Happy 10TH Anniversary WCMSA Review Program

Medicare Set-Aside Blog on July 22, 2011
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Wow, has it really been ten years since Parashar Patel, the Deputy Director of the Purchasing Policy Group for the Center for Medicare Management rocked the P&C world with his infamous interoffice memo??? Feeling a little nostalgic over this momentous event, I was compelled to go back and reread that fine piece of prose and would like to share with you some of my favorite statements:

 “Regional Office staff may choose to consult with the Regional Office’s Office of the General Counsel (OGC) on WC cases because these cases may entail many legal questions.” [or you can just assume that all WC claims are fully compensable, that there are no defenses to that compensability, that all claimants are completely trustworthy and that all of their treating physicians are above reproach.]

“Set-aside arrangements are used in WC commutation cases, where an injured individual is disabled by the event for which WC is making payment, but the individual will not become entitled to Medicare until some time after the WC settlement is made.” [If disabled by the WC event, what’s the delay in Medicare entitlement? You don’t possibly think that individuals so egregiously injured at work wait to apply for SSDI until after they settle their WC claims, or are you inferring that they don’t apply at all and that it will be some time until they turn 65???]

“Set-aside arrangements are most often used in those cases in which the beneficiary is comparatively young and has an impairment that seriously restricts his or her daily living activity.” [So then why do the vast majority of MSAs end up being for a comparatively older group with strain injuries resulting from fairly innocuous events allegedly requiring a lifetime of palliative care similar to the ordinary aches and pains of the elderly???]

“These questions have been raised by attorneys who wish to devise set-aside arrangements, which represent amounts for medical items, and services that would ordinarily be covered by Medicare and are specified for future medical treatment for work-related illness or injuries.” [Who were these attorneys anyway when the entire P&C world acted like it was blindsided by some “new law”? Are Bob Sagrillo and Susan Haines completely responsible for this mess?]

“Medicare payment may not be made to the extent of Medicare’s interests in the lump sum payment per 42 CFR 411.46 or a set-aside arrangement that adequately considers Medicare’s interests in the lump sum payment.” [Is that an OR I see in there? He couldn’t be implying that an allocation for future medical not made in an approved WCMSA could be effective too???]

“Injured individuals who are already Medicare beneficiaries must always consider Medicare’s interests prior to settling their WC claim regardless of whether or not the total settlement amount exceeds $250,000.”  [There’s the infamous MUST always consider Medicare’s interests that everyone is always looking for in the statute and regs.]

“Provision should also be made in the settlement agreement to provide for a mechanism so that items or services that were not covered by Medicare at the time, but later become covered, are transferred from the commutation specified for non-Medicare covered items and services to the set- aside arrangement.”  [What’s more ludicrous: MSPRC monitoring for anything other than the approved amount to be exhausted or claimants voluntarily adding to their MSA?]  

“When a set-aside arrangement’s settlement agreement contains specific provisions establishing that the WC carrier will ensure that the arrangement cannot be charged more than what would normally be payable under the WC plan, and when the RO reviews and approves the sufficiency of the arrangement based on the WC plan’s WC fee schedules, then, providers, physicians and other suppliers will be paid based on what would normally be payable under the WC plan.” [Because carriers have that kind of magical power over the private sector??? But hey wait, doesn’t Medicare have an entire network of contracted medical providers it could tell what to charge from MSAs???]

These anniversary wishes really belong to those of us who have been around since the beginning as we should be celebrating our sanity(which is probably severely in question). Have a drink this weekend in honor of Mr. Patel and toast the next decade which will hopefully include some much needed MSP reform.