. Shaw
MWC is a leading national provider of services that help insurers, administrators, and
employers with requirements related to Medicare and Worker Compensation. With over 19
years of workers compensation and disability experience, MWC provides a full service MSA
company that offers Medicare Set-Asides, CMS submission, Lien Identifications, MSP
Compliance, Medical Cost Projections, Life Care Plans and Complex Catastrophic case review.
Website: www.mwcassociates.com
MWC, MWilliams Consulting, LLC, P.O. Box 3071, McDonough, Georgia 30253, Phone: 770-898-4148,
Fax 770-898-7385, Email: info@mwcassociates.com
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The Course of a Lifetime
Starts with IARP
IARP is the premier global association for

professionals involved in private rehabilitation.
Leaders in case and disability management,
forensics, vocational expertise, and life care
planning are members of this community known
for diversity, mentoring, entrepreneurial approach
and intellectual power.
Learn how IARP can help you grow and prosper as

a rehabilitation professional at www.rehabpro.org.
22
Certifying health care professionals for over 20 years
The Medicare Set-aside Consultant Certified (MSCC) credential is designed to identify those professionals who work within the
workers compensation benefit system as either a health care professional, legal representative, or as an insurance claims adjuster,
who have achieved specific pre-approved training in Medicare set-aside trust arrangements, and have demonstrated a breadth of
knowledge regarding the development and application of the Medicare set-aside trust arrangement process.
Additionally, this credential is designed to express to the consumer that the person holding the MSCC credential has agreed to
come under the scrutiny of a certifying review board (ICHCC), to be peer reviewed, and to adhere to a set of standards governing
ethics and professional behaviors.
For more information
visit the ICHCC website at www.ichcc.org
or call 804-378-7273.
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Speaker Handouts
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MSP 101 The Statute, the Regs
and the Application
Presented by:
Leslie Schumacher, RN, CRRN, CCM, LNCC,
Dan Anders, Esq., MSCC CLCP, CNLCP, MSCC, CMSP
Senior-Vice President, MSP Compliance President
ExamWorks Clinical Solutions PlanPoint MSA
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Topics
Medicare Coverage.
Parts A - D.
Fundamentals of the Medicare Secondary Payer Act.
Conditional Payments
MSAs Workers Compensation, Liability
Mandatory Reporting
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Medicare Overview
Medicare is a federal health insurance program which is

managed by the Centers for Medicare & Medicaid Services
(CMS).
CMS is one of the agencies under the Department of Health &
Human Services.
People covered by Medicare are called beneficiaries.
Funding for Medicare comes partially from payroll taxes, known
as FICA (Federal Insurance Contributions Act).
FICA comprises Social Security and Medicare tax.
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CMS Home Office-Baltimore
Overall policy-making responsibility is centralized in CMS'

Baltimore headquarters
Coordination and oversight of Medicare and state
Medicaid programs
Provide operational instructions and official interpretations of
policy to regional offices (ROs) and associated state agencies.
Choose and provide direction to CMS contractors
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Medicare Overview
CMS Statistics
As of July 2016 56,871,429 Americans are enrolled in Medicare. 18% of the
US population have Medicare coverage
16% of the Medicare population is under 65 and permanently disabled.
Next 20 year predictions
People on Medicare is projected to rise from 57M to 87M
Ratio of workers per beneficiary will decline from 3.1 to 2.3
Kaiser Foundation statistics
Medicare is 15% of the Federal budget and 20% of the total national
healthcare expenditures
See slides.
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31
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Medicare Basics
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Who Qualifies for Medicare?
Age 65 or older,
Disabled under SSDI and after 24

month waiting period; or,
End-Stage Renal Disease/ALS
10
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Medicare Enrollment
Automatic for those receiving
Social Security benefits
Railroad Retirement Board benefits
Initial Enrollment Period package
Mailed 3 months before
Age 65
25th month of
disability benefits
Others must enroll themselves
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Original Medicare
Health care option run by the Federal
government
Provides your Part A and/or Part B coverage
See any doctor or hospital that accepts Medicare
You pay
Part B premium (Part A is usually premium free)
Deductibles, coinsurance or copayments
Get Medicare Summary Notice (MSN)
Can join a Part D plan to add drug coverage
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Medicare Part A-Covered Services
Inpatient Hospital Semi-private room, meals, general nursing, and other
hospital services and supplies. Includes care in critical
Stays access hospitals and inpatient rehabilitation facilities.
Inpatient mental health care in psychiatric hospital
(lifetime 190-day limit). Generally covers all drugs
provided during an inpatient stay received as part of
your treatment.
Skilled Nursing Semi-private room, meals, skilled nursing and
rehabilitation services, and other services and supplies.
Facility (SNF) Care
Home Health Care Part-time or intermittent skilled nursing care, and/or
physical therapy, speech-language pathology services,
Services and/or services for people with a continuing need for
occupational therapy, some home health aide services,
medical social services, and medical supplies.
Hospice Care For terminally ill and includes drugs for pain relief and
symptom management, medical care, and support
services from a Medicare-approved hospice.
Blood In most cases, if you need blood as an inpatient, you
wont have to pay for it or replace it.
37
Paying for Part A
Most people receive Part A premium free

If you paid FICA taxes at least 10 years
If you paid FICA less than 10 years
Can pay a premium to get Part A
May have penalty
If not bought when first eligible
38
39
40
41
42
Medicare Parts A and B
Medical Benefits and Services Not Covered Under Part A or B:
Most prescription drugs and medicines taken at home;
Services performed by a relative or household member;
Services outside the U.S. (except for qualified Canadian and Mexican
facilities);
Routine physical exams, eye exams, glasses, hearing aids, and dental care;
Routine foot care and orthopedic shoes, except for diabetics;
Most chiropractic services;
Custodial care;
Cosmetic surgery (except after an accident);
Most immunizations;
Private nurses.
43
Paying for Part B Services
In Original Medicare you pay

Yearly deductible of $147 in 2014 (Higher deductible
income is higher than $85,000 Single or $170,000
Joint)
20% coinsurance for most services
Some programs may help pay these costs
44
Medicare Advantage Plans (Part C)
Health plan options approved by Medicare

Another way to get Medicare coverage
Still part of the Medicare program
Run by private companies
Also called Part C
Medicare pays amount for each members care
May have to use network doctors or hospitals
Types of plans available may vary
45
How MA plans work
Still in Medicare with all rights and protections

Still get Part A and Part B services
May include prescription drug coverage (Part D)
May include extra benefits
Like vision or dental
Benefits and cost-sharing may be different
46
Types of Medicare Advantage Plans
Medicare Advantage Plans include

Health Maintenance Organization (HMO) Plans
HMO Point-of-Service (HMOPOS) Plans
Preferred Provider Organization (PPO) Plans
Private Fee-for-Service (PFFS) Plans
Special Needs Plans (SNP)
Medicare Medical Savings Account (MSA) Plans
Not all types of plans are available in all areas
47
Medicare Advantage Plan Costs
Must still pay Part B premium

Some plans may pay all or part for you
Some people may be eligible for state assistance
You may also pay monthly premium to plan
You pay deductibles/coinsurance/copayments
Different from Original Medicare
Varies from plan to plan
Costs may be higher if out-of-network
48
Three in 10 Medicare beneficiaries are enrolled in
Medicare Advantage plans, most of whom are in
Distribution of Enrollment in Medicare Advantage Plans, by Plan Type, 2014
HMOs
Total Medicare Advantage Enrollment, 2014 = 15.7 Million

NOTE: PFFS is Private Fee-for-Service plans, PPOs are preferred provider organizations, and HMOs are Health Maintenance
Organizations. Other includes MSAs, cost plans, and demonstration plans. Includes enrollees in Special Needs Plans as well as
other Medicare Advantage plans.
SOURCE: MPR / KFF analysis of the Centers for Medicare and Medicaid Services (CMS) Medicare Advantage enrollment files, 2014.
49
Medicare Advantage enrollment has increased
rapidly and is projected to continue to rise
Medicare Advantage Enrollment (in millions), 2005-2024
Actual Enrollment Projected Enrollment
NOTE: Includes cost plans, MSAs, demonstrations, and Special Needs Plans, as well as other Medicare Advantage Plans.
SOURCE: KFF analysis of the Centers for Medicare and Medicaid Services (CMS) Medicare Advantage enrollment files, 2005-2014,
and Congressional Budget Office, Medicare Baseline, April 2014.
50
Prescription Drug Coverage (Part D)
Also called Medicare Part D
Prescription drug plans approved by Medicare
Run by private companies
Available to everyone with Medicare
Must be enrolled in a plan to get coverage
Two sources of coverage
Medicare Prescription Drug Plans (PDPs)
Medicare Advantage Plans with Rx coverage (MA-PDs)
And other Medicare health plans with Rx coverage
51
Prescription Drug Plan Costs
Costs vary by plan

In 2016, most people will pay
A monthly premium
A yearly deductible
Copayments or coinsurance
45% for covered brand-name drugs in coverage gap
58% for covered generic drugs in coverage gap
5% after spending $4,850 out-of-pocket
52
Part D Eligibility Requirements
To be eligible to join a Prescription Drug Plan

You must have Medicare Part A and/or Part B
To be eligible to join an MA Plan with drug coverage
You must have Part A and Part B
You must live in plans service area
You cant be incarcerated
You cant live outside the United States
You must be enrolled in a plan to get drug coverage
53
Part D-Covered Drugs
Prescription brand-name and generic drugs

Approved by Food and Drug Administration (FDA)
Used and sold in United States
Used for medically-accepted indications
Includes drugs, biological products, and insulin
Supplies associated with injection of insulin
Plans must cover range of drugs in each category
Coverage and rules vary by plan
54
Drugs Excluded by Law Under Part D
Drugs for anorexia, weight loss, or weight gain

Erectile dysfunction drugs when used for the treatment of sexual or
erectile dysfunction
Fertility drugs
Drugs for cosmetic or lifestyle purposes
Drugs for symptomatic relief of coughs and colds
Prescription vitamin and mineral products
Non-prescription drugs
55
Medicare Secondary Payer
56
Background
In 1980, the Medicare Secondary Payer Act (MSP) statute
identified Medicare as a secondary payer, when a primary payer
existed.
If Medicare elects to make payments to ensure that necessary
treatment is received (Conditional Payments), it is entitled to
reimbursement from any party deemed originally responsible
or any party in receipt of funds from an insurance settlement.
The original MSP amendment failed to provide the CMS with
access to the information needed to initiate such
reimbursement claims.
Over the years, Medicare continued to pay for millions of
dollars worth of unreimbursed conditional payments.
57
Enforcement of MSP Act
In 2001 a Government Accountability Office (GAO) study

identified millions of dollars in erroneous annual government
spending in the Social Security Disability and Medicare
programs.
Enforcement of the secondary payer act finally began after that
time with Workers Compensation claims.
42 CFR 411 is the Medicare Secondary Payer Statute (MSP) -
Essence of the Legislative Intent: Medicare will always be a
Secondary Payer if a primary payer exists.
58
Medicare Secondary Payer Act
42 U.S.C. 1395y(b) [section 1862(b) of the Social Security Act], and 42
C.F.R. Part 411.
Medicare has been secondary to workers compensation benefits from
the inception of the Medicare program in 1965.
The liability insurance (including self-insurance) and no-fault insurance
MSP provisions were effective December 5, 1980.
Medicare is precluded from paying for a beneficiarys medical
expenses when payment has been made or reasonably can be
expected to be made under a workers compensation plan, an
automobile or liability policy or plan (including a self-insurance plan),
or under no-fault insurance.
Primary Payers (CFR 411.20): Workers Compensation, Liability, Auto
No Fault, USL&H, and Jones Act.
59
Legal Background
Pursuant to 42 U.S.C. 1395y(b)(2) and 1862(b)(2)(A)(ii), Medicare is
precluded from paying for a beneficiary's medical expenses when payment
has been made or reasonably can be expected to be made under a workers
compensation plan, an automobile or liability policy or plan (including a self-
insurance plan), or under no-fault insurance.
Defines primary payers to include not just workers compensation carriers but
also entities obligated to provide payment for health care costs by virtue of
third party claims against the insured or self insured entities.
60
Legal Background
Pursuant to 42 U.S.C 1395y(b)(2)(B)(ii), the Government may

recover under this clause from any entity that has received a
payment from a primary plan or from proceeds of a primary
plans payment to any entity.
42 C.F.R. 411.24(g)-CMS has a right of action to recover its
payments from any entity including a beneficiary provider,
supplier, physician, attorney, state agency or private insurer that
has received primary payment.
61
Fundamental Concepts
Medicare has a lien against any proceeds of a judgment,

settlement or award to the extent that Medicare has paid for
any health care to the plaintiff.
To the extent that Medicare has made conditional payments
Medicare may recover them pursuant to 42 U.S.C. 411.27.
62
CMS MSP Enforcement Structure?
10 CMS
Regional
Offices
Benefits
Workers
Coordination
Commercial Compensation
& Recovery
Repayment Review
Center
Center Contractor
(BCRC)
CRC) (WCRC)
39
63
CMS MSP Enforcement Mechanisms
Section 111 Mandatory Insurer Reporting

Denial of payment for injury-related medical care
Recovery of Medicare conditional payments for injury-related
medical care.
Medicare Set-Asides
64
Medicare Mandatory Insurer
Reporting
65
Section 111 Mandatory Insurer Reporting
Twenty-seven years after the 1980 Medicare Secondary Payer

Act (MSP) statute, the Medicare, Medicaid & SCHIP Extension
Act of 2007 (MMSEA) was enacted. (12/29/2007)
The law provided a funding vehicle for the State Childrens
Health Insurance Program by establishing reporting
requirements on certain claims and a civil money penalty for
non-compliance.
Section 111 MMSEA requirements are applicable to Group
Health Plans and Workers Compensation, Liability, and No-
Fault Auto plans (collectively referred to as Non-Group Health
Plans or NGHP).
66
What is MMSEA all about?
MMSEA/ MIR serves 4 purposes:

1.Generate revenue through an estimated $1.1B in fines to fund
State Children's Health Insurance Programs.
2.Discover billions in unresolved conditional payments and seek
immediate recovery.
3.Cease making ongoing conditional payments in the future.
4.Ensure that all settlements adequately consider Medicares
interests as required by law.
67
Mandatory Insurance Reporting
Affects Liability (including self insurance), No-Fault, and WC
claims.
Requires reporting of data to CMS quarterly on all open claims
involving Medicare beneficiaries and a one-time reporting post-
Settlement/Judgment/Award (S/J/A) on cases involving
Medicare beneficiaries.
Mandates that primary payers check Medicare beneficiary
status on ALL claims and report quarterly through a secure web-
site.
Reporting applicable in Settlement/Judgment/Award, regardless
of whether or not future medicals are closed.
Civil money penalty for failure to report: Up to $1000 per day
per claim.
68
Reporting Basics
Query for Medicare eligibility

Evaluate Ongoing Responsibility for Medicals.
Report ORM, if applicable.
If/When settlement occurs, report the Date and Amount to
CMS.
If/When ORM terminates, report the Date to CMS.
69
MIR Process Flow - Basic
70
Reporting Criteria
For claims involving Medicare eligible injured parties:

Acceptance of Ongoing Responsibility for Medical (ORM):
Generally applies to Workers Compensation and No-Fault claims.
Occurrence of a Total Payment Obligation to the Claimant (TPOC):
Applies to Liability, Workers Compensation and No-Fault claims.
Settlement, Judgment, Award releasing medicals must be reported.
WC minimum TPOC threshold >$300
Liability minimum TPOC threshold >$1,000
71
Medicare Conditional Payment
Recovery
72
Medicare may make conditional primary payments and seek

reimbursement from the primary payer both pre and post
Settlement, Judgment, or Award (S/J/A) or at any time after
payment/benefits.
Demand for conditional payments comes from CMS Lead
Contractor (BCRC) as against beneficiaries.
Demand for Applicable Plans comes from the Commercial
Repayment Center (CRC) beginning October 5, 2015.
73
Conditional Payment Players
Claimant/Beneficiary
Primary Payer or Plan
Centers for Medicare & Medicaid Services (CMS)
Benefits Coordination and Recovery Center(BCRC)
Commercial Repayment Center (CRC) Open ORM
case against Primary Payers
U.S. Treasury Department
74
Primary Payers or Plans
Workers Compensation Insurance or Plan

No-Fault Insurance
Self-Insured
Liability Insurance
Underinsured Motorist Insurance
Uninsured Motorist Insurance
75
Primary Payers Responsibility Under MSP
Act
A primary payer's responsibility for reimbursement of

conditional payment may be demonstrated by:
A judgment
A payment conditioned upon the recipient's compromise,
waiver, or release (whether or not there is a determination or
admission of liability)
By other means, including but not limited to a settlement,
award, or contractual obligation
76
Amount of Recovery
If it is not necessary for CMS to take legal action to

recover, CMS recovers the lesser of the following:
The amount of the Medicare primary payment.
The full amount of the primary payment.
If it is necessary for CMS to take legal action to recover
from the primary payer, CMS may recover twice the
amount previously specified.
77
Medicare Recovery Rights
CMS has a direct right of action to recover payments

from any entity, including:
beneficiary
provider
supplier
physician
attorney
State agency
private insurer
78
Making Certain Medicare is Reimbursed
If Medicare is not reimbursed, the primary payer must

reimburse Medicare even though it has already
reimbursed the beneficiary or other party.
This applies to liability insurance, employer group health
plans, workers' compensation insurance or plan, and no-
fault insurance.
79
Medicare Subrogation Rights
With respect to services for which Medicare paid, CMS is

subrogated to any individual, provider, supplier,
physician, private insurer, State agency, attorney, or any
other entity entitled to payment by a primary payer.
CMS may join or intervene in any action related to the
events that gave rise to the need for services for which
Medicare paid.
80
New CP Process Changes
Effective October 5, 2015 the Commercial Repayment Center

(CRC) handles recovery actions against Applicable Plans where it
is the Identified Debtor and where Ongoing Responsibility for
Medical (ORM) exists. Most WC cases and some Liability cases
affected.
Conditional Payment Notice and Statement of Reimbursement - 30
days to dispute
Final Demand interest accrues
The BCRC will continue to handle recovery actions against a
beneficiary
81
Medicare Advantage Plans
Medicare Advantage Plans:

Medicare only asserts conditional payment claims for payments
made under Parts A and B. If a Medicare beneficiary is enrolled in a
Part C Medicare Advantage plan, each plan may have a separate
lien.
If no Medicare conditional payments are identified, parties should
inquire as to whether claimant is enrolled in a Medicare Advantage
Plan.
Recent cases have supported Medicare Advantage plan rights to
recovery under the MSP Act.
82
Protecting Medicares Future Interests:
Medicare Set-Asides
83
What is a Medicare Set-Aside?
A Medicare Set-Aside is an account set up to pay future

Medicare covered expenses for an injured party that would
have been paid by Medicare had the injury NOT been the
responsibility of the Primary Payer.
84
CMS Policy Memo 2001
In his July 2001 Memorandum, Parashar B. Patel, Deputy

Director at the Center for Medicare and Medicaid Services,
indicated that although 42 CFR 411.46 requires that all WC
settlements must adequately consider Medicares interests, 42
CFR 411.46 does not mandate what particular type of
administrative mechanism should be used to set aside monies
for Medicare, but does recommend several items to
appropriately consider Medicares interests when settling future
medical care in a workers compensation case.
85
CMS Policy Memo 2001
Compromise Settlements vs. Commutation Settlements

When Medicare Will Not Pay
Reasonable Expectation
Conditional Payments and Medicares Interests
Full Charges vs. WC Fee Schedule
Documentation Needed For Approval
Administration of the Set Aside
86
Subsequent Memos and Reference Guide
Subsequent to 2001 Memo CMS released a series of policy

memos through 2012.
3/29/2013 CMS Releases WCMSA Reference Guide which
encompasses most of the prior memo guidance and provides a
much more expansive explanation of the CMS MSA review
process.
Most recent reference guide is Version 2.5 published on
4/4/2016
87
MSA Review Thresholds
Thresholds: CMS will review and approve MSAs that meet

the following thresholds:
The claimant is Medicare eligible at the time of settlement and
the total settlement payout value, is greater than $25,000.
The claimant is reasonably expected to become Medicare
eligible within 30 months of the settlement date and the total
settlement payout value is greater than $250,000.
88
Definition of Terms
Reasonable expectation:
Receiving Social Security Disability (SSDI) for less than 24
months, applied for SSDI or denied SSDI, but appealing or re-
filing.
Is 62 years and 6 months old or older.
Total settlement value: Includes not only indemnity, but
attorney fees, all future medical expenses and repayment
of any Medicare conditional payments.
Approval: Having an approved MSA assures the claimant
of future medical covered by Medicare and protects the
primary plan against Medicare claims.
89
Thresholds are not a safe harbor
Medicare has advised that these thresholds are workload

review thresholds, not a safe harbor.
Options to demonstrate consideration of Medicares
interests in future medical without CMS approval:
Obtain an MSA, even if unapproved.
Obtain report from treating physician stating no need for
future medical treatment and/or prescription medication.
Obtain court order documenting no need for injury related
future medical care.
Make the entire settlement available for future medical.
90
Zero MSAs
Legal Zero: Claim denied in entirety and no medical/indemnity

payments or settlements
Zero MSA (medical basis): Treating physician opines in writing

that future care is not required for WC injury
Zero MSA (based on a court order): Judicial decision based on

merits of the case, outlines insurer has no responsibility for
future medical care on accepted body part
91
WCMSA Self-Administration
April 10, 2014 - A new WCMSA Self-Administration page has
been added to the Workers Compensation Medicare Set-Aside
Arrangement section of CMS.gov. The new page contains
information for individuals who choose to self-administer their
WCMSA accounts. Materials available on the new page include:
New Self-Administration Toolkit for WCMSAs
Account Expenditure for Lump Sum Account (Attestation
Letter)
Account Expenditure for Structured Annuity (Attestation
Letter)
Transaction Record Sample
WCMSA Reference Guide
92
Liability LMSA
Guidance provided by Regional Offices with differing review

thresholds.
Some case addressing LMSAs
Typically reviewed in settlements exceeding $250,000.00 in
the aggregate
No formalized guidance yet
93
Conclusion
Key Takeaways
Questions & Answers
94
General Anatomy of the
WCMSA Reference Guide
Final resting place for the old CMS memos

Presented by
Kathleen Wyeth, Esq., Accident Fund &
Jake Reason, EK Health
95
DISCLAIMER:
All the material to be discussed is that of the presenter and is in no
manner to be considered the opinion of the NAMSAP Board or Alliance.
Additionally, in no manner should this presentation be considered legal
advice. This presentation is provided for educational purposes only..
2
96
Basic terms refresher
CMS Center for Medicare & Medicaid Services
WCMSA/MSA Workers Compensation
Medicare Set-Aside
Allocation report the MSA report
Primary payer Carrier/Insurance Company or
Employer
Claimant/Plaintiff injured worker/Medicare
beneficiary
3
97
** Additional Disclaimer **
This presentation is specifically discussing the WCMSA Reference Guide
and possible submission of MSAs prepared strictly for workers
compensation settlements. While parties in liability settlements arguably
owe Medicare the same legal duty to protect its interest as those in workers
compensation settlements, CMS has not established an analogous review
process for liability settlements. CMS will agree to review liability MSAs on
occasion if the WCMSA guidelines are followed, but it is rare and there is no
guarantee of this. CMS recently announced that it would be exploring
guidelines for LMSAs, but they have said this before and our position is, we
will believe it when we see it. Until then, wild west law applies to LMSAs.
The former statement is merely an observation, not a recommendation.
Further additional disclaimer ** LMSA is not a widely used acronym. Since
there is no documented review process for liability MSAs, CMS does not
refer to them by any name. In fact, if you Google LMSA, you will be referred
to the Latino Medical Student Association, which it not what we are referring
to here, although they could be a lovely group.
4
98
What to do with your WCMSA
Submit the MSA to CMS for review; or
Fund the MSA without submission
5
99
What does the law require
The legal obligation to protect Medicares interest in
a settlement could be inferred from 42 U.S.C.
1395y(b)(2)(B) and 42 CFR 411.46(b)(2)
No statutory, regulatory or administrative

requirement compels submission of any MSA to
CMS for review
Whether to submit or not is a risk analysis question

for the parties involved
6
100
What if I choose submission?
Does my MSA meet the CMS review threshold?
Do I have the proper information needed for

submission?
How do I submit the MSA to CMS for review?
What if I dont like the CMS response?
7
101
CMS Review Thresholds
Claimant is a Medicare beneficiary and the total
settlement is greater than $25,000.00; or
Claimant has a reasonable expectation of

Medicare enrollment within 30 months of
settlement and the total settlement is greater
than $250,000.00
8
102
Reasonable expectation of Medicare
enrollment within 30 months
Claimant has applied for SSD; or
Claimant has been denied SSD, but anticipates

appealing; or
Claimant is in the process of SSD appeal; or
Claimant is 62 years old; or
Claimant has End Stage Renal Disease
9
103
Calculating total settlement amount
Any of these that are part of your settlement:
Wages
Attorney fees
Future medical expenses (including MSA)
Repayment of conditional payments
Repayment of other medical liens
Any previously settled portion of the claim
10
104
Do past amounts paid on the claim
count in the settlement amount?
NO only if the past amounts are prior

settlement amounts. Regular indemnity
and medical payments do not count.
11
105
Information needed for submission
Cover Letter
Consent to Release signed by claimant
Rated Age/Life Expectancy information
Future Treatment Plan & medical synopsis
Settlement Agreement or Court Order
Last 2 years of medical & pharmacy records
Payment History
12
106
How do I submit a WCMSA
Via WCMSA electronic portal
Paper copy submitted via the mail
CD submitted via the mail
13
107
Could I submit the MSA by Email?
NO
14
108
How about visiting CMS to submit
in person?
Definitely NO
15
109
What if my MSA is below the submission
threshold but I submit it anyway?
You will have wasted a lot of time and effort

because CMS will not review your MSA (even if
you really, really want them to) and, if you are a
repeat offender, you may be locked out of the
electronic submission portal.
16
110
What is a Development Request?
A letter from CMS telling you that you

didnt send them exactly the information
they wanted in the format that they wanted
and they are telling you that they will not
proceed to review your MSA until you
provide what they are asking for.
17
111
Most frequent reasons for
Development Requests
Insufficient or out-of-date medical records
Insufficient payment histories
Failure to address settlement agreements
Documents referred to in the file were not
provided to CMS
Submission refers to state statute or
regulations without providing sufficient
documentation of state law
18
112
What if I dont like CMS response?
There was no legal obligation to submit
and there is no legal requirement to fund
the amount approved
There is no right of appeal
Narrow opportunity for re-review
Obvious mistake (math)
You have additional evidence not previously
considered, but dated prior to submission
19
113
What if I dont fund the
CMS-approved MSA amount?
Medicare will not recognize the settlement

and will deny payment for medical benefits
up to the amount of the entire settlement.
Beneficiary would have to appeal benefit

denial through Medicares administrative
appeal process
20
114
Miscellaneous trickiness
Zero dollar MSAs
Multiple defendants
No medical treatment for some time
Some accepted and some denied
conditions
Subrogation interest with liability
settlement
21
115
Thank you!
116
WWCMSD
What Would CMS Do?
117
Learning Objectives
Identify situations that may cause issues with CMS review of

WCMSAs.
Predict the Workers Compensation Review Contractors
(WCRC) likely response based on recently observed trends.
Formulate effective strategies for allocating in these situations
and for addressing CMS development letters.
Provide the best documentation possible to assist the WCRC
with reviewing allocations with these issues to prevent time-
consuming development requests and avoid troublesome,
costly counters.
Understand CMS approach to Disputed Conditions and Zero
Allocations.
118
Basic Future Medical Treatment Issues
Physician Visits
Inclusion of more frequent pain management treatment.
Inclusion of physician follow up at a higher cost utilizing a prolonged

visit CPT code.
119
Physical Therapy
Inclusion of physical therapy for multiple body parts or body
parts no longer under treatment.
Inclusion of post-operative physical therapy in addition to

routine physical therapy.
Inclusion of extensive physical therapy.
120
Aqua Therapy
Inclusion of aqua therapy.
121
Psychiatric Follow up and Psychotherapy

Inclusion of psychiatric follow up and psychotherapy in extensive
quantities.
122
Diagnostic Testing
Inclusion of x-rays/MRIs for body parts initially injured, but no longer
being treated.
Inclusion of MRIs for conditions where studies are not indicated.

Following total joint replacements.
For a diagnosis of carpal tunnel syndrome.
123
Urine drug screens

Testing included at varying intervals, not necessarily as being performed.
- Testing included at a very high cost.
124
Issues with Medicare Part B Treatment
Chiropractic Treatment
Inclusion of chiropractic manipulation where no diagnosis of
subluxation is noted.
Inclusion of osteopathic manipulation.
125
Injections
Inclusion of injection cost and separate cost for medication, priced at
ASP + 6%.
Example of injections performed in physician office versus outpatient

facility.
126
Injections
Quantity of injections typically included where treatment is
discussed by not currently being provided.
Quantity of injections typically included where treatment is

currently being provided.
127
Intrathecal Pumps
Variance in cost of the initial/revision intrathecal pump by State.
128
Intrathecal Pumps
Allocation for the pump medication.
129
BKA/AKA/UE Prosthetics
Cost of the prosthetic Use of invoices versus fee schedule amounts.
130
Frequency of prosthetic replacement
131
Maintenance and supply cost 10% of cost of the prosthetic,
included in the years a new prosthetic is not provided.
132
Medicare Part B (cont.)
Durable Medical Equipment

Manual wheelchairs
Cost of initial/replacement, frequency of replacement, maintenance cost.
Seat cushion cost and replacement frequency variance.
133

Electric wheelchairs
Cost of initial/replacement, frequency of replacement, maintenance cost.
Seat cushion, batteries, charger.
134
Braces
Custom vs. off-the-shelf braces.
Invoice vs. fee schedule costs.
135
Urinary Catheters
Assessment of type, quantity utilized.
Requests for invoices.
136
CPAP
Inclusion of device and supplies where CPAP had not been provided yet.
137
TENS Unit
Cost of device fee schedule amounts.
Cost of supplies, clectrodes, batteries.
138
Inclusion of H Wave Unit

Cost of device
Cost of supplies
139
Home Health Care
140
Medicare Part D Issues
Off-Label Drugs
Discussion of commonly excluded medications by CMS.
Depends upon diagnosis.
If prescribed for valid off label use, CMS may include.
Example- Lyrica label pain associated with spinal cord injury.
Off label- generalized anxiety disorder, restless leg syndrome.
141
Inclusion of Brand vs. Generics

The WCRC prices for generic drugs unless one of the following applies,
in which case the WCRC uses brand-name:
A brand-name drug is in the proposal and there is an indication that the

claimant is actually taking the brand-name drug.
A generic is in the proposal, but no generic exists.
A generic is in the proposal, but all the evidence indicates that the claimant
is taking the brand-name drug.
The claimant or claimants attorney insists on a brand-name drug in writing.
No drugs are indicated in the submitted proposal, but the condition requires
certain drugs, or the medical records indicate certain drugs. In this case, the
WCRC will default to pricing for brand-name medications.
142
Drug Weaning/Tapering
Drug weaning commonly occurs with pain medications, such as
opioids, especially when claimants work injuries improve. The
WCRC takes all evidence of drug weaning into account, although
in most circumstances the WCRC cannot assume that the
weaning process will be successful. Usually, the latest weaned
dosage is extrapolated for the life expectancy, but again, they
assess all records when making these types of determinations.
Where a treating physician believes tapering is possible and in
the best interests of the claimant, CMS will consider all evidence
in making a WCMSA determination, including medical evidence
of current actual tapering.
143
Dual Designation Drugs/Available in over-the-counter and Rx

formulations.
Dual-designation drugs are drugs that are scheduled or approved

both over-the-counter (OTC) and in a prescription version. The
WCRC will analyze evidence based on the medical records,
pharmacy records or both and if evidence that the prescription
version is being provided, CMS will include the medication in the
allocation.
144
Compound Drugs
For a Part D compound to be considered on-formulary, all
ingredients that independently meet the definition of a Part D drug
must be considered on-formulary. Bulk powders (i.e., Active
Pharmaceutical Ingredients for compounding) do not satisfy the
definition of a Part D drug and are not covered by Part D. For any
non-Part D ingredient of the Part D compound, the Part D sponsors
contract with the pharmacy must prohibit balance billing the
beneficiary for the cost of any such ingredients.
https://www.cms.gov/Medicare/Prescription-Drug-
Coverage/PrescriptionDrugCovContra/Downloads/Part-D-Benefits-
Manual-Chapter-6.pdf
145
CMS Calculation Errors

CMS frequently miscalculates dosages and frequency of prescribed
drugs
Example:
Oxycodone versus Extended Release Formulation
146
Development Letters
Response Times
10 Business Days to issue
19 Business Days for response to submission of requested info
Payment Histories
Supporting documentation
Identifies missing treatment records
No recent treatment
Unrelated Medical
Medical Affidavit
Non-Industrial Providers
Access to records
147
Disputed Conditions
Past Review & Process
Inconsistent and subjective
Exclusion based on payments made or not made
Legal rationales
CMS Current Review
Much the same
Exceptions
Payments to Physician, if notes mentioning disputed and accepted
conditions
Adding medical treatment without medical record support
Continued requests for medical records outside the purview of
Workers Comp Claim
148
Zero Allocations
Zero Allocations
Different than MSA waiver for completely denied claims
CMS is likely to include additional funds
149
Re-Review Requests
Request a Re-Review when:

(1) you believe CMS determination contains obvious
mistakes (e.g., a mathematical error or failure to
recognize medical records already submitted showing a
surgery, priced by CMS, that has already occurred); or
(2) you believe you have additional evidence, not
previously considered by CMS, which was dated prior to
the submission date of the original proposal and which
warrants a change in CMS determination
150
Proactive Allocation Strategies
Future Medical Treatment

Should be clearly defined in medical records
Payers have to demand clear future care plans from providers
Require providers to list WC related treatment
Part B Allocation Strategies
Injections should be monitored
Pumps should be priced based on state
Prosthetics should be replaced based on necessity, type and
prescription
151
Allocation Strategies (cont.)

Use affects replacement frequency
Custom Braces coverage determinations
152
Allocation Strategies (cont.)
Overall Focus:
Clearly define legal pleadings and conditions claimed
Address pharmacy issues early on
Engage U/R early in the claim cycle when appropriate
Ensure physician treatment recommendations are clear
Use AME/PQME to bind parties to particular arguments
Use IMR when conditions or treatments are not
supported
IMR findings should be implemented as soon as
possible
153
Questions?
154
Divided We Stand- Medicare Advantage Organization
Case Law
155
DISCLAIMER: Per NAMSAP guidelines, the material to be discussed
herein is that of the presenters and is in no manner to be considered
the opinion of the NAMSAP Board or Association. In no manner should
this presentation be considered legal advice. This presentation is
provided for educational purposes only.
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156
Presenters
Ciara Koba, Esq., Associate Attorney, Burns

White LLC
Heather Schwartz Sanderson, Chief Legal
Officer, Franco Signor LLC
Hon. Lee Yeakel, Judge, US District Court
(TX, Western District)
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157
Case Citations
In Re Avandia Marketing, 685 F.3d 353(3d Cir. Pa. 2012), cert.
denied, 133 S. Ct. 1800 (2013)
Parra v. PacifiCare of Arizona, Inc., 715 F.3d 1146 (9th Cir. 2013)
Humana v. Western Heritage Ins. Co., No: 15-11436 (11th Cir.
2016; August 8, 2016)
Humana v. Paris Blank LLP, 2016 U.S. Dist. LEXIS 61814, Eastern
District of Virginia
Collins v. Wellcare Healthcare Plans, Inc., 73 F. Supp. 3d 653 (D.
La. 2014)
Humana Ins. Co. v. Farmers Texas Cnty. Mut. Ins. Co., 95 F. Supp.
3d 983 (D. Tex. 2014)
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158
I. Medicare Advantage Facts and Figures
a. Overview of the Medicare Advantage program
i. History / Numbers
ii. What is the difference between traditional
Medicare, Medicare Advantage Plans (MAP) and
Medicare Part D
b. How are MAPs are reimbursed
i. How are they paid?
ii. What do they do with the money they recover?
5
159
II. Medicare Advantage and MSP
a. How did we get here?
b. Pre-Avandia cases (Avandia I and the cases
leading up to it)
c. Avandia II and its progeny
i. Avandia II summary
1. Court rationale
2. What does Avandia II stand for?
3. Where do we stand in 3rd Cir. now?
6
160
d. Avandia II progeny.
i. Farmers cases
ii. Collins v. Wellcare
iii. Humana v. Paris Blank
iv. Parra v. Pacificare
7
161
e. Western Heritage (11th Circuit)
i. District Court decision
ii. Appeals Court decision / arguments
How do these cases impact parties when settling

claims?
8
162
III. Best Practices / Takeaways
a. What jurisdictions are hot spots?
b. How should you handle requests for
information?
c. Available approaches
d. Where will this lead?
9
163
QUESTIONS?
Cfkoba@burnswhite.com
Heather.Sanderson@francosignor.com
Lee_Yeakel@txwd.uscourts.gov
10
164
Questions?
165
Medicare Secondary Payer
Compliance: Transition to the
Commercial Repayment Center
(CRC) & Financial Impact
Prepared for:
2016 Annual Meeting
166
Presenter
Katie Fox
Franco Signor, Vice President of National Account Management
Monika Boswein
Acuity, Senior Claims Consultant
2
167
History and Terminology
Medicare became law in 1965 with Parts A & B
Medicare Secondary Payer Act (MSP) in 1980
Medicare will always be a secondary payer if a primary payer exists
Medicare can deny or pay a charge conditioned on being reimbursed
2007 update requires mandatory insurance reporting to assist in recovery

efforts
3
168
History of Recovery Contractors
MSPRC (Medicare Secondary Payer Recovery Contractor)
BCRC (Benefits Coordination and Recovery Center)
CRC (Commercial Repayment Center
4
169
The Commercial Repayment Center
Newest CMS contractor
Effective 10/5/15
New method of dealing with conditional payments effective 10/26/15
Applies to open ORM claims (Ongoing Responsibility for Medicals)
5
170
Historically, the BCRC would wait on ORM to terminate then collect

conditional payments
Big problem! The 3 year statute of limitations per the SMART Act
CMS issued a alert in 7/15 allowing multiple demand letters to be sent
Now, the CRC will handle this on open ORM claims
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171
Effective 10/26/15, the CRC will be able to issue conditional payment notices
(CPNs) on open ORM claims
The primary plan has 30 days to pay or dispute
If not disputed in 30 days, then 30 days later a demand letter is issued
Interest begins to accrue immediately! 10.25 %
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172
Impact on Insurers
As of October 26, 2015, CMS began issuing Conditional Payment Notices to

insurers
Insurers may receive multiple Conditional Payment Notices on a single

claim with open ORM
Timely responses to Conditional Payment Notices are imperative in order to

dispute unrelated payments and avoid interest
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173
Exposure Review
Conditional payments should be closed out when settling claims involving

Medicare beneficiaries
If not closed out at the time of settlement, Conditional Payment Notices may be
forthcoming
Receipt of a Case Closure letter from Medicare confirms conditional

payments have been addressed in full
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174
Addressing Conditional Payment Notices
All claim staff must be aware of Conditional Payments Notices and the
importance of timely responses
Conditional Payment Notices provide timelines and instructions for filing

disputes
Implement a process to ensure Conditional Payment Notices are processed

appropriately and timely
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175
Questions and Discussion
176
The Current State of Conditional
Payment Recovery
Michele Carey, Esq. Ruegsegger Simons Smith & Stern
Shawn Deane, Esq. ISO Claims Partners
William A. Delaney, Esq. Nyhan, Bambrick, Kinzie & Lowry

177
DISCLAIMER: Per NAMSAP guidelines, the material to be discussed
herein is that of the presenters and is in no manner to be considered
the opinion of the NAMSAP Board or Association. In no manner should
this presentation be considered legal advice. This presentation is
provided for educational purposes only.
2
178
Agenda
Overview of the MSP & Conditional Payments
Conditional Payment Recovery Contractors &Functions of
the BCRC & CRC
Breaking Down the Conditional Payment Process
Obtaining Information
Authorizations
Types of Correspondence w/Examples
Disputes
Demands
Appeals Process
MSPRP
Treasury
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179
Overview of the MSP &
4
180
The MSP Act
The 1980 MSP Act (42 U.S.C. 1395y) is in place to generally prohibit
Medicare from making payment when another primary payer / plan
has made payment or where payment can reasonably be expected to
be made with regard to Medicare-covered treatment
The intent behind the MSP Act is to preserve the Medicare Trust Fund
by requiring that Medicare be secondary to alternative sources of
payment
The MSP Act is applicable to Group Health plans (GHP), as well as Non-
Group Health Plans (NGHP), including Workers Compensation,
Liability insurance (including self-insurance) and No-Fault insurance.
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181
If a Primary plan has not made or cannot

reasonably be expected to make payment
then Medicare may make a payment on the
condition of reimbursement.
These are Conditional Payments.
6
182
Elements of a Conditional Payment
Medicare Beneficiary
Claim for benefits (accident, injury, illness, treatment)

with applicable primary payer / plan
Medicare-covered treatment provided
Primary payer / plan has not made payment or cannot

make payment within a reasonable time
Medicare makes payment for treatment on the condition

that it will be reimbursed
7
183
Occurrences of When They Arise
Improper billing by provider
Denied claim by primary payer
Other insurance presented by the claimant
8
184
How does Medicare know about
Conditional Payments?
Reporting: To a large degree, Medicare finds out about conditional payments
depending on what insurance type is implicated:
Workers compensation MMSEA Section 111 reporting data on

diagnosis codes, Ongoing Responsibility for Medicals (ORM) & Total
Payment Obligation to Claimant (TPOC), telephonic reporting by
applicable plan and/or beneficiary/beneficiaries representative.
Liability Telephonic self reporting, Sec. 111 data (TPOC)
No-Fault - Sec. 111 data (ORM), telephonic self reporting
Note on Sec. 111 and Telephonic Self Reporting
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185
Right to Recovery
Why? As a matter of law, Medicare has a right to recover conditional
payments. 42 U.S.C. 1395y(b)(2).
Who? Medicare can recover its payments from any entity, including a
beneficiary, provider, supplier, physician, attorney, State agency or private
insurer that has received a primary payment.42 CFR 411.24.
When? 1) Medicare can initiate recovery as soon as it learns that

payment has been made or could be made under workers' compensation,
any liability or no-fault insurance 42 CFR 411.24; and 2) [a] primary plans
responsibility may be demonstrated by a judgment, a payment conditioned
upon the recipients compromise, waiver, or release (whether or not there is
a determination or admission of liability) of payment for items or services
included in a claim against the primary plan or the primary plans insured, or
by other means. 42 U.S.C. 1395y(b)(2)(B)(ii).
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186
Recovery Methods and Exposure
Direct Recovery: Demand from CMS via Contractors
Interest Accrual
Referral to U.S. Department of Treasury
Lawsuit for Double-Damages
Private Cause of Action Lawsuit
11
187
Contractors & the
Functions of the
BCRC & CRC
12
188
Recent Timeline: Conditional Payment
Recovery Contractors
June 7, 2013 Group Health, Inc. (GHI) was awarded the contract for a
consolidated coordination of benefits and recovery entity.
February, 2014 CMS completes transition of consolidated COB/Recovery

contractor, the Benefits Coordination & Recovery Center (BCRC), essentially
consolidating the COBC and MSPRC. GHI oversees operations.
October 5, 2015 Commercial Repayment Center (CRC) goes live and takes
over recovery where applicable plan is identified as the debtor. CGI Federal
oversees operations.
13
189
Benefits Coordination &
Recovery Center - BCRC
BCRC oversees MMSEA Sec. 111 Mandatory Insurance reporting
and MSP Coordination of Benefits and call-center.
As of 10/5/2015, recovers conditional payments

where the beneficiary is the identified debtor. (Typically, liability
claims and WC claims post-settlement.)
Will continue to pursue recovery cases where it initiated

recovery activities prior to 10/5/2015
Contract currently held by GHI
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190
Commercial Repayment Center - CRC
As of 10/5/2015, identifies and recovers conditional
payments for all new* recovery cases where CMS
pursues recovery directly from an applicable plan as
the identified debtor. (Workers compensation, liability
and no-fault claims)
CRC also oversees a separate Group Health Plan

recovery program
CRC contract currently held by CGI Federal

*Note on definition of new
15
191
Breaking Down the
Conditional Payment
Process
16
192
High-Level Overview of Process
Initiating process depends on if dealing with CRC or BCRC
Requisite Authorization (LOA / POR / CTR)
Requesting Goal here is to obtain copy of correspondence (CPL/CPN)
Reviewing Medicares Correspondence (PSF/SOR)

Engaging in a Dispute
Disputing
Obtaining a demand or final demand

Repayment to Medicare
Finalizing Appeals Process
17
193
Obtaining Conditional Payment Information
CRC BCRC
10/5/2015 go forward, CRC seeks 10/5/2015 go forward, BCRC
recovery against applicable plan recovers against beneficiary as
as debtor = WC & NF debtor (typically following TPOC
Issues Conditional Payment Notice event in WC and Liability)
(CPN) based upon assumption of BCRC will still maintain
ORM via Sec. 111 reporting responsibility for existing MSP
Can also telephonically report recovery claims in WC and NF
claim to BCRC to create CRC BCRC requires LOA (where
recovery claim applicable plan is debtor if POR
Third-party will need to submit wasnt previously validated) or
Letter of Authority (LOA) to POR (in liability claims)
receive letter or initiate dispute
Once CPN is issued, must be
disputed within 30 days of
issuance of letter as demand will
issue
Note on Recovery Agent
18
194
Authorizations Broken Down
LOA POR CTR

Letter of Authority Proof of Representation Consent to Release
In instances where Authorization Signed by the beneficiary
applicable plan is the Applicable in instances only
debtor with the CRC (and where the beneficiary is the Typically only allows
BRCR if a POR wasnt debtor with the BCRC recipient to receive a copy
verified prior) Signed by pro-se claimant of the conditional payment
Signed by representative or plaintiff and their letter where the beneficiary
from applicable plan and attorney is the debtor
third-party requesting Allows recipient to receive
information correspondence, effectuate
Allows recipient to receive disputes, engage in appeals
correspondence and
effectuate disputes
19
195
Examples of CP Correspondence: RAR
Rights and Responsibilities (RAR): From BCRC - essentially an initial confirmation
that a conditional payment file has been opened.
20
196
Examples of CP Correspondence: No-Claims Paid
No Claims Paid Letter: From BCRC - an indication that Medicare currently has not
made any conditional payments as of date of letter.
21
197
Examples of CP Correspondence: No-Claims Paid
No Claims Paid Letter: From CRC - an indication that Medicare currently has not
made any conditional payments as of date of letter.
22
198
Examples of CP Correspondence: CPL
Conditional Payment Letter (CPL): From BCRC or CRC Indicates CP charges.
Includes Statement of Reimbursement (SOR) from CRC. CPL may also issue from
BCRC and contain Payment Summary Form (PSF) from BCRC.
23
199
Examples of CP Correspondence: PSF
Payment Summary Form (PSF): From BCRC Lists contended conditional
payments made by Medicare.
24
200
Examples of CP Correspondence: SOR
Statement of Reimbursement(SOR): From CRC Lists contended conditional
payments made by Medicare.
25
201
Examples of CP Correspondence: Demand
Demand Request for repayment; 60 days to repay or interest may accrue; appeal
rights.
26
202
Examples of CP Correspondence: ITR
Intent to Refer Delinquent demand can come from CRC or BCRC.
27
203
Types of Conditional Payment Correspondence
On the Spectrum of a Claim
DOI Pre-Settlement Settlement
No Claims Paid / $0
RAR
from BCRC
Conditional Payment Letter (CRC Conditional Payment
or BCRC) Notice from BCRC
Conditional Payment Notice CRC Demand from CRC/BCRC
Demand from CRC Notice of Intent
Notice of Intent from CRC
28
204
Disputing Conditional Payments
Pre-demand, BCRC and CRC can be engaged in a
dispute.
Note on disputing CPNs: 30 days
Can be initiated via written communication or MSPRP
Disputes can occur for various reasons primarily due

to the relatedness of claims asserted or for denied /
unauthorized treatment
Case Study Example(s) on Disputes
29
205
Demand for Conditional Payments
Request for repayment from Medicare.
CPLs and CPNs are interim and are not demands for
repayment.
Will typically issue following TPOC events: WC and liability.
Will also issue following CPNs passing 30 day period
Repayment must occur within 60 days of the date of the
demand or interest will accrue from the original date of the
demand
120 Days to Appeal
Note: If only disputing part of demand, consider paying non-
disputed payments to save on interest
30
206
Appeals Process
1) Reconsideration by the Initial Contractor
2) Qualified Independent Contractor (QIC)
3) Administrative Law Judge (ALJ) will review and

adjudicate the dispute
4) Medicare Appeals Council will review the

adjudication
5) Finally, potential for review in Federal Court
31
207
MSPRP
32
208
Medicare Secondary Payer Recovery Portal
MSPRP web-based portal to conduct conditional payment activities on
BCRC / CRC claims
Portal is administered by the BCRC
Can upload authorizations, view claims, initiate dispute process, submit

settlement information
Take part in expedited CP process

Within 120 days of a possible settlement date, the claimant or authorized
applicable plan can notify Medicare of intention to settle and should use the
conditional payment web portal to obtain a final conditional payment
amount.
If the expedited process is used, individual claims may be disputed once and
only once using the web portal.
After the final conditional payment amount is obtained, the amount is valid
for 3 calendar days.
33
209
Treasury
34
210
U.S. Department of Treasury
Following 120 days after payment is due on a

delinquent debt, Medicare may refer the debt to U.S.
Department of Treasury for collections
Direct collection
Collection by PCAs
Treasury Offset Program
35
211
PRIMARY PAYER APPEALS
How primary payers can navigate recent rulemaking to pursue
conditional payment appeals, and to which cases this process is best
applied.
212
qDefinitions & Procedure
qThe Claims Office Fundamentals
qLevels of the Appeal Process
qDefective Appeals
213
Definitions and Procedure
Medicare Secondary Payer Act (MSP)
42 USC 1395(y)(b)(2)
Medicare reserves the right to remain a secondary payer in the context of civil claims where a primary
payer (plan) exists
MSP Defined Primary Plans
Liability
Automobile
Self-insured
No-fault
42 USC 1395(y) and CFR 411.1-37
governing Medicares right to reimbursement
Strengthening Medicare and Repaying Taxpayers (SMART) Act

Inefficiencies under the old system led Congress to enact
Conditional payments must be satisfied before settlement
Primary Payers to have access to portal to obtain conditional payment amounts
214
Primary payer right to appeal under the new process
Understanding of the new process of Conditional Payment Resolution after October 5, 2015
Reporting
BCRC collection, management and reporting of other insurance coverage
Conditional Payment Notice
30 days to file dispute
Dispute
Demand
60 days for payment
Appeal
Initiate formal appeal process by requesting redetermination
Failure to Respond
Interest will accrue if debt is not resolved within 60 days
Intent to Refer to the Treasury
Referral if any debt remains delinquent for 180 days
215
Benefits Coordination & Recovery Center (BCRC) v. Commercial Repayment Center (CRC)
Benefits Coordination & Recovery Center - corresponding contractor

All claims should be reported to the BCRC whether Liability, No-Fault or WC
If it is determined that the beneficiary should reimbursement Medicare, BCRC will begin the process of
recovery
If it is determined that there is a primary payer involved in the claim, the BCRC will transfer the matter to
the CRC for handling
Identified debtor on demand will be the beneficiary
Commercial Repayment Center primary payer responsibility

CPL issued where there is an primary payer and the claim was not otherwise reported by the applicable
plan.
CPN issued where the applicable plan has reported an Ongoing Responsibility for Medical (ORM).
Identified debtor on demand will be the applicable plan
216
MSPRP Medicare Secondary Payer Recovery Portal
Obtaining conditional payments amounts and final demands for payment

from the MSPRP
Remote Identity Proofing (RIDP) and Multi-Factor Authentication (MFA)
Primary payer ability to dispute conditional payments though the MSPRP

prior to demand
Primary payer may submit authorization documentation via the portal
217
Awareness Points
Which contractor is responsible for overseeing recovery of
conditional payments?
Beware of Deadlines
30 days to dispute medical claims on Conditional Payment Notice
60 days to pay demanded amount before interest begins to accrue
If debt remains unpaid for more than 180 days referral to the
Department of Treasury will be initiated
Identified debtor will control the right to dispute/appeal
218
The Claims Office Fundamentals
Claim Day 1:
What are you paying for?
Watch closely immediately.
What if I have to cover an unrelated condition temporarily?
219
The claims adjuster should audit the diagnosis codes on the

medical bills upon receipt of the medical bill, prior to paying
the bill.
220
Old claim payment review

How to overcome the past?
Review when file becomes yours, review the diagnosis and payment codes.
Create administrative processes that automatically cross check.
What if I paid something I should not have?
Ask medical provider for reimbursement
Ask medical provider to change codes on bill to correctly match treatment
record
Obtain medical opinion on causations
221
Options if I paid a medical bill the that diagnosis code is
unrelated to my claim:
- Ask the Medical Provider for a reimbursement on the paid
medical bill.
- Ask the Medical Provider to correct the diagnosis codes on
the medical bill to match the treatment provided.
- Obtain a medical opinion on causation that the treatment
was only needed on a temporary basis to treat and
underlying condition to assist in treating the accepted
injury.
222
Current CPL payment review

What do I need to do to help my attorney/vendor appeal CPL?
Payment log with diagnosis codes
Have necessary records (causation opinions, records defining extra circumstances,
etc)
223
The Adjuster can significantly ease the
conditional appeal process in advance
by:
- Maintaining a payment log tracking diagnosis codes paid
- Clear up any incorrectly paid medical bills as soon as the
issue is identified
- Have necessary causation opinions for temporary
diagnosis codes for underlying conditions
224
Levels of the Appeal Process
Initial determination
Redetermination
Reconsideration
ALJ Hearing
MAC Review
Judicial Review
225
The Applicable Plan (AP) has formal administrative appeal rights
when CMS issues the Demand for repayment letter. This letter is
also known as the Initial determination. The AP may appeal the
amount of the debt indicated in the Demand in part or in full.
vRedetermination First level of appeal

-The AP has 120 days from date of the initial determination to
file a redetermination request.
-Redetermination review is conducted by the contractor that
issued the recovery demand letter (BCRC or CRC).
226
vReconsideration Second Level of Appeal
Review conducted by a Qualified Independent Contractor (QIC).
AP has 180 days (6 months) from date of redetermination letter
to file the request.
AP should clearly explain why they disagree with the
redetermination decision and submit any missing or additional
evidence for review.
Note: Evidence not submitted at the reconsideration level may be excluded from
consideration at subsequent levels of appeal unless appellant demonstrates good cause
for submitting the evidence late.
227
vALJ hearing- Third Level of Appeal
-Hearing is conducted by an Admin Law Judge via video teleconference,
telephone, or occasionally in person (must demonstrate good cause).
- AP must file request within 60 days of receipt of the reconsideration
decision letter or after the expiration of the reconsideration period if the
QIC has a delay in making its determination.
- The Amount in Controversy (AIC) threshold must be met in order to
request a hearing. The AIC is updated annually and can be found by
visiting the CMS website. For calendar year 2016, the amount in
controversy threshold remains at $150.
228
v Medicare Appeals Council (MAC)- Fourth Level of Appeal

- Review is conducted by the Departmental Appeals Board's (DAB)
- AP must file request within 60 days of receipt of ALJ decision
v Judicial Review Fifth Level of Appeal
-AP must file a request for judicial review within 60 days of receipt of the
Appeals Councils decision. The Appeals Councils decision will contain
information on how to file a claim in U.S. District Court.
- The AIC threshold must be met in order to request Judicial Review
229
Defective Appeals
v AP Not the Debtor
if the AP is not identified by CMS as the debtor they do not have appropriate
status to appeal e.g. receipt of courtesy copy of demand letter.
CMS will dismiss AP appeal.
v Untimely filing
appeal requests not received by CMS within the specified timeframe will be
dismissed.
AP can appeal the dismissal and the request will reviewed by CMS on a case by
case basis.
AP should provide CMS with evidence to demonstrate that the appeal was
timely filed.
230
Defective Appeals
vAgent of AP with no authority
If AP hires an Agent or defense counsel appeals on their behalf

they must demonstrate the proper chain of authority (e.g. Proof
of Representation) or the appeal request will be dismissed.
If the AP disagrees with the dismissal decision they can file a
request to vacate the dismissal.
If the Agent can provide valid written Proof of Representation
within the appeal timeframe they can re-file the appeal request.
231
Defective Appeals
v Waiver of Recovery (Social Security Act 1870 ,42 U.S.C 1395gg(c)

This type of appeal request is only applicable to the Medicare beneficiary and
not the AP. The beneficiary must apply for a waiver in writing (SSA Form 632-
BK) and demonstrate that recovery by Medicare would either:
- Cause an economic hardship for the beneficiary

or
- Be against equity and good conscience
v Pro Rata Reduction for Attorney Fees and Costs

Not applicable where AP is the identified debtor.
232
Practice Points
Pay Attention
Review and respond to all CMS correspondence in a timely manner.
Pay and Dispute
Interest begins to accrue from the date of the initial determination letter and is assessed while you appeal.
Pay first, and then file your appeal. If you are successful in your appeal, either fully or partially, CMS will
return your money.
Be Specific
Let CMS know exactly what you are requesting (e.g. Reconsideration) and the basis for the appeal (all
charges for treatment by Dr. D. Howser on the following dates )
Provide Evidence
Any documentation that supports your appeal request should be submitted to CMS for review. This is
critical in having CMS decide in your favor.
Evidence not submitted by or before the reconsideration level may be excluded from consideration at
subsequent levels of appeal unless there is a showing of good cause for not submitting said information
earlier in the process.
233
Questions?
Deborah Robinson Stewart, JD

Genex Services, LLC
Deborah.Robinson-Stewart@genexservices.com
Kim Young, JD
Burns White, LLC
kwyoung@burnswhite.com
Melissa Woitalewicz
Crete Carrier Corporation
mwoitalewicz@transclaims.com
234
Adventures in Allocating
Namsap Annual Conference - 2016
San Antonio, Texas
235
Objectives
1.Identify additional resources within the vendor community to
assist participants in allocating MSAs creatively and outside the
box.
2.Identify alternative ways for allocating MSAs that are submitted to
CMS and ones that are not submitted to CMS for review.
3.Identify methodology /strategy for formulation of MSAs based on
state specific law and unusual client requests.
236
Resources for Allocating
Workers Compensation Liability
Noridian for coverage determinations Noridian for coverage determinations
Allegro Medical for DME and Supplies pricing Allegro Medical for DME and Supplies pricing
Truven (Redbook), submission portal Truven (Redbook), WAC, Good RX, Rx Price quotes
Fee Schedules: Medata, Strata-Ware, Zebra, Various WC state Fee Schedules: Medata, Strata-Ware, Zebra, There are others
agencies (some may be online or downloaded for free). There are
others
WCMSA reference guide Not much in writing from CMS: Sally Stalcup memo, CMS Memo
dated 9/29/2011 When you DONT need an MSA
CMS Updates / Town Hall Meetings CMS Updates / Town Hall meetings
Your own experience/ trends with past approvals Your own experience/Experiences of others
The Complete Guide to Medicare Secondary Payer Compliance The Complete Guide to Medicare Secondary Payer Compliance
237
Allocating Content and Frequency of Future
Treatment based on WCRC Trends
Office Visits: Frequency of office visits increased in some regions
Physical Therapy: Frequency of physical therapy visits varies
Diagnostics: Up-code to contrast. No obvious change in frequency
Surgery: Increase in cost varying by state
DME: Prosthesis Replacement cost seeking itemized bill, Replacement frequency, Dual limb
replacements
Medications: Off label vs. FDA approved use, PRN vs. Routine Use, How MD documents
mediation in office notes.
238
Allocating for RX - Off Label Exclusions
Lyrica
Lidoderm
Flector (?)
Others:
239
Allocating for RX Recent inclusions
Zofran (Ondansetron) - Recent price drop - 0.94
Barbiturates
240
Allocating Outside the Box: An Employer
Perspective
241
Allocating Outside the Box: An Employer
Perspective
YOU SUBMITTED AN MSA TO CMS AND ...
they came back with a much higher number and refuse to reevaluate their decision
they refuse to complete the review because we cannot produce documents that
dont exist.
they included surgery that claimant refuses and the injury can and is being treated
palliatively
they included drugs that claimant isnt taking any longer at prices higher than we pay
theyve priced the surgery and DME higher than anything we have ever payed
before.
242
Albertsons Approach to MSAs & Submission
2013/2014: Corporate Risk Management adopted a Non Submission
Program
Decision was based on :
Delays in CMS approval
Increasing development letters
CMS inclusions that are not consistent with EBM
AWP cost of medications
OVER inflated cost of MSAs by at least 30%
Discussion on our appetite for risk and risk management analysis
243
Consider Medicares interest in every settlement of Future Medical
Care
Conduct an analysis of future medical needs that provides a FAIR &
REASONABLE allocation that is based on the medical records and
Evidenced Based Medicine.
No submission to CMS for MSAs $75,000* or less
Offer of professional Administration on ALL MSAs
Mandatory signature of declination of professional administration
Special language in settlement documents regarding non-
submission and pay or defend
244
MSA Formulation
Diagnostic testing and allocation frequency based on
medical record , and EBM
Surgery allocation based on claimant zip code and fee
schedule
Only PROBABLE Future medical treatment , procedures and
surgeries included, not POSSIBILE treatment
UR denials, IMR decisions, PQME and AME recommendations
utilized for forecasting or excluding future treatment.
245
MSA Formulation
Medication allocation takes into account the claimants medical
history, co-morbidities, age, etc. Consideration when brand name
drugs will become generic. For duration, drugs are not always
allocated over the claimants LE; consideration as to how likely
medications will continue over LE, any side effects, dosing changes
with the aging process, etc. Any non-LE allocations are explained
Prescription drugs priced per Albertsons PBM, not AWP
Off label RX drugs included in settlement but not always over life
expectancy
Opioid allocations consistent with CDC guidelines / Peer Review
246
Case Study #1
Mrs. V. Garcia , 39 year old checker who slipped on wet floor . Accepted body parts are
cervical spine and bilateral shoulders. Case involves a cumulative trauma claim.
Life expectancy : Rated age of 41 and LE of 40 years
Surgical History :
01/12/10 Anterior cervical fusion, C4-5
04/05/11 Anterior cervical discectomy and fusion, C3-4
03/08/12 Anterior cervical discectomy and fusion, C5-6
02/18/14 Revision anterior cervical discectomy and fusion, exploration of the fusion
and removal of instrumentation, C5-6
Medications:
Oxycodone-APAP 10/325mg, six daily
Diazepam 10mg, four daily
247
Case Study #1 : MSA Results
MSA with AWP
MSA future medical treatment : $ 38,678.41
MSA future prescription: $305,688.96
Total MSA : $344,367.37
MSA with PBM Drug Price
MSA Future medical treatment: $38,678.41
Total MSA : $113,440.91
248
Case Study #1
Savings
Prescription Drug : $230,916.46
249
Case Study #1: MSA with Application of Opiate
Guidelines/Peer Review
MSA with AWP
MSA future medical treatment : $ 38,678.41
Total MSA : $187,961.77
MSA Future medical treatment: $ 38,678.41
MSA future prescription: $ 36,759.89
Total MSA : $ 75,438.30
250
Case Study #1: Savings with Peer review
MSA with AWP

$344,367.37- $113,440.91= $230,926.46
MSA with PBM Price

$113,440.91-$75,438.30= $38,002.61
251
Case Study #2
Ms. Evelyn A ,46 year old .bookkeeper with injuries in 03, 04 and 06. Accepted body parts include LUE and
shoulder , Right LE and hip , lumbar spine and psych.
Life expectancy : rated of 48 and LE of 33.3
Surgical Hx:
Excision ganglion cyst
Bilateral CTR
Shoulder RTCR
Discectomy and fusion
Failed SCS trial
Intrathecal Pump trial recommendation
Medication:
Gabapentin 300 mg and 600mg IMR : Denial Of Xanax and Cymbalta
Tramadol ER
Cyclobenzaprine
Fluoxetine
Hydrocodone/ APAP 10mg/325 #180
Amitriptyline
252
Case Study #2: Results
MSA with AWP
MSA future medical treatment : $279,863.60
Total MSA : $696,732.80
MSA Future medical treatment: $ 48,997.74
Total MSA : $200,289.54
253
Case Study #2: Savings
Savings
Future Medical treatment : $230,865.86
( diagnostic frequency, intrathecal pump trial only)
Prescription Drug : $265,577.40
Total Savings: $496,443.26
(added savings of $64,172
for IMRed medications)
254
Program Results
255
Liability Claims and MSP
CMSP
256
Future
Med
MSA?
MSP
Section
111 Conditional
Payments
Reporting
257
MSA (Medicare Set Asides)
WC vs. Liability
What are the differences?
258
MSA - Differences WC - Liability
Workers Compensation l Liability
No Fault Coverage for EEs l Negligence required

l Comparative Fault
Buckets: l Special damages
Indemnity/past and future l Non-future medical damages
Medical/past and future
l Potential recovery buckets: (settlement
Clearly defined thresholds: allocations)
l Economic damages
l Past medical expenses
Class I Medicare beneficiary/ $25,000+
l Future medical expenses
Class II Not yet-Medicare eligible but
l Loss of earning capacity
Reasonably expected w/i 30 months
l Loss of household services
and ) - $250,000+
l Non-economic damages
l Pain & suffering
Class III Under $250K/Reasonably
l Mental anguish
expected w/i 30 months
l Loss of independence
Class IV-all other categories
l Loss of society
4
259
MSA - Differences WC - Liability
l Liability - is an Allocation/MSA recommended? Under what circumstances?
The law clearly requires the primary payer to consider Medicare's interests in a settlement.
The MSP statute has been interpreted to include future medicals.
Medicare's authority to demand that their interests be protected against future Medicare covered
medical treatment stems from the general intent of the MSP statute and more specifically,42 U.S.C.
1395y(b)(2)(A).)(
As Indicated In 42 U.S.C. 1395y(b)(2)(A) once "payment has been made" then Medicare can not
make payment. Monies received In a settlement are in part, payment for future Medicare covered
medical treatment
Chapter 1, Section 20 of its Medicare Secondary Payer (MSP) Manual 41, CMS
amended the definition of a "set-aside arrangement" as including "no fault liability
Medicare set-aside arrangement (NFSA) or liability Medicare set-aside arrangement
(LMSA).
5
260
KEY ?
WHOSE RESPONSIBILITY IS IT TO ENSURE

MEDICARES INTERESTS ARE CONSIDERED?
All Parties seem to agree on a shared

obligation as to Conditional payments but not
all agree how to address future payments
261
Best practices in dealing with MSP
Educate. Make sure the parties know who is going to be responsible to do what.
Evaluate. Every case, regardless of Liability or WC, should have a damage

evaluation performed to determine whether any portion of the settlement (or
judgment) proceeds were paid to cover future medical expenses otherwise
payable by Medicare.
Agree (on Medicare compliance language in the release)
262
Future Exposure
l Future Medical Allocation (FMA)

l Following the above compliance phases, one final piece of the implementation puzzle may
be to develop, in the appropriate fact pattern, a future cost of care analysis by obtaining an
Allocation report and identifying Medicare covered medical
l While the plaintiff may or may not agree with an Allocation and/or agree to set aside the
funds, it may serve to limit CMS from asserting a right to a higher amount or even the entire
settlement.
l Submitting such report to CMS is not required in any case and to do so could result in a
situation whereby the proposed amount could change
263
Equity and Procurement Costs
l .. Addressing Equity by apportioning the Allocation when circumstances dictate is

becoming common and some courts have taken an active role (see Benoit)
l Reducing the Allocation for procurement costs borne by the claimant/plaintiff based on 42
CFR 411.35 (see Hinsinger) .
264
CMS Rule Making Proposal
Advanced Notice of Proposed Rule Making
Categorizing cases by severity
7 Options provided
2001 WC Guidance is not Rule of Law
265
CMS Conclusion
Industry input was particularly unhelpful
Notice of Proposed Rule Making was expected

by the fall 2013
ANPRM commented that some provisions would

be a fit for WC
PRM submitted to OMB then withdrawn
266
Industry Views
AAJ and DRI public comments suggest the

Claimant/Plaintiff has the sole responsibility
to consider Medicares interests in a Liability
claim
Defendants/Carriers are concerned because it

is not clear and they are often viewed as the
deep pocket
267
OPEN QUESTIONS
Who is responsible to consider Medicares

interests?
Saying an MSA is not needed begs the ? as to

how a cost shift is addressed
Does simply crafting language putting the

responsibility on the Claimant/Plaintiff suffice?
268
Settlement Language
Covering All Bases
Vincent J. Quatrini, Jr. Quatrini Rafferty, P.C.
Joy H. Brewer Brewer Defense Group
James R. Raines Breazeale, Sachse & Wilson, L.L.P.
269
Speakers
Vincent J. Quatrini, Jr., JD

Quatrini Rafferty
550 East Pittsburgh St.
Greensburg, PA 15601
Phone: 724.837.0080
Fax: 724.837.1348
Email: vjq@qrlegal.com
270
Speakers
Joy H. Brewer, JD
Brewer Defense Group
1033 Wade Avenue, Suite 100
Raleigh, North Carolina 27605
Phone: 919.238.1577
Fax: 919.926.1161
Email: jbrewer@brewerdefense.com
271
Speakers
James R. Raines, JD, MS, MMFT, CMSP

Breazeale, Sachse & Wilson
One American Place, Suite 2300
P.O. Box 3197
Baton Rouge, Louisiana, 70821
Phone: 225.381.8058
Fax: 225.381.8029
Email: james.raines@bswllp.com
272
Settlement language based on context
WC, Medicare beneficiary, settlement over $25k
WC, Medicare beneficiary, settlement under $25k
WC, Reasonable Expectation, settlement over
$250k
WC, Reasonable Expectation, settlement under
$250k
Liability, Medicare beneficiary
Liability, Non-Medicare beneficiary
Settlement completed before/after CMS
review/approval
273
CMS approval of a WCMSA is allowed when one of
the following is true:
The claimant is currently a Medicare beneficiary and
the total settlement amount is greater than $25,000;
OR
The claimant has a reasonable expectation of
Medicare enrollment within 30 months of the
settlement date and the anticipated total settlement
amount for future medical expenses and
disability/lost wages over the life or duration of the
settlement agreement is expected to be greater than
$250,000.
6
274
Calculating Total Settlement Amount
From the 4/25/06 CMS memo: Note that the
computation of the total settlement amount includes,
but is not limited to, wages, attorney fees, all future
medical expenses (including prescription drugs) and
repayment of any Medicare conditional payments.
Payout totals for all annuities to fund the above
expenses should be used rather than cost or present
values of any annuities. Also note that any previously
settled portion of the WC claim must be included in
computing the total settlement amount.
7
275
Reasonable Expectation
According to CMS, a claimant has a reasonable expectation of

Medicare enrollment within 30 months if the injured worker:
Has applied for Social Security Disability Benefits

Has been denied Social Security Disability Benefits but
anticipates appealing that decision
Is in the process of appealing and/or re-filing for Social
Security Disability benefits
Is 62 years and 6 months old
Has an End Stage Renal Disease (ESRD) condition but does
not yet qualify for Medicare based upon ESRD.
8
276
No Safe Harbor
Review thresholds
Created by CMS as an operational workload

standard
Not intended to indicate that injured worker

may settle below the review threshold with
impunity.
9
277
Critical elements: All settlements:
Beneficiary/Reasonable Expectation test
Are you settling future medical expenses?
Does Total Settlement Amount meet CMS
review threshold?
Do you submit to CMS for review?
Do you submit prior to completion of
settlement documents?
278
Critical elements: All settlements, Cont:
Can you finalize the settlement before

submission to CMS?
Funding: lump sum/annuity
Administration: self or professional
Conditional Payments/Outstanding
medicals
Indemnification/future claims
11
279
Where injured worker meets reasonable expectation
test - acknowledge it in settlement documents
Employee represents that she is currently eligible for
Medicare and has reviewed the proposed Medicare
Set Aside that will be submitted to the Centers for
Medicare and Medicaid Services (CMS) for
approval.
OR
Employee represents that while she is not currently a
Medicare beneficiary, she does have a reasonable
expectation of Medicare enrollment within the next
thirty months because
12
280
Where injured worker is not a beneficiary and does not
meet reasonable expectation test, spell it out in the
settlement documents.
Employee further represents and acknowledges that:
She has not applied for Social Security Disability Benefits.
She has not been denied Social Security Disability Benefits
but anticipates appealing the denial.
She is not in the process of appealing and/or refiling for
Social Security Disability Benefits.
She is not 62-years and 6-months old.
She does not have end-stage renal disease condition or
does not yet qualify for Medicare based upon end-stage
renal disease.
13
281
For the defense: Total Settlement Amount
generally drives submission in WC
Most national carriers prefer submission to
CMS if submission thresholds are met. Why?
CMS has indicated that once CMS agrees to

a Medicare Set-Aside amount, the individual
can be certain that Medicares interests have
been appropriately considered. April 22,
2003 CMS memo.
14
282
Why Obtain Approval?
If Medicares interests are not considered CMS has a

direct priority right against any entity, including a
beneficiary, provider, supplier, physician, attorney,
state agency, or private insurer that has received any
portion of a third party payment directly or indirectly.
42 CFR 411.25 (April 22, 2003 CMS memo)
If Medicares interests are not considered Medicare

may deny future treatment to the body parts injured
in the accident.
15
283
To submit or not to submit.
What if your settlement meets threshold

requirements and you decide it best NOT
to submit?
What was the basis for your decision?
How do you craft language in the
settlement documents to address this
decision?
16
284
What if Employee is a beneficiary/meets reasonable
expectation test and Total Settlement Amount does not
meet threshold?
The $24,999 settlement
How do you take Medicares interest into
consideration when you dont meet threshold?
Formal MSA?
Cost projection analysis?
Pick an amount to set aside?
Settle and pray?
17
285
Settlement Language: Finalization before
submission
In addition, RELEASED PARTIES agree to fund a Medicare Set Aside (MSA), in accordance with the
proposed Medicare Set Aside dated December 10, 2015, and prepared by MSA vendor, in the
amount of FORTY-SEVEN THOUSAND FIVE HUNDRED SEVENTY-THREE AND 73/100 ($47,573.73)
DOLLARS. The proposed MSA provides for an initial deposit (seed money) in the amount of THREE
THOUSAND, FIVE HUNDRED TWENTY-THREE AND 98/100 ($3,523.98) DOLLARS and annual payments
in the amount of ONE THOUSAND, SIX HUNDRED NINETY-FOUR AND 22/100 ($1,694.22) DOLLARS
for a total of twenty-six (26) years, if the claimant is living. The proposed Medicare Set Aside
addressed herein shall be submitted by the parties to the Centers for Medicare and Medicaid
Services (CMS) for approval. The Released Parties intend to fund the payment of the proposed
MSA or any updated MSA through a Reinsurance Agreement, Annuity, or as otherwise determined
by Released Parties.
The parties recognize that this settlement is being entered into prior to approval of the proposed
MSA by CMS. If for any reason CMS requires a greater amount for the Medicare Set Aside, the
parties agree that Released Parties have the option of either keeping the medical portion of the
case open or funding the MSA through a Reinsurance Agreement, Annuity, or as otherwise
determined by Released Parties.
The parties acknowledge, understand and agree that no action or decision by CMS concerning
Employees Medicare eligibility or the sum of money required to be set aside for the Employees
future Medicare covered costs will render this release void or otherwise ineffective, or in any way
affect the finality of this Workers Compensation settlement except with respect to the amount and
funding of the Medicare Set Aside approved by CMS, and/or the option of Released Parties to keep
the medical portion of this case open.
18
286
Settlement Language: Finalization after
submission
In addition, RELEASED PARTIES agree to fund a Medicare Set Aside (MSA),
in accordance with the proposed Medicare Set Aside submitted to and
approved by the Centers for Medicaid and Medicare Services (CMS) by
correspondence dated June 31, 2015, in the total amount of ONE
HUNDRED SIXTY-SEVEN THOUSAND FIVE HUNDRED FIFTY-FIVE AND 00/100
($167,555.00) DOLLARS. Said Medicare Set Aside shall be funded in a
structured manner by an Annuity Contract funded by Carrier on behalf of
EMPLOYER, through Annuity company (Employers ASSIGNEE) and
underwritten by the annuity issuer, Annuity company. The proposed
Medicare Set Aside provides for up-front seed money in the amount of
SIXTEEN THOUSAND SEVEN HUNDRED FIFTY-SIX AND 00/100 ($16,756.00)
DOLLARS, which amount shall be funded to EMPLOYEE. The annuity shall
also pay to EMPLOYEE the amount of SEVEN THOUSAND NINE HUNDRED
THIRTY-SIX AND 00/100 ($7,936.00) DOLLARS on an annual basis, beginning
October 1, 2016, for a period of nineteen (19) years, only if EMPLOYEE is
living, in accordance with the document attached hereto at EXHIBIT B,
entitled Terms of Structured Settlement.
19
287
Settlement Language: Self-Administration and
competency
Employee agrees to comply with all of the
requirements set forth by CMS in the approval
of the Medicare Set Aside and declares that he
will self-administer the Medicare Set Aside. He
further states that he is competent to self-
administer the Medicare Set Aside funds and
will complete all documentation required by
CMS for the proper administration of same.
20
288
Settlement Language: Self-Administration
In reaching this agreement, the parties have considered that many
common medical expenses are not payable or reimbursable under
Medicare. It is understood that the EMPLOYEE will use the necessary
portion of the remaining settlement proceeds in this case to cover
any such non-Medicare covered medical expenses.
The amount placed into the Medicare Set Aside in this case is based
upon a projection of the anticipated costs of future medical
treatment needs of the EMPLOYEE, to be paid in accordance with
the Louisiana Workers Compensation fee schedule. EMPLOYEE
should be certain that all payments to providers are adjusted
according to the Louisiana Workers Compensation fee schedule and
any money paid in excess of the fee schedule will not count toward
the amount that must be expended before Medicare will pay for any
medical treatment related to the work injury.
21
289
Settlement Language: Self-Administration
The Medicare Set Aside funds in this case are to be self-administered by

the EMPLOYEE. EMPLOYEE has been provided with the directives issued by
CMS regarding EMPLOYEEs rights and responsibilities in this regard.
Medicare requirements for self-administered Medicare Set Aside funds are
outlined in EXHIBIT C attached hereto. EMPLOYEE understands that the
Medicare Set Aside funds must be placed in an interest bearing account,
and this account must be separate from the individuals personal savings
and checking accounts. The funds in this account may only be used for
payment of medical services related to the work injury that would normally
be paid by Medicare. If payments from this account are used to pay for
services that are not covered by Medicare, Medicare will not pay injury
related claims until these funds are restored to the MSA account, and then
properly exhausted. EMPLOYEE further understands that annual reporting
must be prepared for submission to Medicare to include summaries of the
transactions and status of the account. These summaries are to include the
date of each service, procedure performed, diagnosis and paid receipt or
canceled check.
22
290
Settlement Language: Professional
Administration
Once funded, the MSA will be administered by Professional
Administrator, which administration will be paid for by
RELEASED PARTIES.
The MSA addressed herein shall be initially funded to
Professional Administrator with an initial deposit of THIRTY-SIX
THOUSAND THREE HUNDRED EIGHTY AND 00/100
($36,380.00) DOLLARS. On the anniversary of the initial
deposit, annual payments in the amount of FIVE THOUSAND
ONE HUNDRED EIGHTY-NINE AND 00/100 ($5,189.00)
DOLLARS shall be made to Professional Administrator on
behalf of claimant
23
291
Indemnification Language
It is specifically stipulated and agreed to that

EMPLOYEE will hold harmless, indemnify and
defend solely at her respective cost and
expense, including all court costs and
attorneys fees, RELEASED PARTIES against any
suit, claim, and/or demand asserted by CMS
and/or any entity on its behalf for any claim
arising out of this Medicare Set Aside and all
obligations therein.
24
292
Apportionment Language
Do you ever use settlement language

to address apportionment?
Factors to consider in apportionment:
WC cases
Liability cases
25
293
WCJ Approval of Settlement Language
Where state workers compensation judge

approves WC settlement, after conducting
hearing on the merits, Medicare will typically
accept the settlement, unless it does not
adequately protect its interests.
Failure to do so - Medicare will refuse to pay
for Medicare-covered services until after the
entire WC settlement has been expended.
(WCMSA Ref. Guide, version 2.5, Sec. 4.1.4)
26
294
Merit Hearing: Acceptance by Medicare
If a court, or other adjudicator (other

than a WCJ) has a hearing on the merits
and specifically designates funds to a
portion of a settlement that is unrelated
to medical services, such as lost wages,
Medicare will accept that determination.
(WCMSA Reference Guide, version 2.5,
section 4.1.4)
27
295
U.S. may bring an action against any/all

entities that are/were required or responsible
for making payments with respect to the same
item/service under a primary plan.
The U.S. may recover from any entity that has
received payment from a primary plan or from
the proceeds of a primary plans payment to
any entity. 42 U.S.C. 1395(y)(b)(2)(B)(iii).
28
296
Settlement Language: Conditional Payments
and Outstanding Medicals
EMPLOYEE acknowledges and represents that
neither Medicare nor Medicaid have made any
payments prior to the date of this settlement
agreement for this incident (and if such has in
fact been paid, EMPLOYEE will defend,
indemnify and hold harmless EMPLOYER
and/or RELEASED PARTIES, including all court
costs and attorneys fees for full
reimbursement of same).
29
297
Settlement Language: Conditional Payments
and Outstanding Medicals
EMPLOYEE acknowledges that it is her obligation to
pay any and all past, present, future, and/or
outstanding medical invoices, bills, liens, demands,
rights and/or privileges.
EMPLOYEE further agrees to satisfy, in full, any and all
liens and/or privileges and/or subrogation demands
and/or income assignment orders asserted by any
third party and EMPLOYEE hereby assumes all
obligations and/or responsibilities for the complete
payment of same.
30
298
CONDITIONAL PAYMENTS: DISCUSSION
Name three(3) scenarios

involving conditional payments
that precipitate clinically
diagnosable anxiety in
NAMSAP members.
31
299
Scenario 1: Not applied for SSD, Opinion of Full
Recovery, Detailed Treatment
Mr. Reed has not and will not be applying for Social Security Disability. He is only
54 years of age. It will be 11 years before he is entitled to Medicare. This case does
not meet the criteria set forth by the Centers for Medicare and Medicaid Services
(CMS) in their July 23, 2001, July 11, 2005 and/or subsequent memoranda to
require formal Medicare approval. Nevertheless, the parties are still taking into
consideration Medicare's interest in the within settlement pursuant to 42 CFR
411.46 and 411.47, the Medicare intermediary manual, and the Medicare
carriers manual. The only accepted injury in this case is a left knee sprain. The
employer has obtained the opinion of an orthopedic surgeon, Michael Pagnatto,
M.D. that Mr. Reed has fully recovered from the knee sprain. Nevertheless, the
parties have tried to predict what, if any, future medical care Mr. Reed may need for
the work related condition and have projected the sum of $1,208.00. (Six physician
visits, at $60.00 per visit; Six refills of medication, at $70.00 per prescription; Six
blood tests to monitor toxicity, at $50.00 per test; Two x-rays at $64.00 each. Total:
$1,208.00.) Mr. Reed will set aside the sum of $1,208.00 which, in the estimation of
the parties, reflects the cost of future treatment he may require over his lifetime for
the 3/1/14 work injury. Mr. Reed will use that money to pay for any work related
expenses and keep an accounting of any such expenditures before submitting any
future work related medical expenses to Medicare.
32
300
Scenario 2: Applied for SSD and denied, Appealed,
Opinion of full recovery; Detailed treatment
Ms. Watroba applied for Social Security Disability but was denied. She is, by definition,
not Medicare eligible. This case does not meet the criteria set forth by the Centers for
Medicare and Medicaid Services (CMS) in their July 23, 2001, July 11, 2005 and/or
subsequent memoranda to require formal Medicare approval. Nevertheless, the parties
are still taking into consideration Medicare's interest in the within settlement pursuant
to 42 CFR 411.46 and 411.47, the Medicare intermediary manual, and the Medicare
carriers manual. The only accepted injury in this case is a contusion of the right side of
the forehead. The employer has obtained the opinion of a physiatrist, James Cosgrove,
M.D., that Ms. Watroba has fully recovered from the forehead contusion and does not
suffer from any other work related injuries. Nevertheless, the parties have tried to
predict what, if any, future medical care Ms. Watroba may need for the work related
condition and have projected the sum of $1,208.00. (Six physician visits, at $60.00 per
visit; Six refills of medication, at $70.00 per prescription; Six blood tests to monitor
toxicity, at $50.00 per test; Two x-rays at $64.00 each. Total: $1,208.00.) Ms. Watroba
will set aside the sum of $1,208.00 which, in the estimation of the parties, reflects the
cost of future treatment she may require over her lifetime for the 9/2/14 work injury.
Ms. Watroba will use that money to pay for any work related expenses and keep an
accounting of any such expenditures before submitting any future work related medical
expenses to Medicare.
33
301
Scenario 3: On SSD, but not yet Medicare
eligible; settlement over $250,000.
Mr. Harden has been awarded SSD, but he is not entitled to
Medicare coverage until July, 2017. Mr. Harden's treating
surgeon has recommended a multi-level fusion surgery to
repair a compression fracture and the employers choice of
physician has recommended a kyphoplasty, which is a much
cheaper surgery and requires less medical case post-surgery.
Mr. Harden has agreed to the kyphoplasty rather than undergo
the fusion, if the case is settled. The proposed total settlement
amount is $300,000. If submitted to CMS, it is likely that the
fusion surgery will be included in the MSA rather than the
kyphoplasty. However, the parties are agreeable to including
in the MSA the cost of the kyphoplasty rather than the fusion.
How would you handle the settlement and MSA?
34
302
Scenario 4: Not applied for SSD; returning to
the work place; opinion of full recovery
Even though this case does not meet the criteria set forth by the Centers for Medicare
and Medicaid Services (CMS) in their July 23, 2001, July 11, 2005 and/or subsequent
memoranda to require formal Medicare approval, the parties are still taking into
consideration Medicares interest in the within settlement Pursuant to 42 CFR 411.46
and 411.47, the Medicare intermediary manual, and the Medicare carriers manual. The
parties to this settlement believe that any rights or interests Medicare may have in the
within settlement are being adequately considered and protected. Specifically, Mr.
Munsell has been working the entire time during his injury. He intends to continue
working. He has not and does not plan to file for Social Security Disability. He is only 54
years of age. Furthermore, the only injuries which the employer has accepted and paid
for are sprains and contusions of the hands, neck, low back, and left shoulder.
Furthermore, the employer has obtained a medical opinion from a neurologist, Richard
Kasdan, that Mr. Munsell has fully recovered from the sprains and contusions. Based
upon the above circumstances, it is very probable that Medicare will never be
responsible for any work related medical charges. Nevertheless, the parties have tried to
envision what medical care could be needed and have projected the sum of $1,208.00.
(Six physician visits, at $60.00 per visit; Six refills of medication, at $70.00 per
prescription; Six blood tests to monitor toxicity, at $50.00 per test; Two x-rays at $64.00
each. Total: $1,208.00.) Mr. Munsell will spend the sum of $1,208.00 before submitting
any work-related medical bills to Medicare.
35
303
Scenario 5: Nominal Settlement; Hold harmless
language; Waiver of MSP action
Even though this case does not meet the criteria set forth by the Centers for Medicare
and Medicaid Services (CMS) in their July 23, 2001, July 11, 2005 and/or subsequent
memoranda to require formal Medicare approval, the parties are still taking into
consideration Medicare's interest in the within settlement pursuant to 42 CFR 411.46
and 411.47, the Medicare intermediary manual, and the Medicare carriers manual.
The parties to this settlement believe that any rights or interests Medicare may have in
the within settlement have been adequately considered and protected given the fact this
is a denied claim and neither the employer nor the WC insurance carrier have paid any
money on this claim. Claimant is currently 53 years old. Further, Claimant has attested to
the fact that she is not currently Medicare eligible and she has not applied for Social
Security Disability benefits. As such, the claim does not require formal CMS review
and/or approval pursuant to the Medicare Secondary Payer Statute (MSP). Moreover,
Ms. DeBellis has fully recovered and this claim is being resolved for the minimal sum of
$5,000.00.
Based these facts, the parties propose that zero dollars of the total settlement will be
allocated to pay for the anticipated future Medicare covered medical expenses Ms.
DeBellis may incur for treatment of the work injury.
36
304
Scenario 5: Nominal Settlement; Hold harmless
language; Waiver of MSP action
Claimant agrees that if she becomes eligible for Medicare benefits
and she is required to set-aside or repay any portion or all of this
settlement to reasonably consider Medicare's interest under Federal
law, Claimant will be solely responsible for setting aside or repaying
such monies from her own funds.
Claimant agrees to release as part of this Agreement any rights that
she may have to bring any possible future action under the MSP
statute against Defendant/Employer and its insurer. Claimant's
release of her entitlement to bring an action under the MSP statute
shall not be construed to release any cause of action that Medicare
may have or assert against Defendant/Employer for subrogation in
the future. Further, Claimant agrees to hold harmless
Defendant/Employer for any loss of Medicare benefits that she may
sustain in the future as a result of her own negligence.
37
305
Scenario 6: Liability denied, No payments
made on claim, Medicare beneficiary
The parties to this settlement believe that any rights
or interests Medicare may have in the within
settlement have been adequately considered and
protected given the fact this is a denied claim and no
benefits have been paid to date. Based on the fact
this is a denied claim, the parties propose that zero
dollars of the total settlement will be allocated to pay
for the anticipated future Medicare covered medical
expenses Claimant may incur. However, claimant is a
Medicare beneficiary. The total settlement amount is
$22,500.
38
306
Scenario 7: Claim settled for under $25,000
Mr. Miller is Medicare eligible. However, the CMS memorandum
May 11, 2011 states that where a total workers' compensation
settlement is less than $25,000.00, it is not necessary for the parties
to request review by CMS. The instant case is being settled for
$24,500.00. The attorney fee is 20%. Mr. Miller will net $19,600.00.
Medicare's interest has been considered. A petition to reinstate Mr.
Miller to his full weekly workers compensation benefit is pending
before the workers compensation judge. If the judge rules favorably
for Mr. Miller, the value of his weekly checks would exceed
$24,500.00. As an additional consideration of the interest of
Medicare, Mr. Miller will set aside 10% of the net proceeds, or
$1,960.00, for future Medicare reimbursable expenses, and will
spend that money before submitting any work related medical
expenses to Medicare.
39
307
Rodney McColloch (GA)
Moore, Ingram, Johnson & Steele
Jeanmarie Calcagno (IL)
Bryce, Downey & Lenkov
Joseph Schneider (CA)
Stockwell, Harris, Woolverton & Helphrey
308
DISCLAIMER: Per NAMSAP guidelines, the material to be
discussed herein is that of the presenters and is in no
manner to be considered the opinion of the NAMSAP Board
or Association. In no manner should this presentation be
considered legal advice. This presentation is provided for
educational purposes only.
309
} When WC Regulations may conflict with
Medicare Secondary Payer Regulations
} CMS Guidance
} Submit or Not Submit?
} Adverse Determination Letters
} Jurisdictional Examples
310
} CMS/ Frequently Asked Questions/FAQs
} Initial May 2001 Patel Memo
} Series of Guidance Memos to clarify Initial

Memo
311
JULY 23, 2001 CMS Memorandum
Question 5: CRITERIA FOR MSA
} The following criteria should be used in
evaluating the amount of a proposed settlement
to determine whether there has been an attempt
to shift liability of medical costs to Medicare:
1) Is the amount allocated for future medical
expenses reasonable?
} CMS provides a lengthy list of items they

consider in determining whether a WCMSA is
reasonable.
312
JULY 23, 2001 CMS Memorandum
} What is the length of time required to
set-aside money for Medicare covered
expenses?
} The WCMSA should be funded based on the
expected life expectancy of the individual
unless the State law specifically limits the
length of time that WC covers work related
conditions.
313
APRIL 22, 2003 CMS Memorandum
Question 5: WHAT DECISIONS OF THE COURT WILL
CMS HONOR?
} CMS will honor a judicial decision issued after

a hearing on the merits.
} CMS will not honor a mere approval of a
settlement that incorporates the parties
settlement agreement IF it does not
adequately address Medicares interest.
314
Additional Question to Ponder
Even if the statute is clear and the facts on

point, will CMS raise an issue with the statute?
315
Georgias 400 Week Cap
} For any injuries occurring on or after July 1, 2013,
Georgia limits liability for medical benefits to 400
weeks in non-catastrophic claims.
} O.C.G.A. 34-9-200(a)(2): the employer shall, for a

maximum period of 400 weeks from the date of
injury, furnish the employee medical care.
} CAT cases are limited to specific injuries, except for

the catch all provision, O.C.G.A. 34-9-
200.1(g)(6)(A):
Any other injury of a nature and severity that prevents the
employee from being able to perform his or her work and
any work available in substantial numbers within the
national economy.
316
Options If CMS Ignores Cap
} Formal review of improperly calculated MSAs by
CMS are limited
Parties can submit for Re-Review based on obvious
mistakes or evidence not previously considered.
However, there is no formal multi-level appeal
process, as there is with conditional payments
} CMS indicated that a formal WCMSA appeal
process may be implemented later
} Thus, challenging CMS for ignoring the State
medical caps would result in expensive litigation
that could take years to resolve.
317
May 11, 2011
CMS Memorandum
Submission of a WCMSA proposal to CMS for
review and approval is a recommended process
(Voluntary!). There are no statutory or regulatory
provisions requiring that a WCMSA proposal be
submitted to CMS for review.
318
Negative Outcomes of Submitting
Despite Medicares Interest Being
Adequately Considered
} CMS ignores your 400-week cap MSA
No multi-level appeal process, so youre
stuck with what CMS says
Could be especially costly for a younger
claimant
} If CMS implemented guidelines contrary
to caps, it could cause higher MSAs for
everyone until the issue is litigated
319
Possible Scenario
Employee alleges Catastrophic claim in settlement offer.
Parties settle on disputed basis
Settlement funds in MSA capped at 400 weeks
GA Board approves
Case not Submitted/Risks?
Case submitted/Risks?
Would a judicial decision on CAT designation satisfy CMS?
320
Other Scenarios
} Employee agrees NON CAT case
} Parties Stipulate to NON CAT case
} Judicial Order ruling Non CAT
321
} Does Settlement funding beyond 400 weeks
for IND and/or MED concede case is CAT?
} Possible Implications
322
CALIFORNIA
} Medical Review Process (PTP/UR)

} Independent Medical Review (IMR) General
Requests
Impact of IMR Denials
Appeals of IMR
} Can you rely on the IMR as to future

allocations?
} Final? Binding?
323
Case Scenario
} IMR limits care sought by Applicant
} Applicant waits 12 months
} PTP writes new report expanding care/UR again?
} Employer/Carrier decide to settle, vendor/carrier
options to reduce CMS Fund
} C&R funds a split of IMR and PTP medical
324
Medicare Considerations
} Submission/How will CMS view PTP and IMR?
} What if they require funding based on PTP?
Appeal vs. Updated Allocation
} No Submission
Risk for Applicant ?
Risk for Employer/Carrier?
325
Medical Provider Network/MPN
} History of MPN
} Employer/carrier not responsible for Out of
Network Care
} Applicant treats out of MPN
} Employer /Carrier not paying
} Wifes Private Insurance paying bills
} Applicant approaching Age 65
326
C&R Proposed
} CMS Submission
} How will CMS view medical?
} No Submission
} Risk to Parties?
327
Illinois Workers Compensation Act
} Disputed conditions
} IME: Employers right to an independent medical
examination.
- Section 12 states in part, An employee entitled to receive
disability payments shall be required, if requested by the
employer, to submit himself, at the expense of the employer,
for examination to a duly qualified medical practitioner or
surgeon selected by the employer, at any time and place
reasonably convenient for the employee, either within or
without the State of Illinois, for the purpose of determining the
nature, extent and probable duration of the injury received by
the employee, and for the purpose of ascertaining the amount
of compensation which may be due the employee from time to
time for disability according to the provisions of this Act.
(Source: P.A. 94-277, eff. 7-20-05.)
328
} Weight of IME is an issue with CMS nature and extent and
open medical.
} Fee schedule Employer pays at a fee schedule or
negotiated rate, whichever is less.
Section 8(a) states in part, The employer shall provide and pay
the negotiated rate, if applicable, or the lesser of the health care
provider's actual charges or according to a fee schedule, subject
to Section 8.2, in effect at the time the service was rendered for all
the necessary first aid, medical and surgical services, and all
necessary medical, surgical and hospital services thereafter
incurred, limited, however, to that which is reasonably required to
cure or relieve from the effects of the accidental injury, even if a
health care provider sells, transfers, or otherwise assigns an
account receivable for procedures, treatments, or services covered
under this Act.
329
} Chain of Referrals
Section 8(a) states in part, Notwithstanding the foregoing, the employer's

liability to pay for such medical services selected by the employee shall be limited
to:
(1) all first aid and emergency treatment; plus
(2) all medical, surgical and hospital services provided by the physician, surgeon
or hospital initially chosen by the employee or by any other physician,
consultant, expert, institution or other provider of services recommended by said
initial service provider or any subsequent provider of medical services in the
chain of referrals from said initial service provider; plus
(3) all medical, surgical and hospital services provided by any second physician,
surgeon or hospital subsequently chosen by the employee or by any other
physician, consultant, expert, institution or other provider of services
recommended by said second service provider or any subsequent provider of
medical services in the chain of referrals from said second service provider.
Thereafter the employer shall select and pay for all necessary medical, surgical
and hospital treatment and the employee may not select a provider of medical
services at the employers expense unless the employer agrees to such selection.
At any time the employee may obtain any medical treatment he desires at his
own expense. This paragraph shall not affect the duty to pay for rehabilitation
referred to above.
330
} Utilization Review
Section 8.7 states in part, "Utilization review" means the evaluation of proposed or provided
health care services to determine the appropriateness of both the level of health care
services medically necessary and the quality of health care services provided to a patient,
including evaluation of their efficiency, efficacy, and appropriateness of treatment,
hospitalization, or office visits based on medically accepted standards. The evaluation must
be accomplished by means of a system that identifies the utilization of health care services
based on standards of care of nationally recognized peer review guidelines as well as
nationally recognized treatment guidelines and evidence-based medicine based upon
standards as provided in this Act. Utilization techniques may include prospective review,
second opinions, concurrent review, discharge planning, peer review, independent medical
examinations, and retrospective review (for purposes of this sentence, retrospective review
shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section
applies to prospective review of necessary first aid or emergency treatment. (Source: P.A.
97-18, eff. 6-28-11.)
331
} Statute of limitations outlines rules regarding
filing of actions.
Section 6(d) states in part, In any case, other than one
where the injury was caused by exposure to radiological
materials or equipment or asbestos unless the
application for compensation is filed with the
Commission within 3 years after the date of the
accident, where no compensation has been paid, or
within 2 years after the date of the last payment of
compensation, where any has been paid, whichever shall
be later, the right to file such application shall be barred.
(Source: P.A. 98-291, eff. 1-1-14; 95-316, eff. 1-1-
08.)
332
Moderator: GEORGIA
Thomas Spratt Rodney R. McColloch
NuQuest Moore, Ingram Johnson & Steele
280 Wekiva Springs Road 326 Roswell Street, Ste. 100
Longwood, FL 32779 Marietta, GA 30060
303-880-4046 770-429-1499
Email: tspratt@mynuquest.com Email: Rodney@mijs.com
ILLINOIS CALIFORNIA
Jeanmarie Calcagno Joseph Schneider
Bryce, Downey & Lenkov Stockwell, Harris, Woolverton &
Helphrey
200 N. LaSalle St., Ste. 2700
1545 River Park Drive, Suite 330
Chicago, IL 60601
Sacramento, California 95815
312-327-0017
916-246-4604
Email: jcalcagno@bdlfirm.com
Email: Joseph_Schneider@shwhlaw.com
333
334
Wcmsa re-review process
CARMEN FOLLUO, CORVEL CORPORATION
SHANNON METCALF, HEDRICK GARDNER
KINCHELOE & GAROFALO
KIM WISWELL, MEDVAL
335
Wcmsa re-review
NO FORMAL APPEALS PROCESS WHEN CMS

DETERMINES DIFFERENT AMOUNT TO ORIGINALLY
PROPOSED WCMSA AMOUNT
ALTERNATE OPTIONS:
CLAIMANT PROVIDES ADDITIONAL INFORMATION
DIRECT TO REGIONAL OFFICE TO JUSTIFY ORIGINAL
PROPOSAL AMOUNT
SUBMIT RE-REVIEW REQUEST
336
Wcmsa reference guide
section 16
AVAILABLE TO EITHER PARTY IN EITHER SITUATION:

BELIEVE CMS DETERMINATION CONTAINS OBVIOUS MISTAKES
HAVE ADDITIONAL EVIDENCE, NOT PREVIOUSLY CONSIDERED
BY CMS, WHICH IS DATED PRIOR TO THE SUBMISSION DATE OF
THE ORIGINAL PROPOSAL AND WHICH WARRANTS A CHANGE
IN CMS DETERMINATION
337
re-review submission process
Mail to:
WCMSA Proposal/ Final Settlement
PO Box 138899
Oklahoma City, OK 73113-8899
Submit through the WCMSAP
338
339
340
341
CASE STUDIES successful re-review examples
Agreed to change OxyContin to generic oxycodone pricing
Agreed to remove facility & imaging pricing added to cervical nerve block pricing
Agreed to reduce orthopedic visits from four to one per year
Agreed to remove medications added unrelated to industrial injury
Agreed to reduce frequency of visits from monthly to quarterly
Agreed to remove medications based on prior IMR decisions ignored in initial review
Agreed to remove medication based on IMR dated post-submission
Agreed to remove a medication based on an ALJ determination post-submission
342
CASE STUDIES successful re-review examples
Agreed to remove gabapentin being prescribed for unrelated condition,
shingles
Agreed to change a medication from monthly to quarterly based on dosage
Agreed to remove a dorsal spine stimulator and physician follow-up visits
Agreed to remove a hardware removal surgery that had already occurred
Agreed to remove pain pump where PTP recommended pt was not a good
candidate
Agreed to remove medication prescribed by indicted physician on suspended
license
RO agreed to add $3k to an approval due to a newly accepted body part
343
CASE STUDIES Unsuccessful re-review examples
Primary treating physician incarcerated on fraud conviction; would not
consider QME treatment recommendations without court order
denying treatment by the PTP
Would not accept re-review request from a new submitter
Would not remove extended time for office visits where physician had
routinely included CPT codes in reports
Would not accept contractual prosthetic pricing for future

replacements and actually increased the amount of one replacement
that had been forecast at a lower amount
344
CASE STUDIES Unsuccessful re-review examples
Would not remove Zofran from approval despite its being off-label
w/o justification
Would not change replacement frequency for external sound

processors from 3 to 5 years despite CMS guidelines; based on
manufacturers 3-yr warranty
Agreed to remove a surgery, however repriced remaining surgeries to

include the amount of the removed surgical procedure
Conducted a re-review requested by plaintiff attorney w/info dated

post-submission and increased approval by $300k
345
Proposed changes to re-review
FEBRUARY 11, 2014, CMS MEMO ASKING FOR

COMMENTS ON A PROPOSAL TO EXPAND THE RE-REVIEW
PROCESS
DETAILS REGARDING CMS PROPOSED CHANGES
CMS HOPES TO RELEASE GUIDELINES FOR REVISED RE-

REVIEW PROCESS BY OCTOBER 1, 2016
346
Namsap input TO cms ON re-review PROCESS
NAMSAP recommended CMS grant access to the re-review process for
the following reasons:
Significant change in the reasonably probable future medical care
Significant change in the reasonably probable future prescription medication
use
Judicial determination affecting the items included in the WCMSA
Errors by WCRC or submitter including:
Duplication of treatment or medications in the WCMSA
Misreading of records resulting in incorrect treatment or medications
Omission of required Determination Letter information, i.e. prescription spreadsheet
Use of incorrect jurisdiction
Incorrect cover letter information
NAMSAP recommended against a time restriction but stated 365 days at a minimum if applied to allow for the settlement
process to proceed
347
QUESTIONS?
348
Whats Affecting Stakeholders?
San Antonio, Texas

September 16, 2016
Douglas J. Holmes
President
UWC Strategic Services on Unemployment & Workers Compensation
349
Federal Takeover of Workers Compensation on
Multiple Fronts
Workers Compensation is under siege
Trial lawyers and worker advocates upset with state
limitations.
Progressives and allied academics and news outlets

favoring a national single payer system.
Federal programs under stress looking for ways to improve

federal trust fund solvency without cutting benefits or
increasing taxes.
350
Federal Takeover on Multiple Fronts
Medicare
Social Security
Medicaid
OSHA
ERISA
Affordable Care Act
State Single Payer Proposals Colorado
Federal Budget
Law Suit Challenges
351
Basic points of argument from the Workers Injury Law and

Advocacy Group (WILG) in its Report on the Status of Workers
Compensation released November 30, 2015.
Worker benefits under the state workers compensation system since 1972 have
been eroded by more restrictive definitions of coverage and compensability.
The restrictions are so great as to be inconsistent with the US Supreme Court
decision standard that upheld the New York WC law in 1917.
Restrictions are inconsistent with state constitutions.
Employers and states have violated the Grand Bargain.
The effect of restrictions has been to shift costs to Medicare, Medicaid, and
Social Security.
352
On October 20, 2015 Ten Democrat House and Senate Ranking
Members (including Bernie Sanders) sent a letter to Tom Perez,
Secretary of Labor.
The letter asks the US Department of Labor to assert federal

oversight over the state workers compensation programs.
Clearly there was careful coordination of messaging starting with

the NPR and ProPublica series, a WILG report, an OSHA Report, the
sign-on letter from members of Congress and a John Burton
proposal to reduce SSDI costs by increasing coverage and
compensability in state workers compensation plans.
Starting point for political advocacy in the Fall of 2016 and policy in
the next administration and congress in 2017.
353
Threat of Increasing Medicare Overreaching
Imposition of federal standards for all WC payments and

settlements involving potential medical expense (e.g. apply
MSP to all individuals).
Apply HIPAA confidentiality restrictions to health information
(notwithstanding confidentiality needs for WC)
Expansion to national Single Payer system with subrogation to
benefit federal programs over state workers compensation.
354
Medicaid
Increasing number of individuals receiving Medicaid also

covered for WC.
States beginning to administer state based Medicaid with
secondary payer requirements.
Budget agreement in 2013 expanded subrogation to include
any payment from a third party that has a legal liability to pay
for care and services, including workers compensation.
355
Medicaid
Effective date of budget agreement expansion, October 1,
2014 was pushed to October 1, 2016 by HR 4302 and to
October 1, 2017 by HR 2.
Trial lawyers and others continue to argue for repeal of the
effective date as the statutory language expanded subrogation
of settlement dollars to Medicaid.
Increased federal and state budget concerns pressing Medicaid
to reduce net costs, and states becoming more aggressive in
requiring subrogation.
The issue will continue to grow with the increasing Medicaid
case load, the increasing chance that Medicaid recipients will
be in the workforce, and state and federal budget pressures.
356
Social Security
John Burton Proposal to
Enact federal standards for workers compensation programs
Create Social Security Secondary Payer set aside arrangement procedure for cash
payments similar to Medicare Secondary Payer provisions and process
Establish firm level experience rating for SSDI to reduce cost shifting from workers
compensation if costs shifted the employer FICA cost would increase
Eliminate the reverse offset in 15 states.
The Burton proposal is included on the list of potential solvency measures in the SSDI
Solutions Initiative from the well respected Committee for a Responsible Federal Budget.
It is a creative way to seek support from federal officials seeking to improve SSDI solvency
without increasing taxes or cutting SSDI benefits.
So far, no traction for Burton proposal because 1) it was released after SSDI solvency measures
were recently enacted; 2) UWC and others opposed it; 3) it would impose increased costs on
employers; 4) the current House majority does not favor federal standards over state based
programs.
Changes in the majority in the House and/or Senate could result in this being taken seriously.
357
Social Security
Obama FY 2017 Budget proposal
Required reporting of workers compensation information from states

and private insurers to correctly offset and reduce SSDI payments.
Require monthly wage reporting instead of annual to enhance tax

administration and improve SSI program integrity.
Cross-matching Office of Workers Compensation Program records with

Social Security to reduce improper payments in FECA, Black Lung and
EEOICPA.
358
Social Security
SSA ongoing proposals

Change in SSDI/WC offset percentage.
SSA implementation of Bipartisan Budget Act of 2015
Exclusion of certain medical sources of evidence.
Stronger penalties for fraud.
Effective 11/2/2016 authorizes SSA to obtain data on beneficiary
earnings from payroll providers and other commercial sources of
earnings data through a data exchange. This would exempt individuals
from reporting their own earnings. Regulations should be published
soon to address specifics.
Requires medical review for SSDI with SSA making reasonable effort to
ensure that a qualified medical professional provides the review.
359
OSHA
OSHA updated its recordkeeping rule to expand the list of severe injuries
As of January 1, 2015, all employers must report:
1. All work-related fatalities within 8 hours
2. All work-related in-patient hospitalizations, all amputations and all losses of an eye within 24 hours.
OSHA views its role as federal oversight that includes systematic access to hospitalization data from state
workers compensation programs. OSHA report released in March 2015 was designed to demonstrate
inadequacy of workers compensation and cost shifts to federal programs.
Current OSHA assumes that there is under reporting due to safety incentive programs and employers
discouraging reports because of workers compensation liability and compensability.
Focus groups at National Institute for Occupational Safety and Health (NIOSH) indicated a desire to
Increase OSHA reporting to include initial statements in WC claims
Crossmatch WC claims with OSHA report to identify injuries that should have been reported
Plan for Continued Analysis of Existing Rules and Expanded Authority.
Legislative authority for the National Commission on State Workmens Compensation was enacted through
OSHA in 1970 and would likely be pursued again through OSHA.
360
Affordable Care Act
Potential inclusion of state WC health records as part of

national health information data base.
Potential loss of WC exclusion from HIPAA.
Subrogation issues to shift cost from ACA health insurance

plans to workers compensation.
Health care providers more likely to serve customers with fee

for service plans and higher payments for providers. (WCRI
research)
361
ERISA
Opt Out debate has raised the profile of ERISA as an

alternative to WC plans.
Trial lawyers have suggested that ERISA might be amended to

preempt states from using ERISA plans to meet state workers
compensation obligations.
Expanded use of ERISA plans may prompt the Administration

and/or Congress to increase oversight of coverage and
compensability to assure adequacy.
362
Federal Budget
Medicare, Social Security, and Medicaid suffer from projected

federal and state budget shortfalls.
Congress seeking methods to reduce spending and/or increase
revenue to address budget shortfalls.
Also, Congress is searching for pay fors for priority
discretionary spending.
Shifting costs from federal programs to state workers
compensation is easier politically than increasing taxes or
premiums or cutting coverage or benefits.
363
Single State Payer Proposals - Colorado
Colorado Amendment 69 would create single payer system

that would replace the medical part of state WC with new
state payroll tax funded health insurance program.
Terms of the program incorporate ACA minimum coverage in
the state plan.
Leaves wage replacement part of state WC disconnecting
injured workers from rehabilitation and return to work.
On the Colorado ballot in November.
364
Law Suit Challenges and Federal Legislation
US Supreme Court decision in New York Central Railroad v.

White (1917) permitted exclusive remedy if benefit amounts
were reasonable, according to reasonable definite scale, by
way of compensation for the loss of earning power incurred in
the common enterprise.
Florida case of Padgett v. State of Florida cited New York
Central case, John Burton and challenged constitutionality of
Florida exclusive remedy provisions in light of recent
restrictions in compensation.
Similar arguments being made in other states in challenging
limitations on compensability.
365
MSA Reform Legislation Pushes Back
HR 2649 and S 1514
Bi-partisan with support from committees with jurisdiction
(Reichert/Thompson and Portman/Nelson).
Pushes back on Medicare overreach in defining Medicares
interest in future medical in WC settlements.
Requires application of state WC law in determining future
medical amounts in settlement.
Establishes timeframe for CMS to make determinations
submission of set-aside optional.
Direct payment of set-aside amount optional.
Permits pro-rata allocation of settlement proceeds.
Provides administrative appeal.
366
The Challenge of the Federal Takeover in 2017
The multi-pronged campaign for the federal takeover has been successful
in shaping the public debate and calling for federal intervention through
Investigative reporting by NPR and ProPublica
Research to show cost shifting from state WC to taxpayers and the federal
budget by John Burton
Broad support for federal oversight from democrat congressional leaders
Policy support from OSHA based on the costs of health and safety
Federal and state based legal analysis and suits by WILG to set the stage for
further litigation.
But for the current majority in the House and Senate and opposition to a
federal takeover from the business community significant new federal
legislation to set federal standards for state workers compensation would
have been likely.
The results of the 2016 election will have a profound impact on the
direction of workers compensation and whether it survives in its current
form or is significantly modified moving forward.
367
What does this mean for NAMSAP
The relationship between workers compensation, federal programs,
private liability and disability plans, and other programs will
continue to increase in complexity.
The need for specialized business services will continue to grow for
the foreseeable future.
New federal efforts to establish federal standards and federal
preemption will meet with significant opposition from the business
community
The risk of litigation will increase with uncertainty as to the
application of law and priority between programs and policies.
The role of MSA professionals will continue to expand into other
areas of conflict between federal and state disability and health
care.
The results of the 2016 election will have a significant impact on the
pace of change.
368

2016 Namsap Handout

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Dear Attendees:

On behalf of the Board of Directors, committee leadership

Gary Patureau, CMSP, CWCP Michelle A. Allan, Esq.

The ALAMOLLOCATION NAMSAP 2016

Immediate Past President

San Antonio Secretary

The desire to provide for the future needs of

Because Life Goes On

Offices Nationwide www.epssg.com

The ALAMOLLOCATION NAMSAP 2016

Workers Compensation Medicare Set-Asides

Speak to one of our Medicare attorneys at 412-995-3000.

9:00 - 10:00 AM MSP 101:

10:00 - 11:00 AM Anatomy of the WCMSA

Dissecting the most frequently used parts from the

11:00 - 12:00 PM WWCMSD:

1:00 - 1:15 PM Conference Welcome & 3:00 - 4:00 PM Divided We Stand

1:15 - 2:30 PM @#Allocating.com - Hon. Lee Yeakel

2:30 - 3:00 PM Break with Katie Fox,

The ALAMOLLOCATION NAMSAP 2016

Riverwalk Scavenger Hunt

Teams will meet in Salons E & F at the hotel before getting

Get your burning questions

7:00 - 8:00 AM Breakfast with Break with

The Current State of

Deborah Robinson Stewart, David R. Cherry,

Melissa Woitalewicz Roy A. Franco,

Kim Young, Thomas F. Spratt,

The ALAMOLLOCATION NAMSAP 2016

John V. Cattie, Jr, Joy Brewer,

Jennifer Jordan, James R. Raines,

Melinda R. Petit, Vincent J. Quatrini, Jr.,

2:30 - 3:00 PM Break with

The ALAMOLLOCATION NAMSAP 2016

7:15- 8:00 AM Breakfast with Whats Affecting

The American Association of Nurse Life Care Planners, AANLCP

Our clients arent just clientstheyre our partners in busi-

EPS Settlements Group is the nations preeminent structured settlements

Franco Signor, LLC is passionate about the Liability and

The ALAMOLLOCATION NAMSAP 2016

The International Commission of Health Care

KP Underwriting, LLC provides rated ages with a quick turn-around

Louisiana Association of Self-Insured Employers (LASIE) was formed

For over 13 years, MEDVAL has been defining a higher

ODG/Work Loss Data Institute (WLDI) is the evidence-based

Tower MSA Partners provides Medicare Secondary Payer compli-

The ALAMOLLOCATION NAMSAP 2016

Leslie Schumacher Douglas L. Shaw

The ALAMOLLOCATION NAMSAP 2016

IARP is the premier global association for

Learn how IARP can help you grow and prosper as

For more information

visit the ICHCC website at www.ichcc.org

The ALAMOLLOCATION NAMSAP 2016

Medicare is a federal health insurance program which is

Overall policy-making responsibility is centralized in CMS'

Disabled under SSDI and after 24

End-Stage Renal Disease/ALS

Most people receive Part A premium free

In Original Medicare you pay

Health plan options approved by Medicare

Still in Medicare with all rights and protections

Medicare Advantage Plans include

Must still pay Part B premium