August 19, 2025 • 42 mins
Mandatory MSA Reporting with Jim Anderson
Shane Dawson of Dinsmore and Shohl, LLP and Jennifer White of Peterson White, LLP interview Jim Anderson, a Partner with Cattie & Gonzalez, PLLC. In this episode we chat about the key changes CMS implemented in April 2025 regarding mandatory Medicare Set-Aside (MSA) reporting. Jim shares tips for workers' compensation defense practitioners to proactively prepare for mediations and settlements to assist their clients through the pitfalls and hurdles in protecting CMS's interests.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
Shane Dawson of Dinsmore and Shohl, LLP and Jennifer White of Peterson White, LLP interview Jim Anderson, a Partner with Cattie & Gonzalez, PLLC. In this episode we chat about the key changes CMS implemented in April 2025 regarding mandatory Medicare Set-Aside (MSA) reporting. Jim shares tips for workers' compensation defense practitioners to proactively prepare for mediations and settlements to assist their clients through the pitfalls and hurdles in protecting CMS's interests.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:18):
Welcome back to another episode of the comp Conversations podcast,
a podcast developed through DRI where we discuss the world
of workers' compensation, exploring issues involving occupational injuries, treatment, claims, management, litigation,
as well as future trends and emerging issues in this
area of law. My name is Jennifer White, and I'm
(00:38):
here with Shane Dawson, a partner at Densmore and sholl And, Ohio.
We are delighted to have Jim Anderson, a partner with
Caddie and Gonzalez, with us on today's podcast to talk
about mandatory MSA reporting and how that affects workers practitioners.
Jim is a partner at caddy in Gazalz in Austin, Texas,
a nationally recognized law firm and the Medicare Secondary payer space.
(01:03):
The decades of experience in workers' compensation law, he is
a frequent lecturer on MSA reporting and compliance and has
played a key role in shaping national conversations on MSP enforcement.
Mister Anderson has admitted to practice law in Texas and
Mississippi and before the US Supreme Court. Jim, welcome to
Calm Conversations.
Speaker 2 (01:24):
Well, thanks very much, I'm delighted to be here. It's
good to be with my friends today in this fashion.
Speaker 3 (01:32):
Jim, before we launch into the details of all of this,
can you just kind of explain, in a very broad sense,
with some of the key changes the CMS implemented this
past April of twenty twenty five regarding mandatory Medicare sets
(01:56):
cyber reporting.
Speaker 2 (01:58):
Absolutely, just to give you a little bit of background
that to put it all in perspective, the Medicare secondary
payer law has three distinct components, one of which is
mandatory ensure reporting. They want those who are handling the
claims to let Medicare know that they have a claim
(02:21):
involving a Medicare beneficiary. That's a key phrase. Too many
people think that every claim is involved. It's every claim
involving a Medicare beneficiary. And so what Medicare discovered is
that the number of msas being submitted to them for
consideration and approval is declining over the last five years.
(02:45):
With the statistics that they publish themselves, and the numbers
that are being submitted for approval are declining, and Medicare's
response has been a requested increase in the submitted number
twenty to twenty two percent over the past couple of years,
and I think that they realized that since the Medicare
(03:08):
approval process is entirely voluntary, there is no situation when
an MSA has to be submitted, but it is highly recommended.
Since they were getting fewer and fewer msas, we think
that they said, well, this would be a way to
do it. Just every claim involving a settlement involving the
(03:28):
Medicare beneficiary where the claim settles for more than seven
hundred and fifty dollars has to be reported. So we
know that there's an MSA out there. It's not one
that they're proving, but we know that there's an MSA
out there, and that's what that is really all about.
There are seven new codes to fill in on the
(03:50):
reporting that has to be done on those claims. They
want to know the total MSA amount if TEAPOK has
been reported. TEAPOT means a total payment robligational claim, which
is a settlement. That's just what CMS calls it. So
if you settle for more than seven hundred and fifty dollars,
how much is the MSA out of that settlement. They
(04:12):
next want to know whether it's going to be in
a lump sum or whether it's going to be structured
with you know, pay some money up front and then
replenish the account on an annual basis thereafter. And so
if it's a lump subtle mouth, then they want to
know that number. If they it's a structure, they want
(04:33):
to know how long it's going to last, how much
your initial deposit is going to be, and how much
the recurring annual deposit is going to be. Excuse me,
it's going to be on those And in addition, there
are a couple of optional codes to fill in. If
there was a workers copy MSA previously reviewed and approved
(04:57):
by CMS, they want the case control that goes with
that to be listed there. And if it's one that
is professionally administered, they want the tax idea of the
professional administrator to be listed. Those two pieces there are optional,
but it is part of the new changes that they
have that they have come up with for reporting processes.
Speaker 3 (05:24):
So you mentioned just now about this threshold of seven
hundred and fifty dollars that if it's if it's a
beneficiary and if the settlement is over seven fifty that
it has to be reported So does this change any
of those CMS review thresholds that I think we've all
(05:47):
heard over the years of different different seminars.
Speaker 2 (05:52):
Absolutely not. Doesn't have a blessed thing to do with those.
Remember that the whole SAY process is a voluntary process,
and in order for them to be able to manage this,
they just set up some guidelines for everybody to follow,
(06:14):
so you know, when they expect one to be sent in.
If the claimant is a Medicare beneficiary and the settlement
is more than twenty five thousand dollars, they will consider those.
If there's a reasonable expectation at the time of settlement
(06:37):
that the claimant will be a Medicare beneficiary within the
next thirty months and the settlement is more than two
hundred and fifty thousand dollars, CMS will consider those as well.
So these again are just workload thresholds. This reporting of
msas is completely different, something new that is going to
(06:58):
change the face I think of the Medicare compliance industry.
It's just they're going to know that they're out there
and people will be answering questions.
Speaker 3 (07:08):
Okay, so those of us that have kind of committed
some of these numbers that you just mentioned the twenty
five thousand, the two hundred and fifty thousand. If you
know there's an expectation within thirty months, we're still good
retaining that information in our brains.
Speaker 2 (07:23):
Right, absolutely, and I recommend that you follow with it.
I do know that more and more carriers out there
are deciding that since it'sive volunteer process, they're not going
to send them in for consideration, and candidly that's going
to have other replicasions repercussions down the road. I think
(07:44):
that's one of the reasons. I think that they came
up with this new reporting process. They know that there's
an MSA in there. Now. One of the questions we
haven't addressed is how you figure out what that MSA is.
Speaker 3 (07:57):
Now.
Speaker 2 (07:58):
In my practice, I never saw a settlement of seven
hundred and fifty dollars on a workers compensation case. We
couldn't get it approved by our regulatory authority even if
we had decided to get one done for seven hundred
and fifty dollars. So that artificial number there doesn't make
a lot of sense, but it kind of lays out
what their expectations are. So how do you come up
(08:21):
with that number when you're settling case for five thousand dollars,
it ends up most of the time being a number
that's just pulled out of the air, Although there are
resources out there where groups can come up with a
number to put in there under the circumstances of that case,
(08:45):
that is not approved by seeing that. But it's a
more realistic number than describing something out.
Speaker 3 (08:50):
Of the air.
Speaker 2 (08:51):
You know, we've all dealt with those attorneys who just
don't want to recognize that this law is on books.
I did not hear about the MSP world until about
two thousand and three, and I attended a seminar where
(09:12):
the title was, is this forty two USC. Thirteen ninety five,
Why anything we have to worry about? And of course
it is, of course it is, But at that time
it just not hit. It had not hit everybody's radar.
And I still encounter lawyers today. I'll fight them, I'll
take care of our client, I'll do this, that and
(09:34):
the other. But they're setting up setting themselves and their
clients up for some problems. To take that attitude. It's
part of the law. It needs to be addressed properly.
Speaker 3 (09:44):
Let me ask you one last one about kind of
an arbitrary number. So we mentioned the seven one hundred
and fifty dollars settlement that may be imaginary. What are
these implications now for CMS if they're no longer reviewing
the zero dollar MSA allocations, And that's just a recent change, right.
Speaker 2 (10:06):
It is a very recent change, and I've got to
tell you, I think it makes very good sense what
they have done. CMS has said for years that they
don't like zeros because listing the zero is just a
slap in the face. And they say, well, it shows
that you are trying to transfer future responsibility to prolodical
(10:28):
treatment to us. You put zero down here. So they
haven't liked them for a long long time. And you
know that rule change kicked into play on July seventeenth
of this year. And there are four things that they've
given us to consider and look at on when a
zero MSA may be shown. Now, again, it's not approved,
(10:50):
they won't approve them. But if these are your facts,
you can justify a zero dollar MSA if the treating
position documents that the claimant will no longer require any
treatment or medications related to the injury makes perfect sense.
You can't use an ia me you've got to be
(11:11):
there at em ME. You've got to use a treating
positions opinion. No more treatment is necessary. Well, that's a
reason for justifying a zero. If you have a fully
denied claim and the employer and career never made any
payments for medical or demity before the settlement, and they're
not being paid at the time of settlement, and the
(11:33):
settlement documents do not allocate anything perhaps to future medical
as a condition of settlement, you can get a zero
there fully documented, and again it makes perfect sense no
payments ever made, and you're clearly not trying to just
dump on medicare that in those circumstances. Number three is
(11:54):
where a cord or commission or board whatever is applicable
in your jurisdiction, has to determine in a ruling on
the merits that the employer here do not owe any
additional medical indemity benefits those aren't being paid, and the
solilent documents allocate a specific amount for future radical. That's
(12:15):
another reason that you can list to zero and be
fully justified. And then in acclaim that's denied within the
statutory investing story period like some states have, you know,
you can you have to make your payments immediately, but
you have a period of time which you can controvert
the obligation. And if you if you do not within
(12:40):
that statutory investigatory period, and benefits aren't being paid. And
the sobular agreement does not allocate a specific amount for
future medical That is another reason you can list zero
in your MSA. There so excuse to me. These things
make perfect sense. They are better than trying to send
(13:01):
something in and get them to agree with your zero
when you've got four very good reasons that you can
rely on for claiming a zero. Now what that doesn't answer,
And this is the case I encountered just last week.
You've got one medical problem that is admitted, and the
(13:24):
doc has said you don't need any more treatment for
this injury, the spraying kind of entry. But when the
litigation starts, the planet's attorney puts another body part in
the allegation. And now not only is it one little
body part that is no longer being treated, but you've
(13:45):
got another body part that's being claimed that has not
been investigated. So you go through the process, you go
through litigation. Now, if you go ahead and you get
an order from the judge, and you don't owe for
that other body part. That would be one of the
reasons to justify zero. But what do you do about
(14:07):
that in light of these four rules? Well, one of
those things that just will have to be worked through.
Affirm like ours offers a legal opinion to help the
litigates understand what their rights and obligations are, and we
could help say, you take rule one and rule two together,
(14:29):
and you cover both of those circumstances of this claim
by using two rules there to justify your zero. So
that may be something that can be considered in those
circumstances there.
Speaker 1 (14:42):
Let me ask you this now, since we are workers podcast,
do any of these new reporting obligations shift the responsibilities
of defense attorneys and workers' compensation cases?
Speaker 2 (14:57):
You know? I think so. One of the things that
has primarily happened in the MSP world is that when
it first came to being recognized in about two thousand
and one, when the NUMBO was written by mister Pettel's
(15:18):
suggesting a Medicare set aside trust fund, everybody started paying
attention to it. But pretty much in the MSP environment,
the lawyers focused on nothing but Medicare set aside. They
didn't worry about the conditional payment issues, they didn't worry
(15:40):
about the reporting issues. It was something that their client
had handled, and I think that has been a mistake.
I think that is something that needs to evolve and
be looked at differently by the attorney. You're trying to
protect your client in that subtle a process says, so
(16:01):
that means you need to look at the law. Do
you know what's been reported to the CMS about that
claim that you're settling two years after the injury was reported.
We are finding untold errors when you look at the
actual reporting. Reporting was pretty much delegated to a clerk
(16:23):
within a unit, and it wasn't really looked at very closely.
We're doing audits own clients, and the numbers of errors
that we are finding are astronomical. Astronomical. Give you examples.
You've got a claim that involves an accepted body part
(16:46):
and a denied body part. All the accepted body part's
been listed there. The bill comes in and it's got
treatment for the denied body part as well, and all
the ICD ten codes from that treatment are dumped in there.
So you have told the CMS that your claim involves
(17:06):
the accepted body part and the denied body part, because
you can listened all the ICD ten codes related to
that unrelated treatment, and lawyers haven't been going back and
helping their clients get that fixed before they do the
settlement documents. Well why not. That's just one of those
things you need to be checking on as a defense attorney.
(17:29):
What have you reported a Medicare? What is this claim about?
From Medicare's perspective. You know, you can update your reporting
on a monthly basis or quarterly basis, and you can
get that fix before you get down to trying to
talk about some approval. Eliminate those things that are not
(17:49):
admitted parts of the claim. It may have to deal
with those in a different way, but that's just one
of those things that I think the lawyers should be
cognizant of and pay attention to. We recommend that in
your settlement documents you actually address not only the MSA
and the settlement amount, but you address what's been reported
(18:12):
to Medicare and whether or not there are any conditional
payments out there that everybody has to worry about it.
It's just part of looking at all three components of
this MSP environment to make sure that things are being
handled properly. That's part of our job as lawyers. Let's
make sure that it's done properly and not just hope
(18:32):
for the best down the road.
Speaker 1 (18:35):
For those listeners who may not be familiar with that term,
conditional payments, what is that?
Speaker 2 (18:42):
Well, under the statute is to give you some background
how it came up. Under the statute, Medicare is not
able to legally pay for things that somebody else is
responsible for. The whole idea of Medicare secondary payer is
(19:03):
that if it's your claim workers' comp carrier, your claim
group health, your claim tort liability carrier, then it's your claim.
It's not ours, and we legally can't Medicare well legally
cannot pay for the medical treatment related to those problems.
When somebody else is departsible. Well, what comes up, though,
(19:28):
is that their indispute, Yeah, there was a wreck to
our an accident, somebody claimed an injury. We're not accepting
that that is a part of our claim or whatever
it might be. The whole claim is not compensible, so
we can't pay it. And then so the statute has
an additional provision that says that you can't pay for it.
(19:51):
But if within a period of time, the CMS determines
the other party is not going to make payment reasonably,
CMS can pay for it condition don't being reimbursed. And
that's what the conditional payments are. There, payments made by
Medicare with the understanding that they're going to get reimbursed.
Speaker 1 (20:14):
Okay, yes, yes, So when your clients refer to the
fact that they've got a conditional payment letter, they're referring
to that kind of scenario. Is that that accurate description
of that? Okay?
Speaker 2 (20:27):
Correct? Right?
Speaker 1 (20:29):
What kind of risks for employers or insures are there
if they fail to comply with these updated reporting requirements?
Speaker 2 (20:39):
Well, there are penalties for failing to report, and if
you report incorrectly, the report may be rejected and it
is like it's never been reported at all, you know.
The reporting of claims to Medicare actually was the two
thousand and seven and then to the Medicare statue. But
(21:03):
it's only been within the last couple of years that
attention to how to deal with those reporting requirements has
been made.
Speaker 3 (21:11):
And what.
Speaker 2 (21:16):
They came up with in October of twenty twenty four
was we're going to give you a year to get
your reporting right to work on it and get it
done properly. And we're going to start looking at what
has been reported in October of twenty twenty five, and
(21:41):
at that time we are going to look at a
small sample of cases and if you haven't reported timely,
and that's what they're focused on right now, is just
timely reporting. If you have not reported, look handled your
reporting properly on a timely basis. And the reporting was
(22:06):
more than a year but less than two years late,
there's going to be a fine or penalty of two
hundred and fifty dollars per day per case. That it's
late per day per case. Wow, if it's more than
the two years less than three, it's five hundred dollars
(22:29):
per day per case. It's more than three years later
in reporting, one thousand dollars per day per case. Those
numbers are adjusted under a CFR regulation. That two point
fifty is now about three fifty seven, the five hundred
(22:49):
is about seven fourteen, and the thousand is fourteen twenty
eight on the numbers that I last checked. And that
means that there are some huge penalties sitting there facing
some people who are not making sure their reporting is
up to date unless you know mistakes can be made.
(23:14):
You turn in the wrong SOL Security number by one
digit or a birthday by one number. All of those
things are errors that could end up making a reporting
the rejected and so if it is one of those
that is caught in the AUDER thing that will begin
(23:34):
in the last quarter this year with penalties be announced
in the first quarter of next year. They're going to
be some penalties. Now they've limited them penalties to a
maximum per reporting entity to three hundred and sixty thousand
dollars a year. The sampling is going to be so
(23:55):
small that we're probably still not going to get a
lot of publicity about these. They're going to be proportionalized
between the group health and the other claims that are
out there, and if sixty of the claims are are
(24:19):
not claims but the r ease or group health, then
they'll probably get sixty of the drawings for the audit
that might take place. So we're going to begin to
see what these penalties actually mean. But that's one of
the big things that is facing the industry making sure
they have that done properly so that they're not on
(24:40):
that list of a big penalty that they're looking at. Now,
that's that's on the reporting side. You've got other penalty
issues to worry about. On the conditional payment side, you
just don't want to pay back those conditional payments. Is
that a good plan? Probably not. So who can get
(25:05):
sued for not paying the conditional payments? Anybody that touches
the money, from claimant to claimant's lawyer to the insurer,
all of those folks can possibly be sued and double
damages can be recorded, can be recovered for not handling
(25:26):
that properly. There are some law firms in South Florida
who are advertising for those cases because a separate cause
of action can be filed by an uninterested party to
collect the double damages for failure to reimburse those conditional payments.
(25:47):
So those are some of the things that we have
to worry about. There is a separate cause of action
of the False Claims Act, and you know that's a
knowing presentation of a false or fraudulent claim to the government,
(26:07):
and you can get you can hit get hit with
trouble damages there. And so if you if you try
to lie about it so that you don't have to
pay back the federal government. You walking yourself into a
much bigger trap that you just shouldn't do. I mean,
it's still all comply with the law. Figure it out
and comply with That's what we as lawyers should be doing.
Speaker 3 (26:32):
Well, you start talking about double and trouble damages, I
think you get a lot of people's attention. I want
to circle back though to something you mentioned before about,
you know, kind of the errors and reporting, because I
think a lot of us have to rely on compliance vendors.
Our clients do that, whether it's a carrier has an
(26:54):
arm that's involved. What have you seen in terms of
like the best practice is for defense attorneys to coordinate
with those vendors that are supposed to be making sure
that the reporting is done accurately and timely so that
you can then incorporate it into those settlement documents like
(27:17):
you talked.
Speaker 2 (27:18):
About, Well, ask the client to send you a copy
of the screen that shows what's actually been reported, so
you know what's been reported, and that if you're not
sure what those ICD ten codes actually are, get somebody
who knows those and figure out what actually has been
(27:40):
reported to be a part of the claim so you're
not surprised about it down the road. I think the
ignorance of what is actually there is probably the biggest
problem because people haven't been checking. They're assuming that it
is done right by their client without helping them address
(28:01):
that issue. So that that's one of the things that
you need to do. You can also have have somebody
run down the conditional payment lians that may be on
file out there. Many many times they are they are
subject to significant reductions because there will be things that
(28:26):
are included there and the conditional payments that aren't related
to the claim. But you've got to look, you've got
to go through. They're pretty reasonable when you sit down
and work with them. Hey, you know, see you've got
this this charges here related to the knee. We only
had a shoulder entry. You've got to take those off.
(28:46):
And they say, okay, I'll stand there's a medical documents
and so they go through that, and it's not unusual
to have those lians reduced substantially if they're looked at,
and the lawyers many times aren't asking for an opportunity
to participate in them. With the new reporting requirements that
(29:08):
we talked about when we started on the settle that's
involving more than seven and fifty dollars for medicare beneficiaries.
Many of the companies out there have one group that
you're doing that initial reporting and another group that's handling
the MSA side, and so they aren't talking to each other.
(29:31):
You've got the reporting group reporting an MSA of X,
and then the group that did the MSA reporting an
MSSA of Y, and so it's just created such a huge,
huge problem because people don't want to pay attention to
those details. Well, it's all something that can be checked,
(29:54):
and that just needs to be checked before you get
to the last day. Another piece of advice is, please
don't wait until the last minute. We got mediation tomorrow.
Let's get us let's find out if they's any conditional payment. Well,
that's not what you do. You should be headed that
long ago before you get to mediation, so that both
(30:17):
sides kind of know what they're looking at. Oh, we
think it's a one hundred thousand dollars case. Well wait,
I say it is a two hundred thousand dollars lean.
Doesn't that change the value somewhat for somebody there? And
is that lean all related? Well, you need to know
that stuff before you get there and you try to
work out the final details of yourself. So be proactive.
(30:39):
And that's one of the things that we haven't seen
many lawyers doing because quite honestly, their client has taken
care of those issues and the lawyers haven't been involved
in talking with their clients about how best to address
those issues early on. That's one of the suggestions that
I would have there.
Speaker 3 (31:02):
So, yes, what I'm taking from you, Jim, is that
you know, the the best practice for attorneys in the
space is being a little less passive, taking a little
more of an active role in getting involved. And you
mentioned the word proactive. There are there any other than
(31:22):
the things you've been mentioning that all seem like they
made a lot of sense in terms of preventing problems
later on. Are there are there any other like proactive
steps that we should be looking at to avoid disputes
with CMS and recovery actions down the road.
Speaker 2 (31:40):
Yeah. One of the things that we as lawyers have
not paid much attention to. Of the ICD ten codes
that are involved in reporting obligations, there are about one
hundred and forty thousand ICD ten codes. About half of
those are treating with codes in about half of those
(32:02):
are diagnosis codes. I wouldn't know if somebody walked up
to me and says, is this the right code for
a shoulder injury? Is this the right code for a
shoulder engine I don't know. We've got people out there
who do know those codes. They know them very well
and know what needs to be in there. So take
(32:23):
the time to find out is this reporting right? Are
we dealing with the right? I see D ten codes
for this particular case. I put the covered icy D
ten codes in the subtlement documents. I think that many,
many plainist lawyers should be asking for in their discovery
(32:45):
some of these details like that, and then if you're
not familiar with them, find somebody that can help you
understand what is there, what should be there, and what
needs to be changed so that the reporting can be
can be handled properly.
Speaker 3 (33:06):
You know.
Speaker 2 (33:06):
One of the things that firms like ours offer is
a legal opinion to parties about the MSP issues, and
I think that that sometimes will go along way. It
really comes in handy in the liability claims. All the
liability claims are expected to be reported and all the
(33:29):
rules apply. They say that all the workers' comp rules
apply to liability claims, they're not really adopted any specific
rules relating to liability claims from a comp standpoint, won't
the places that you need to be concerned as if
you've got a liability claim that came out of a
(33:52):
workplace injury, so that comp may be involved as well
as liability well, CMS says they don't have it written
down anywhere, but at a meeting last year they were
asked what to do about that in that court claim.
They want the comp carrier to report the amount of
somewhat from that third party claim so they know how
(34:15):
much MSA money is actually out there for them on
that particular claim. And it's one of those details that
many people just are not paying close attention to. It's
something that they could they could do differently. Something else
that I really am a fan of, and that is
to professionally administer msas. Groups like a metroce to do
(34:40):
that for one thousand dollars, And it makes so much sense.
If one of us were asked to file or annual
reporting that goes along with an MSA, we would all struggle.
It's just that difficult. So don't assume that injured workers
going on have the capacity to handle all that, because
(35:03):
if not handled right, Medicaire could just say, well, you know,
we're going to take credit for your entire subtlement against
our liability rather than this MSA not because you hadn't
followed the reporting property. We don't know what you spent
or what you spent it on. So everybody needs to
(35:23):
try to help make sure that injured worker gets what
he's supposed to out of the subtlement, and sometimes that
professional administration will make all the difference in the world.
Speaker 1 (35:35):
This is great advice, Jim, and I'm taking notes because
I want to utilize it a lot in my practice.
Let me ask you this, and this might answer my question.
You said, before there's even a law firm in Florida
that's maybe taking cases to litigate these do you foresee
more litigation or disputes every Medicare's recovery rights.
Speaker 2 (35:55):
I think so. I think so. I think the steps
that does see him has taken over the last couple
of years are a good indication that they are even
more serious about having to protect the Medicare Trust Fund.
And if you look at that goal of making sure
(36:15):
the money is there to pay for medical expenses, for
everybody who's own Medicare. They've got to make sure that
they do their job properly and only pay for stuff
that they should be paying for. And these processes that
they have in place are all designed to make sure
that that happens. So when somebody steps over the line
(36:36):
and tries to pull a fast one on them, I
think they'll see Medicare in their future. In the courtroom,
you know, it's not a place i'd want to be.
Speaker 1 (36:49):
How should attorneys advise their clients when CMS approval is
not required but still recommended? A CSA has come up
a lot in my practice personally well.
Speaker 2 (37:02):
From the planets lawyer's standpoint, if the planet lawyer wants
to make sure that his client has access to Medicare
in the future, steps need to be taken to make
sure that it is done right. Insist insist on the
Medicare approving an ms A, particularly in a very ugly
(37:23):
case where there's so much going on with the treatment
and so forth. I can see a more proactive role
of saying, let's do it right, let's get Medicare from
this one so that we know the money is there.
Uh So, from the defense lawyers standpoint, the defense lawyer
(37:46):
can make recommendations to his carrier all day long. It
doesn't mean they're going to follow the lawyer's advice, but
I do think that the lawyer should take the stand. Look,
let's do this right. We're trying to make sure that
we're not having to fight this this down the road
because it wasn't done properly. In some states you'll see
(38:08):
somewhat get set aside because it wasn't handled properly. What
happens is that injured worker has no access to medical
treatment at all because it wasn't handled properly. And then
where's where does that leave that person other than getting
(38:29):
another lawyer, ensuing everybody and getting some set aside and
all of that. Doing it right will avoid those kinds
of problems in the future.
Speaker 3 (38:42):
Jim, it sounds like this is I mean, this is
an area, a specialty area that has continued to evolve
over the last couple of decades. With that experience that
you have, do you see anything like what's the next
change that we should be anticipating or that you think
is coming on the horizon?
Speaker 2 (39:05):
You know, I don't know with the current national administration
in the In the commitment to downsizing so many of
the federal agencies. I really don't know what to expect
right now. I think it's going to take a little
bit of time, for a passage of time to see
(39:26):
it all, pleash out, see what actually happens down the road.
I think that handedly most of us defense lawyers haven't
paid close enough attention to these details. I know that
I did not for years. And starting to dig down
(39:48):
into the details to understand what people are talking about
when they talk about MSP issues is just extremely important.
And then making sure there's and right, there's a reason
for that. And as lawyers, that's what we should be
trying to do, make sure things are done right. That
makes sense, well.
Speaker 3 (40:10):
It does. And if folks want to get a hold
of you, if they have further questions or need to
consult with you on a case, what is the what
is the best way for folks to get in touch
with you.
Speaker 2 (40:24):
Well, as earlier mentioned, I'm in the Austin area. Our
firm is actually headquartered in Charlotte, where John Catty and
some mothers reside in. Raphael Gonzalez is in Tampa, and
so we are covering pretty much the nation from our
(40:45):
various locations because these issues exist in all those states.
We are all at toughtling my phone by email. The
only phone that I have here is my cell number,
which is six oh one fifteen hundred, and my email
address is Jay Anderson at caddylow dot com, and Raphael's
(41:09):
is our guns all us at kylow dot com and
John Katy's at Jkty at KTL dot com. So we're
all accessible. We have a good team of people who
know what they're doing and delighted to help anyone who
is interested in trying to navigate this this mess that's
before us, that has been pretty much ignored.
Speaker 3 (41:30):
So, Jim, thank you so much for shedding a little
light on us today. At You've definitely woke up a
few things for me in terms of things I need
to make sure that I keep track of the next
time one of these comes across my desk.
Speaker 1 (41:45):
Yes, thank thank you.
Speaker 2 (41:47):
Why did you do that? Give me a calls you
have questions?
Speaker 1 (41:50):
Well do? Thank you so much. Jim, don't
Speaker 3 (42:02):
A book
Welcome back to another episode of the comp Conversations podcast,
a podcast developed through DRI where we discuss the world
of workers' compensation, exploring issues involving occupational injuries, treatment, claims, management, litigation,
as well as future trends and emerging issues in this
area of law. My name is Jennifer White, and I'm
(00:38):
here with Shane Dawson, a partner at Densmore and sholl And, Ohio.
We are delighted to have Jim Anderson, a partner with
Caddie and Gonzalez, with us on today's podcast to talk
about mandatory MSA reporting and how that affects workers practitioners.
Jim is a partner at caddy in Gazalz in Austin, Texas,
a nationally recognized law firm and the Medicare Secondary payer space.
(01:03):
The decades of experience in workers' compensation law, he is
a frequent lecturer on MSA reporting and compliance and has
played a key role in shaping national conversations on MSP enforcement.
Mister Anderson has admitted to practice law in Texas and
Mississippi and before the US Supreme Court. Jim, welcome to
Calm Conversations.
Speaker 2 (01:24):
Well, thanks very much, I'm delighted to be here. It's
good to be with my friends today in this fashion.
Speaker 3 (01:32):
Jim, before we launch into the details of all of this,
can you just kind of explain, in a very broad sense,
with some of the key changes the CMS implemented this
past April of twenty twenty five regarding mandatory Medicare sets
(01:56):
cyber reporting.
Speaker 2 (01:58):
Absolutely, just to give you a little bit of background
that to put it all in perspective, the Medicare secondary
payer law has three distinct components, one of which is
mandatory ensure reporting. They want those who are handling the
claims to let Medicare know that they have a claim
(02:21):
involving a Medicare beneficiary. That's a key phrase. Too many
people think that every claim is involved. It's every claim
involving a Medicare beneficiary. And so what Medicare discovered is
that the number of msas being submitted to them for
consideration and approval is declining over the last five years.
(02:45):
With the statistics that they publish themselves, and the numbers
that are being submitted for approval are declining, and Medicare's
response has been a requested increase in the submitted number
twenty to twenty two percent over the past couple of years,
and I think that they realized that since the Medicare
(03:08):
approval process is entirely voluntary, there is no situation when
an MSA has to be submitted, but it is highly recommended.
Since they were getting fewer and fewer msas, we think
that they said, well, this would be a way to
do it. Just every claim involving a settlement involving the
(03:28):
Medicare beneficiary where the claim settles for more than seven
hundred and fifty dollars has to be reported. So we
know that there's an MSA out there. It's not one
that they're proving, but we know that there's an MSA
out there, and that's what that is really all about.
There are seven new codes to fill in on the
(03:50):
reporting that has to be done on those claims. They
want to know the total MSA amount if TEAPOK has
been reported. TEAPOT means a total payment robligational claim, which
is a settlement. That's just what CMS calls it. So
if you settle for more than seven hundred and fifty dollars,
how much is the MSA out of that settlement. They
(04:12):
next want to know whether it's going to be in
a lump sum or whether it's going to be structured
with you know, pay some money up front and then
replenish the account on an annual basis thereafter. And so
if it's a lump subtle mouth, then they want to
know that number. If they it's a structure, they want
(04:33):
to know how long it's going to last, how much
your initial deposit is going to be, and how much
the recurring annual deposit is going to be. Excuse me,
it's going to be on those And in addition, there
are a couple of optional codes to fill in. If
there was a workers copy MSA previously reviewed and approved
(04:57):
by CMS, they want the case control that goes with
that to be listed there. And if it's one that
is professionally administered, they want the tax idea of the
professional administrator to be listed. Those two pieces there are optional,
but it is part of the new changes that they
have that they have come up with for reporting processes.
Speaker 3 (05:24):
So you mentioned just now about this threshold of seven
hundred and fifty dollars that if it's if it's a
beneficiary and if the settlement is over seven fifty that
it has to be reported So does this change any
of those CMS review thresholds that I think we've all
(05:47):
heard over the years of different different seminars.
Speaker 2 (05:52):
Absolutely not. Doesn't have a blessed thing to do with those.
Remember that the whole SAY process is a voluntary process,
and in order for them to be able to manage this,
they just set up some guidelines for everybody to follow,
(06:14):
so you know, when they expect one to be sent in.
If the claimant is a Medicare beneficiary and the settlement
is more than twenty five thousand dollars, they will consider those.
If there's a reasonable expectation at the time of settlement
(06:37):
that the claimant will be a Medicare beneficiary within the
next thirty months and the settlement is more than two
hundred and fifty thousand dollars, CMS will consider those as well.
So these again are just workload thresholds. This reporting of
msas is completely different, something new that is going to
(06:58):
change the face I think of the Medicare compliance industry.
It's just they're going to know that they're out there
and people will be answering questions.
Speaker 3 (07:08):
Okay, so those of us that have kind of committed
some of these numbers that you just mentioned the twenty
five thousand, the two hundred and fifty thousand. If you
know there's an expectation within thirty months, we're still good
retaining that information in our brains.
Speaker 2 (07:23):
Right, absolutely, and I recommend that you follow with it.
I do know that more and more carriers out there
are deciding that since it'sive volunteer process, they're not going
to send them in for consideration, and candidly that's going
to have other replicasions repercussions down the road. I think
(07:44):
that's one of the reasons. I think that they came
up with this new reporting process. They know that there's
an MSA in there. Now. One of the questions we
haven't addressed is how you figure out what that MSA is.
Speaker 3 (07:57):
Now.
Speaker 2 (07:58):
In my practice, I never saw a settlement of seven
hundred and fifty dollars on a workers compensation case. We
couldn't get it approved by our regulatory authority even if
we had decided to get one done for seven hundred
and fifty dollars. So that artificial number there doesn't make
a lot of sense, but it kind of lays out
what their expectations are. So how do you come up
(08:21):
with that number when you're settling case for five thousand dollars,
it ends up most of the time being a number
that's just pulled out of the air, Although there are
resources out there where groups can come up with a
number to put in there under the circumstances of that case,
(08:45):
that is not approved by seeing that. But it's a
more realistic number than describing something out.
Speaker 3 (08:50):
Of the air.
Speaker 2 (08:51):
You know, we've all dealt with those attorneys who just
don't want to recognize that this law is on books.
I did not hear about the MSP world until about
two thousand and three, and I attended a seminar where
(09:12):
the title was, is this forty two USC. Thirteen ninety five,
Why anything we have to worry about? And of course
it is, of course it is, But at that time
it just not hit. It had not hit everybody's radar.
And I still encounter lawyers today. I'll fight them, I'll
take care of our client, I'll do this, that and
(09:34):
the other. But they're setting up setting themselves and their
clients up for some problems. To take that attitude. It's
part of the law. It needs to be addressed properly.
Speaker 3 (09:44):
Let me ask you one last one about kind of
an arbitrary number. So we mentioned the seven one hundred
and fifty dollars settlement that may be imaginary. What are
these implications now for CMS if they're no longer reviewing
the zero dollar MSA allocations, And that's just a recent change, right.
Speaker 2 (10:06):
It is a very recent change, and I've got to
tell you, I think it makes very good sense what
they have done. CMS has said for years that they
don't like zeros because listing the zero is just a
slap in the face. And they say, well, it shows
that you are trying to transfer future responsibility to prolodical
(10:28):
treatment to us. You put zero down here. So they
haven't liked them for a long long time. And you
know that rule change kicked into play on July seventeenth
of this year. And there are four things that they've
given us to consider and look at on when a
zero MSA may be shown. Now, again, it's not approved,
(10:50):
they won't approve them. But if these are your facts,
you can justify a zero dollar MSA if the treating
position documents that the claimant will no longer require any
treatment or medications related to the injury makes perfect sense.
You can't use an ia me you've got to be
(11:11):
there at em ME. You've got to use a treating
positions opinion. No more treatment is necessary. Well, that's a
reason for justifying a zero. If you have a fully
denied claim and the employer and career never made any
payments for medical or demity before the settlement, and they're
not being paid at the time of settlement, and the
(11:33):
settlement documents do not allocate anything perhaps to future medical
as a condition of settlement, you can get a zero
there fully documented, and again it makes perfect sense no
payments ever made, and you're clearly not trying to just
dump on medicare that in those circumstances. Number three is
(11:54):
where a cord or commission or board whatever is applicable
in your jurisdiction, has to determine in a ruling on
the merits that the employer here do not owe any
additional medical indemity benefits those aren't being paid, and the
solilent documents allocate a specific amount for future radical. That's
(12:15):
another reason that you can list to zero and be
fully justified. And then in acclaim that's denied within the
statutory investing story period like some states have, you know,
you can you have to make your payments immediately, but
you have a period of time which you can controvert
the obligation. And if you if you do not within
(12:40):
that statutory investigatory period, and benefits aren't being paid. And
the sobular agreement does not allocate a specific amount for
future medical That is another reason you can list zero
in your MSA. There so excuse to me. These things
make perfect sense. They are better than trying to send
(13:01):
something in and get them to agree with your zero
when you've got four very good reasons that you can
rely on for claiming a zero. Now what that doesn't answer,
And this is the case I encountered just last week.
You've got one medical problem that is admitted, and the
(13:24):
doc has said you don't need any more treatment for
this injury, the spraying kind of entry. But when the
litigation starts, the planet's attorney puts another body part in
the allegation. And now not only is it one little
body part that is no longer being treated, but you've
(13:45):
got another body part that's being claimed that has not
been investigated. So you go through the process, you go
through litigation. Now, if you go ahead and you get
an order from the judge, and you don't owe for
that other body part. That would be one of the
reasons to justify zero. But what do you do about
(14:07):
that in light of these four rules? Well, one of
those things that just will have to be worked through.
Affirm like ours offers a legal opinion to help the
litigates understand what their rights and obligations are, and we
could help say, you take rule one and rule two together,
(14:29):
and you cover both of those circumstances of this claim
by using two rules there to justify your zero. So
that may be something that can be considered in those
circumstances there.
Speaker 1 (14:42):
Let me ask you this now, since we are workers podcast,
do any of these new reporting obligations shift the responsibilities
of defense attorneys and workers' compensation cases?
Speaker 2 (14:57):
You know? I think so. One of the things that
has primarily happened in the MSP world is that when
it first came to being recognized in about two thousand
and one, when the NUMBO was written by mister Pettel's
(15:18):
suggesting a Medicare set aside trust fund, everybody started paying
attention to it. But pretty much in the MSP environment,
the lawyers focused on nothing but Medicare set aside. They
didn't worry about the conditional payment issues, they didn't worry
(15:40):
about the reporting issues. It was something that their client
had handled, and I think that has been a mistake.
I think that is something that needs to evolve and
be looked at differently by the attorney. You're trying to
protect your client in that subtle a process says, so
(16:01):
that means you need to look at the law. Do
you know what's been reported to the CMS about that
claim that you're settling two years after the injury was reported.
We are finding untold errors when you look at the
actual reporting. Reporting was pretty much delegated to a clerk
(16:23):
within a unit, and it wasn't really looked at very closely.
We're doing audits own clients, and the numbers of errors
that we are finding are astronomical. Astronomical. Give you examples.
You've got a claim that involves an accepted body part
(16:46):
and a denied body part. All the accepted body part's
been listed there. The bill comes in and it's got
treatment for the denied body part as well, and all
the ICD ten codes from that treatment are dumped in there.
So you have told the CMS that your claim involves
(17:06):
the accepted body part and the denied body part, because
you can listened all the ICD ten codes related to
that unrelated treatment, and lawyers haven't been going back and
helping their clients get that fixed before they do the
settlement documents. Well why not. That's just one of those
things you need to be checking on as a defense attorney.
(17:29):
What have you reported a Medicare? What is this claim about?
From Medicare's perspective. You know, you can update your reporting
on a monthly basis or quarterly basis, and you can
get that fix before you get down to trying to
talk about some approval. Eliminate those things that are not
(17:49):
admitted parts of the claim. It may have to deal
with those in a different way, but that's just one
of those things that I think the lawyers should be
cognizant of and pay attention to. We recommend that in
your settlement documents you actually address not only the MSA
and the settlement amount, but you address what's been reported
(18:12):
to Medicare and whether or not there are any conditional
payments out there that everybody has to worry about it.
It's just part of looking at all three components of
this MSP environment to make sure that things are being
handled properly. That's part of our job as lawyers. Let's
make sure that it's done properly and not just hope
(18:32):
for the best down the road.
Speaker 1 (18:35):
For those listeners who may not be familiar with that term,
conditional payments, what is that?
Speaker 2 (18:42):
Well, under the statute is to give you some background
how it came up. Under the statute, Medicare is not
able to legally pay for things that somebody else is
responsible for. The whole idea of Medicare secondary payer is
(19:03):
that if it's your claim workers' comp carrier, your claim
group health, your claim tort liability carrier, then it's your claim.
It's not ours, and we legally can't Medicare well legally
cannot pay for the medical treatment related to those problems.
When somebody else is departsible. Well, what comes up, though,
(19:28):
is that their indispute, Yeah, there was a wreck to
our an accident, somebody claimed an injury. We're not accepting
that that is a part of our claim or whatever
it might be. The whole claim is not compensible, so
we can't pay it. And then so the statute has
an additional provision that says that you can't pay for it.
(19:51):
But if within a period of time, the CMS determines
the other party is not going to make payment reasonably,
CMS can pay for it condition don't being reimbursed. And
that's what the conditional payments are. There, payments made by
Medicare with the understanding that they're going to get reimbursed.
Speaker 1 (20:14):
Okay, yes, yes, So when your clients refer to the
fact that they've got a conditional payment letter, they're referring
to that kind of scenario. Is that that accurate description
of that? Okay?
Speaker 2 (20:27):
Correct? Right?
Speaker 1 (20:29):
What kind of risks for employers or insures are there
if they fail to comply with these updated reporting requirements?
Speaker 2 (20:39):
Well, there are penalties for failing to report, and if
you report incorrectly, the report may be rejected and it
is like it's never been reported at all, you know.
The reporting of claims to Medicare actually was the two
thousand and seven and then to the Medicare statue. But
(21:03):
it's only been within the last couple of years that
attention to how to deal with those reporting requirements has
been made.
Speaker 3 (21:11):
And what.
Speaker 2 (21:16):
They came up with in October of twenty twenty four
was we're going to give you a year to get
your reporting right to work on it and get it
done properly. And we're going to start looking at what
has been reported in October of twenty twenty five, and
(21:41):
at that time we are going to look at a
small sample of cases and if you haven't reported timely,
and that's what they're focused on right now, is just
timely reporting. If you have not reported, look handled your
reporting properly on a timely basis. And the reporting was
(22:06):
more than a year but less than two years late,
there's going to be a fine or penalty of two
hundred and fifty dollars per day per case. That it's
late per day per case. Wow, if it's more than
the two years less than three, it's five hundred dollars
(22:29):
per day per case. It's more than three years later
in reporting, one thousand dollars per day per case. Those
numbers are adjusted under a CFR regulation. That two point
fifty is now about three fifty seven, the five hundred
(22:49):
is about seven fourteen, and the thousand is fourteen twenty
eight on the numbers that I last checked. And that
means that there are some huge penalties sitting there facing
some people who are not making sure their reporting is
up to date unless you know mistakes can be made.
(23:14):
You turn in the wrong SOL Security number by one
digit or a birthday by one number. All of those
things are errors that could end up making a reporting
the rejected and so if it is one of those
that is caught in the AUDER thing that will begin
(23:34):
in the last quarter this year with penalties be announced
in the first quarter of next year. They're going to
be some penalties. Now they've limited them penalties to a
maximum per reporting entity to three hundred and sixty thousand
dollars a year. The sampling is going to be so
(23:55):
small that we're probably still not going to get a
lot of publicity about these. They're going to be proportionalized
between the group health and the other claims that are
out there, and if sixty of the claims are are
(24:19):
not claims but the r ease or group health, then
they'll probably get sixty of the drawings for the audit
that might take place. So we're going to begin to
see what these penalties actually mean. But that's one of
the big things that is facing the industry making sure
they have that done properly so that they're not on
(24:40):
that list of a big penalty that they're looking at. Now,
that's that's on the reporting side. You've got other penalty
issues to worry about. On the conditional payment side, you
just don't want to pay back those conditional payments. Is
that a good plan? Probably not. So who can get
(25:05):
sued for not paying the conditional payments? Anybody that touches
the money, from claimant to claimant's lawyer to the insurer,
all of those folks can possibly be sued and double
damages can be recorded, can be recovered for not handling
(25:26):
that properly. There are some law firms in South Florida
who are advertising for those cases because a separate cause
of action can be filed by an uninterested party to
collect the double damages for failure to reimburse those conditional payments.
(25:47):
So those are some of the things that we have
to worry about. There is a separate cause of action
of the False Claims Act, and you know that's a
knowing presentation of a false or fraudulent claim to the government,
(26:07):
and you can get you can hit get hit with
trouble damages there. And so if you if you try
to lie about it so that you don't have to
pay back the federal government. You walking yourself into a
much bigger trap that you just shouldn't do. I mean,
it's still all comply with the law. Figure it out
and comply with That's what we as lawyers should be doing.
Speaker 3 (26:32):
Well, you start talking about double and trouble damages, I
think you get a lot of people's attention. I want
to circle back though to something you mentioned before about,
you know, kind of the errors and reporting, because I
think a lot of us have to rely on compliance vendors.
Our clients do that, whether it's a carrier has an
(26:54):
arm that's involved. What have you seen in terms of
like the best practice is for defense attorneys to coordinate
with those vendors that are supposed to be making sure
that the reporting is done accurately and timely so that
you can then incorporate it into those settlement documents like
(27:17):
you talked.
Speaker 2 (27:18):
About, Well, ask the client to send you a copy
of the screen that shows what's actually been reported, so
you know what's been reported, and that if you're not
sure what those ICD ten codes actually are, get somebody
who knows those and figure out what actually has been
(27:40):
reported to be a part of the claim so you're
not surprised about it down the road. I think the
ignorance of what is actually there is probably the biggest
problem because people haven't been checking. They're assuming that it
is done right by their client without helping them address
(28:01):
that issue. So that that's one of the things that
you need to do. You can also have have somebody
run down the conditional payment lians that may be on
file out there. Many many times they are they are
subject to significant reductions because there will be things that
(28:26):
are included there and the conditional payments that aren't related
to the claim. But you've got to look, you've got
to go through. They're pretty reasonable when you sit down
and work with them. Hey, you know, see you've got
this this charges here related to the knee. We only
had a shoulder entry. You've got to take those off.
(28:46):
And they say, okay, I'll stand there's a medical documents
and so they go through that, and it's not unusual
to have those lians reduced substantially if they're looked at,
and the lawyers many times aren't asking for an opportunity
to participate in them. With the new reporting requirements that
(29:08):
we talked about when we started on the settle that's
involving more than seven and fifty dollars for medicare beneficiaries.
Many of the companies out there have one group that
you're doing that initial reporting and another group that's handling
the MSA side, and so they aren't talking to each other.
(29:31):
You've got the reporting group reporting an MSA of X,
and then the group that did the MSA reporting an
MSSA of Y, and so it's just created such a huge,
huge problem because people don't want to pay attention to
those details. Well, it's all something that can be checked,
(29:54):
and that just needs to be checked before you get
to the last day. Another piece of advice is, please
don't wait until the last minute. We got mediation tomorrow.
Let's get us let's find out if they's any conditional payment. Well,
that's not what you do. You should be headed that
long ago before you get to mediation, so that both
(30:17):
sides kind of know what they're looking at. Oh, we
think it's a one hundred thousand dollars case. Well wait,
I say it is a two hundred thousand dollars lean.
Doesn't that change the value somewhat for somebody there? And
is that lean all related? Well, you need to know
that stuff before you get there and you try to
work out the final details of yourself. So be proactive.
(30:39):
And that's one of the things that we haven't seen
many lawyers doing because quite honestly, their client has taken
care of those issues and the lawyers haven't been involved
in talking with their clients about how best to address
those issues early on. That's one of the suggestions that
I would have there.
Speaker 3 (31:02):
So, yes, what I'm taking from you, Jim, is that
you know, the the best practice for attorneys in the
space is being a little less passive, taking a little
more of an active role in getting involved. And you
mentioned the word proactive. There are there any other than
(31:22):
the things you've been mentioning that all seem like they
made a lot of sense in terms of preventing problems
later on. Are there are there any other like proactive
steps that we should be looking at to avoid disputes
with CMS and recovery actions down the road.
Speaker 2 (31:40):
Yeah. One of the things that we as lawyers have
not paid much attention to. Of the ICD ten codes
that are involved in reporting obligations, there are about one
hundred and forty thousand ICD ten codes. About half of
those are treating with codes in about half of those
(32:02):
are diagnosis codes. I wouldn't know if somebody walked up
to me and says, is this the right code for
a shoulder injury? Is this the right code for a
shoulder engine I don't know. We've got people out there
who do know those codes. They know them very well
and know what needs to be in there. So take
(32:23):
the time to find out is this reporting right? Are
we dealing with the right? I see D ten codes
for this particular case. I put the covered icy D
ten codes in the subtlement documents. I think that many,
many plainist lawyers should be asking for in their discovery
(32:45):
some of these details like that, and then if you're
not familiar with them, find somebody that can help you
understand what is there, what should be there, and what
needs to be changed so that the reporting can be
can be handled properly.
Speaker 3 (33:06):
You know.
Speaker 2 (33:06):
One of the things that firms like ours offer is
a legal opinion to parties about the MSP issues, and
I think that that sometimes will go along way. It
really comes in handy in the liability claims. All the
liability claims are expected to be reported and all the
(33:29):
rules apply. They say that all the workers' comp rules
apply to liability claims, they're not really adopted any specific
rules relating to liability claims from a comp standpoint, won't
the places that you need to be concerned as if
you've got a liability claim that came out of a
(33:52):
workplace injury, so that comp may be involved as well
as liability well, CMS says they don't have it written
down anywhere, but at a meeting last year they were
asked what to do about that in that court claim.
They want the comp carrier to report the amount of
somewhat from that third party claim so they know how
(34:15):
much MSA money is actually out there for them on
that particular claim. And it's one of those details that
many people just are not paying close attention to. It's
something that they could they could do differently. Something else
that I really am a fan of, and that is
to professionally administer msas. Groups like a metroce to do
(34:40):
that for one thousand dollars, And it makes so much sense.
If one of us were asked to file or annual
reporting that goes along with an MSA, we would all struggle.
It's just that difficult. So don't assume that injured workers
going on have the capacity to handle all that, because
(35:03):
if not handled right, Medicaire could just say, well, you know,
we're going to take credit for your entire subtlement against
our liability rather than this MSA not because you hadn't
followed the reporting property. We don't know what you spent
or what you spent it on. So everybody needs to
(35:23):
try to help make sure that injured worker gets what
he's supposed to out of the subtlement, and sometimes that
professional administration will make all the difference in the world.
Speaker 1 (35:35):
This is great advice, Jim, and I'm taking notes because
I want to utilize it a lot in my practice.
Let me ask you this, and this might answer my question.
You said, before there's even a law firm in Florida
that's maybe taking cases to litigate these do you foresee
more litigation or disputes every Medicare's recovery rights.
Speaker 2 (35:55):
I think so. I think so. I think the steps
that does see him has taken over the last couple
of years are a good indication that they are even
more serious about having to protect the Medicare Trust Fund.
And if you look at that goal of making sure
(36:15):
the money is there to pay for medical expenses, for
everybody who's own Medicare. They've got to make sure that
they do their job properly and only pay for stuff
that they should be paying for. And these processes that
they have in place are all designed to make sure
that that happens. So when somebody steps over the line
(36:36):
and tries to pull a fast one on them, I
think they'll see Medicare in their future. In the courtroom,
you know, it's not a place i'd want to be.
Speaker 1 (36:49):
How should attorneys advise their clients when CMS approval is
not required but still recommended? A CSA has come up
a lot in my practice personally well.
Speaker 2 (37:02):
From the planets lawyer's standpoint, if the planet lawyer wants
to make sure that his client has access to Medicare
in the future, steps need to be taken to make
sure that it is done right. Insist insist on the
Medicare approving an ms A, particularly in a very ugly
(37:23):
case where there's so much going on with the treatment
and so forth. I can see a more proactive role
of saying, let's do it right, let's get Medicare from
this one so that we know the money is there.
Uh So, from the defense lawyers standpoint, the defense lawyer
(37:46):
can make recommendations to his carrier all day long. It
doesn't mean they're going to follow the lawyer's advice, but
I do think that the lawyer should take the stand. Look,
let's do this right. We're trying to make sure that
we're not having to fight this this down the road
because it wasn't done properly. In some states you'll see
(38:08):
somewhat get set aside because it wasn't handled properly. What
happens is that injured worker has no access to medical
treatment at all because it wasn't handled properly. And then
where's where does that leave that person other than getting
(38:29):
another lawyer, ensuing everybody and getting some set aside and
all of that. Doing it right will avoid those kinds
of problems in the future.
Speaker 3 (38:42):
Jim, it sounds like this is I mean, this is
an area, a specialty area that has continued to evolve
over the last couple of decades. With that experience that
you have, do you see anything like what's the next
change that we should be anticipating or that you think
is coming on the horizon?
Speaker 2 (39:05):
You know, I don't know with the current national administration
in the In the commitment to downsizing so many of
the federal agencies. I really don't know what to expect
right now. I think it's going to take a little
bit of time, for a passage of time to see
(39:26):
it all, pleash out, see what actually happens down the road.
I think that handedly most of us defense lawyers haven't
paid close enough attention to these details. I know that
I did not for years. And starting to dig down
(39:48):
into the details to understand what people are talking about
when they talk about MSP issues is just extremely important.
And then making sure there's and right, there's a reason
for that. And as lawyers, that's what we should be
trying to do, make sure things are done right. That
makes sense, well.
Speaker 3 (40:10):
It does. And if folks want to get a hold
of you, if they have further questions or need to
consult with you on a case, what is the what
is the best way for folks to get in touch
with you.
Speaker 2 (40:24):
Well, as earlier mentioned, I'm in the Austin area. Our
firm is actually headquartered in Charlotte, where John Catty and
some mothers reside in. Raphael Gonzalez is in Tampa, and
so we are covering pretty much the nation from our
(40:45):
various locations because these issues exist in all those states.
We are all at toughtling my phone by email. The
only phone that I have here is my cell number,
which is six oh one fifteen hundred, and my email
address is Jay Anderson at caddylow dot com, and Raphael's
(41:09):
is our guns all us at kylow dot com and
John Katy's at Jkty at KTL dot com. So we're
all accessible. We have a good team of people who
know what they're doing and delighted to help anyone who
is interested in trying to navigate this this mess that's
before us, that has been pretty much ignored.
Speaker 3 (41:30):
So, Jim, thank you so much for shedding a little
light on us today. At You've definitely woke up a
few things for me in terms of things I need
to make sure that I keep track of the next
time one of these comes across my desk.
Speaker 1 (41:45):
Yes, thank thank you.
Speaker 2 (41:47):
Why did you do that? Give me a calls you
have questions?
Speaker 1 (41:50):
Well do? Thank you so much. Jim, don't
Speaker 3 (42:02):
A book
Popular Podcasts
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
The Clay Travis and Buck Sexton Show
The Clay Travis and Buck Sexton Show. Clay Travis and Buck Sexton tackle the biggest stories in news, politics and current events with intelligence and humor. From the border crisis, to the madness of cancel culture and far-left missteps, Clay and Buck guide listeners through the latest headlines and hot topics with fun and entertaining conversations and opinions.