MSA Vendor v. Attorney – Round One

Medicare Set-Aside Blog on March 3, 2010
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Yesterday, a question was posed on the NAMSAP listserv inquiring as to whether RN licensure was necessary to prepare Medicare Set-Aside Arrangements in a given jurisdiction. While most of us were content to ignore this rather uninformed question, the President of the nations largest MSA vendor felt the need to weigh in as follows:



“CMS has absolutely no requirements with respect to who prepares an allocation.  Anyone can sit down, write a report, and submit it to CMS.  Doesn’t mean it is right, will get approved, or even remotely addresses the needs of the elderly and disabled person in question.  It is highly improbable that the allocation properly addresses any of the medical, pharmaceutical, legal, coding issues, and claims facts specific to the case.  You can be certain that the allocation is either way high or way low, totally indefensible and inaccurate based on the claim. We see this all the time when we take over a submitted case from some firm who had their paralegal work up the MSA projection.  The insurer spends about $4000-$7000 in hourly attorney fees (depending on how long they’ve been working it with CMS) to get a CMS rejection that the firm can’t defend or change and now the settlement is in jeopardy of falling apart.


In the end when adjusters choose unqualified and inexperienced individuals to prepare their allocations, they open themselves to serious ramifications in the settlement process.  They risk blowing the entire settlement when it doesn’t work out as expected with the CMS determination and the funding isn’t there to consummate settlement or the allocation is to high to permit a settlement discussion at all.  Insurers have been and continue to do their diligence on potential MSA vendors.  Unfortunately several firms are hiding these costs in the legal fees to get around insurer vendor panels and many adjusters ignore these panels to pass business along to a friend or colleague.  Thankfully with Mandatory Insurer Reporting, every settlement with a Medicare beneficiary will be known by management and these off-panel practices will be obvious in the future.


To answer the question, CMS has no standard so the insurance industry must establish them and monitor that they are being met”.


Ouch….Looks like he just called out every attorney firm that prepares MSAs as part of their practice. To which one of the NAMSAP member attorneys responded


“It is interesting bc from a lawyer’s  perspective, I am always concerned with and seeing indefensible and inaccurate MSAs from non-attorney “vendors,” who advertise $2500 MSA’s but once all that needs to be done for Medicare compliance on a particular file is completed, it ends up costing $7500 or more.  Or, on the other hand, those “other matters” (which are crucial) like conditional payment inquiries or “lien” negotiations (which necessarily must involve legal arguments and legal opinions), just never get addressed, which is even worse…”  


So who is right in this war of words? Well our vendor should consider that it was his company’s billing practices, questionable work product and indifferent service that spawned so many competitors. After all, you can’t install your disbarred lawyer family member as your “director of compliance” and be taken seriously by anyone (technically he volunarily surrendered his license). Their only hope of continued survival is to cling to insurance panels and hope that their tying of MMSEA reporting to MSA referrals stems the outflow of clients looking for a better, cheaper and more competent solution.


One the other hand, he is right that many of the companies that have hung a shingle in the last several years are grossly incompetent and learning on their client’s nickel (one needs only to look at 80% of the questions posted on the NAMSAP listserv for confirmation of this fact). Getting an MSA completed, submitted to CMS and conditional payments resolved should probably cost somewhere between $2,000 and $3,000 for most cases if handled by a competent firm. Paying a defense lawyer $350 per hour to learn on the job (who will probably get it wrong in the end) is a pretty poor strategy. And I have seen adjusters circumvent their approved panels to direct business to friends just as our vendor friend suggests. Considering the high stakes involved in getting the MSA process wrong, this practice is indefensible.  


That being said, there is a place for all types of providers in the industry. It really depends on the specific clients needs as to who should be used. I do not think a one size fits all model works in every situation. The assembly line approach works for the big-box companies serving big-box insurers. The sole practioner (whether a nurse or attorney) is a good fit for smaller clients that want a more personalized, claim/jurisdiction specific solution. Generally this comes with a more hands on relationship that flourishes in a lower volume environment. Companies of our size can service larger accounts but still maintain the personal nature of the business and focus on individual case results. So if you have an extra 5,000 cases you need MSAs prepared for this year, go to a big-box company. If you have 1,000 or less come to MEDVAL. If you have 50 or 5, call a smaller regional company or sole practioner.


The only constant regardless of who you use is to look for competent people with sufficient experience. There really is no substitute in this business for seeing a lot of cases consistently. Avoid the “we do everything” vendors that moonlight in MSAs or think that just because they have an MSCC they are qualified to handle claims. Price, as noted above, constitutes the appropriate range of what the market should be paying right now. If you are buying your MSAs from a low cost vendor, you are most certainly getting what you pay for. If buying from someone priced higher, you are paying for someone to bring donuts by the office and a private equity firm’s ROI and not any additional level of skill or expertise.


Using the above criteria, it is possible to find that right fit and have strong win/win relationship over the long term.