April 13, 2011

Pending
Medicare
Reform

By: Kevin L. Connors, Esquire

As all of you are no doubt all too keenly aware, Medicare, which we have described in prior newsletters as the “Elephant in the Room”, has managed, through shifting pronouncements and procedures, to seed compensation settlements with uncertainty, claiming illegal cost-shifting insurer artifice, while undermining the validity and finality of claims resolutions.

And no less true, the bureaucratic hierarchies established to fuel this monopolistic claim chaos has resulted in staggering inefficiencies that only government agencies can aspire to achieve.

Having crippled the compensation system in almost every jurisdiction allowing settlements, Medicare is even now ensnaring civil litigants with its infallible and all-reaching tentacles in a recovery net of unspeakable arrogance.

Celebrating our collective 10th year of Medicare madness and mayhem, the United States Congress is now being asked to consider amending/reforming the Medicare Secondary Payer Act, in order to provide all of us with “clear, predictable and consistent procedures for the submission, uniformed determination, and timely approval of third party medical set aside settlement proposals (“MSASP”) submitted to the Centers for Medicare and Medicaid Services (“CMS”).

If ever there was a need, it is to reform the MSPA, so that all of us, to include Claimants/Plaintiffs, medical care providers, third party litigants, insurers and third party administrators, and counsel, irrespective of their orientation, are allowed to follow simple rules establishing a level playing field for all to hurl their MSA Frisbees.

It is with this referendum in mind, that we break wind, with apologies to Martin Luther, to advise that the American Bar Association, in particular its Tort Trial and Insurance Practice Section, has been instrumental in preparing a resolution, on behalf of the ABA, for submission to Congress, urging Congress to amend the MSPA, with the following goals being incorporated as guiding principles:

• Specific statutory and regulatory requirements for determining MSA payments, as well as the process for approving settlements involving claims subject to the MSPA;
• Specific exemption from CMS review of all settlements that contain no legal obligation to pay medical benefits;
• Establishing an appeal process requiring CMS to conclude the review of a payments of proceeds within sixty (60) days of it being requested;
• Establishing a prohibition barring CMS from seeking additional monies from settlement proceeds that have involved a review or appeal favorable to the settling party;
• Bar CMS from establishing recovery thresholds dependent upon pre-determined economic indices;
• Establish a bright line statute of limitations for MSP claims;
• Require CMS to provide written notification of its acceptance of a proposed MSASP within thirty (30) days of its submission;
• Require CMS to implement “timely” notification of claim receipt, meaning within sixty (60) days of a detailed list of all payments that Medicare has made, or that might likely trigger the necessity for a set aside, with Medicare being barred from recovery, for failure to detail payments obligating repayment;
• Prohibit utilization of social security numbers in the MSASP reporting process; and,
• Establish statutory and regulatory requirements and standards for the erection of set aside trusts.

The above-outlined recommendations are being urged by the ABA to correct and refine legislation necessary to insure fairness for all MSPA stakeholders.

On behalf of our clients, we support and endorse the ABA’s efforts to seek corrective legislation, aimed at making an all-too-fallible system into a more humane and efficient recovery-seeking.

Questions

Questions concerning casualty litigation practice and procedures, can be directed to our general litigation department attorneys. Questions concerning issues with regard to workers’ compensation litigation, can be directed to our workers’ compensation attorneys.

ConnorsLaw LLP

Our casualty litigation practice group routinely defends litigation for self-insureds, third-party administrators, and insurance carriers throughout Southeastern and Eastern Pennsylvania, appearing in state and federal civil courtrooms in Philadelphia, as well as in the surrounding counties of Bucks, Montgomery, Delaware, Chester, Lancaster, Berks, Lehigh, Northampton, and Schuylkill.

Any clients or contacts seeking information about our workers’ compensation practice group, kindly contact Kevin Connors at 610-524-2100 Ext. 112, or at kconnors@connorslawllp.com, and kindly consider asking us to provide you with a practical update on the latest trends and developments in Pennsylvania Workers’ Compensation practice and procedure.

As the Pennsylvania representative of the National Workers’ Compensation Defense Network, we encourage you to contact our workers’ compensation defense attorneys to discuss the significance of this legislation, its potential impact on your workers’ compensation defense practice, as well as to offer any other feedback or insight that you might wish to share with us, concerning your experience in handling workers’ compensation claims; our workers’ compensation defense attorneys remain always available to answer any questions that you might have about workers’ compensation practice and procedure, as well as to provide you with our own professional experiences have been in defending thousands of workers’ compensation claims.

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