IAIABC 2009 All Committee Conference

Medicare Set-Aside Blog on April 23, 2009
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Today kicked off the IAIABC 2009 All
Committee Conference in Baltimore,
Maryland. This afternoon’s agenda
was titled “CMS and Workers’ Compensation Forum” with a generous 1 hour 15
minute session devoted to WCMSAs and conditional payment recovery, while a 1
hour 45 minute session was devoted to Section 111 reporting. Presenting for CMS
were primarily Frank Johnson, who you may recognize as the questions guy from
the April 3, 2009 AWP memo, and Barbara
Wright from the many MMSEA teleconferences.


As for WCMSAs, it was clear that in light of the recent AWP
proclamation that attendees were optimistically looking for a forum for
discussion of the same. What we received instead was a rudimentary WCMSA lesson
presented by Mr. Johnson followed by discussion of some interesting problems
the process has caused in Michigan and New Jersey, leaving us
with enough time for exactly two questions, the first of which was wasted on a
MMSEA question deferred to the following session.


The second question was the one everyone’s been waiting for
CMS to answer: how does CMS justify forcing insurers to pay more in a
settlement utilizing AWP for future Rx than they are responsible for under
state law or that claimants even need postsettlement? The answer was
essentially that AWP is the only way they can be “on the same page” as those submitting
WCMSAs for review. Also whenever they could fit it in, we received a subtle
reminder that federal law supersedes state law. Again the issue was not
addressed and all attempts at clarifying the question were thwarted as they
ended the session for a beverage break.


Although we did not get the answers we were hoping for, one
thing that was interesting was that CMS’ tone with regard to its review process
has changed significantly. An entire page of Mr. Johnson’s presentation was
dedicated to pointing out the fact that the CMS review process is totally
voluntary. It is not mandated in or governed by any federal law and if required
by the state workers’ compensation agency, that has nothing to do with CMS. In
the past, that message was always don’t seek our approval to your detriment. It
almost appears as if they are discouraging our use of their review process and
that we should expect to fund more than needed for MSP compliance if we want
the alleged assurances provided in the CMS approval letter. 


As for MMSEA issues, nothing new or informative was
discussed. Although an email was sent out prior to the event notifying
participants that they should be familiar with the issues, implying that stupid
questions would not be entertained, the questions were very basic. Or they were
too complicated for CMS to answer, with the stock response being to send emails
to them with those particular situation so they can better understand how the
insurance industry works. Interesting that because the MMSEA is law that CMS is
interested in understanding how the law applies to the unilateral policies they
dictated, however our efforts over the past 8 years to provide them with
information about applications of insurance, contract, and workers’
compensation law to WCMSAs have fallen on deaf ears. Must be that the voluntary
process is not subject to any of those limitations.


We recognized many MSA industry participants at the meeting.
Fortunately, we only had to drive 20 minutes to attend while they flew in from
all over the country. Knowing what we know now, that 20 minute drive could have
been put to more productive use than sitting through an MSA 101 presentation
and having CMS decide a cold soda was more important than getting feedback from
industry experts and stakeholders. In their defense, the Marriott did put out
an excellent assortment of beverages.


Grade for latest CMS outreach effort : D- (They would have
gotten an F but for Mr. Johnson reminding everyone that the review process is
voluntary… That is a point we hope becomes more and more accepted by the




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