Mark Walls, VP Communications and Strategic Analysis at Safety National, moderated a panel discussing emerging issues in Medicare Secondary Payer (MSP) Compliance. The panelists were Kip Daniels of Nuquest/Bridgepoint, Roy Franco of Franco Signor, and Jennifer Jordan of Medval. The panel focused on three significant emerging issues:
First, there is an attorney in California who is circulating a memo to employers in which he indicated that the current methods of funding MSAs for settlement is flawed. In this memo, he advocates settlement of claims by C&R with a stipulation that there is no injury. By doing this, he feels funding for a MSA can be avoided. The panel took significant issue with this opinion. They pointed out that under the Section 111 reporting Medicare would be alerted to the pending claim and that if a MSA was not funded the injured worker would end up in a situation where their Medicare benefits are denied. While this strategy may work for a short period of time, eventually it will result in increased litigation as injured workers realize their entitlement to Medicare benefits has been jeopardized.
Second, there are people who are advocating purchasing an insurance policy for injured workers through the ACA exchanges instead of funding a MSA. Currently, most policies issued through the exchanges do not have exclusions for occupational injuries. Once again, the panel cautioned that this is not a long-term solutions. If employers are intentionally shifting their workers comp liabilities to the carriers providing ACA coverage, it is just a matter of time before the carriers figure this out and add exclusions for occupational injuries.
Finally, there is a recent development that is causing significant concern to the industry. There is a small but very effective group of law firms that specialize in filing Federal whistleblower lawsuits alleging abuse of government funds. These suits have been around since the Reagan administration amended the laws to allow such suits. They do not need to be a direct party to the action. All these law firms have to do is file the suit alleging improper use of government funds. If the suit is successful, the law firm gets a share of any award. In the past, these suits have been directed at defense contractors and medical providers. We are now seeing these suits directed at workers compensation payers such as carriers and large employers. The allegation of these suits is that the employer/carrier did not properly protect the interests of CMS as required by law. Thus far, nothing has materialized from these suits but it is something that payers need to be very aware of. It is more important than ever that you be conducting audits on your MSP Compliance procedures to ensure there are no gaps that could allow the allegations in these whistleblower lawsuits to take hold.
The conclusion of the panel is that the area of MSP compliance is constantly evolving. There are not a lot of black and white issues, but instead this area deals with many shades of gray. There are different ways to interpret these regulations that all have some merit. Payers need to be extremely diligent in monitoring their MSP compliance to ensure they keep up with the evolution of this process.