Interesting call

Medicare Set-Aside Blog on December 7, 2009
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We received a call today from the claimant in New Jersey that has a settlement hearing tomorrow. After going through the usual “are you represented” and “who is the insurer/tpa” questions to avoid stepping on any toes, he launched into the saga that is his workers’ comp claim.


The long and short of it is that he has a CMS approval letter from 2007 approving $18,000 for the MSA. However, he is currently taking $15,000 PER MONTH in Medicare covered Rx which according to him is the full responsibility of his prior employer and the TPA.


The TPA is representing that the 18k MSA that was approved more than two years ago fully protects Medicare’s interest under the theory that MSA approvals never expire. The claimant is very hesitant to settle his case because he will spend the 18k in exactly 40 days instead of the 18.9 years it is projected to last. He wisely concluded that even if Medicare was to pay his claim under Part D, there would be substantial out of pocket funds required to fill his Rx going forward. (of course his settlement may be for 2MM and that isn’t an issue. Not enough information to draw a conclusion here).


So the question is, did the TPA adequately protect Medicare’s interest by relying on a two year old MSA that was approved by CMS or do they have a duty to add additional funds to the MSA since they have knowledge that the amount is completely inadequate? What liability does the employer, TPA and claimant have under this scenario?


What would you do if you were the adjuster, attorney or TPA? Comments welcomed.



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