Medicare Set-Aside Arrangements and Third-Party Liability Cases

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2 Medicare Set-Aside Arrangements and Third-Party Liability Cases CLM015 Speakers: Lora Figgat, CRM, Risk Manager, NetApp Melissa Price Matovich, ESQ, Shaw, Jacobsmeyer, Crain & Claffey

3 The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the correct file and location. The growth in the number and proportion of older adults is unprecedented in the history of the United States. Two factors longer life spans and aging baby boomers (born between 1946 and 1964) will combine to double the population of Americans aged 65 years or older during the next 25 years to about 72 million. Baby boomers currently in the workforce were asked about their intentions to retire when they reached 60-65: 41% responded they would not quit. Employers dealing with aging employees who have filed a Worker s Compensation (WC) case involving future medical expenses will have to take into account the interests of the Medicare system. The Medicare system is feeling the financial strain and the prediction is it will only get worse; Medicare may become more aggressive going after funds they feel entitled to.

4 Learning Objectives At the end of this session, you will: Understand what a Worker s Compensation Medicare Set-Aside Arrangement is and a Basic Claim Process Understand employer s justifications to settle claims early vs. Medicare s concerns & objections Anticipate potential future developments from the perspective of the Employer, Medicare and the Employee

5 Injury Occurs Employee Employer Carrier/TPA Report and Compensability Ø 14 / 90 Day Decision Ø Accept / Delay / Deny Medical Care Temporary Disability Permanent Disability

6 Claim Process Application Medical Exams Disability Determination Ø Temporary Ø Modified Ø Return to Work Permanent Disability

7 Litigation Process Settlement Ø Stipulated Ø Compromise & Release Ø Medicare Set-Aside

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9 CASE #1 - INFORMATION RE: Jane Doe SS# DOB: 01/19/1952 (63 years) DOI: 06/12/2010 WC Jurisdic4on: CA Claim # Employer: WorldWind Interna?onal INC. Residence: 1234 San Padre St., San Jose, CA Diagnosis: Neck, back, and chest pain, stress, anxiety, and depression ICD- 9 Codes: , 724,5, 311, , Medical Cost Projec4ons Prepared By: GOOL, LLC Date Prepared: 10/23/2014

10 Estimated Annual Recurring Non-Medicare Related Medical Expenses Over Life Expectancy Recommendation Number of Services/Items Frequency # of Yrs for Recurrence of Services/Items Avg. Cost/Unit Avg. LE Costs Therapy Acupuncture $68.00 $21, Support Care Interpreter 25 1 $ $4, Mileage 25 1 $6.00 $ Mileage Mileage (additional) $6.00 $9, Estimated Annual Expenses: $1, Estimated Lifetime Expenses: $35,226.00

11 Estimated Non-Medicare Related Drug Expenses Over Life Expectancy Prescription Name/Dosage NDC Number Frequency/ Duration # of Refills per year # of years Price per Refill Life-Time Non- Medicare Related Expenses Annual Non- Medicare Related Expenses Menthoderm 10%/15% Gel PRN 120 grams/mouth $ $42, $1,627.20

12 Estimated Annual Recurring Non-Medicare Related Medical Expenses Over Life Expectancy Recommendation Number of Services/Items Frequency # of Yrs for Recurrence of Services/Items Avg. Cost/ Unit Avg. LE Costs Physician Evaluations Therapy Occupational Medicine 13 1 $85.00 $1, Psychiatrist 12 1 $ $1, Physical Therapy (Lumbar) 1 26 $ $2, Physical Therapy (Cervical) 1 26 $ $2, Estimated Annual Expenses: Diagnostics Standard Bloodwork (CBC, Chem Panel) 1 1 $34.00 $34.00 MRI (Lumbar) 4 26 $ $68, MRI (Cervical) 4 26 $ $69, X-RAY (Lumbar) 6 26 $ $17, X-RAY (Cervical) 6 26 $ $16, Equipment Cervical Traction Unit 2 26 $ $26, TENS Unit 4 26 $ $15, TENS Supplies Supplies (Electrodes) 4 1 $27.00 $ TENS Supplies (Lead Wires) 1 1 $36.00 $36.00 $8, Estimated Lifetime Expenses: $222,631.00

13 Estimated Prescription Drug Expenses Over Life Expectancy Prescription Name/ Dosage NDC Number Frequency/ Duration # of Refills per year # of years Price per Refill Annual Non- Medicare Related Expenses Life-Time Non- Medicare Related Expenses Escitalopram 20mg OD 30/mouth $ $1, $35, Duloxetine 30mg OD 90/mouth $ $6, $166, Trazodone 50mg Tramadol/apap 37.5mg/325mg PRN 60/ mouth BID PRN 60/ mouth $24.60 $ $7, $57.60 $ $17, Omeprazole 20mg BID 60/ mouth $30.60 $ $9, Estimated Annual Expenses: $9, Estimated Lifetime Expenses: $236,839.20

14 CASE #2 - INFORMATION RE: Jane Doe SS# DOB: 01/19/1952 (63 years) DOI: 03/23/2009 WC Jurisdiction: CA Claim # Employer: WorldWind International INC. Residence: 1234 San Padre St., San Jose, CA Diagnosis: Left knee injury ICD-9 Codes: Not listed Medical Cost Projections Prepared By: GOOL, LLC Date Prepared: 10/23/2014

15 CASE NOTES Ø Apportioned 55% to the 03/23/09 injury, and 45% to non-industrial factors. Ø Future medical was to include physician visits (1-2 visits per year), medication, and at some point required steroid intra-articular injections and ultimately knee arthroplasty. Ø Impairment was to be addressed in supplemental report once x-rays were obtained and reviewed. 02/09/12 AME Supplemental Report: Revised opinion on appointment to the left knee; 35% to the 03/23/09 injury, and 65% non-industrial Provided final impairment of 32% WPI 09/12/12 AME Supplemental Report: Reviewed additional records and clarified Applicant s left knee reached permanent and stationary status on 08/05/10

16 Anticipated Future Medical Care Covered by Medicare Service/Treatment Frequency Reason Orthopedic/Neurological Follow-up Every 6 months Monitor function and degeneration of the injury site. Pain assessment and medication management with monitoring of efficiency and side effects. Viscosupplemental Injections - Left Knee Total knee arthroplasty - Left Knee 3 injections over life expectancy Once Manage pain and delay need for total knee replacement. Improve function of knee and decrease pain Physical Therapy 26 sessions over life expectancy Post operative rehabilitation. Treatment of flare up pain. X-Ray - Left Knee Every Year Monitor degeneration of the injury site. MRI - Left Knee 3 over life expectancy Monitor degeneration of the injury site. Laboratory - CMP and CBC Every Year Follow-up medication side effects / liver and kidney function. DME - Left Knee Brace Every 3 years Ambulation assistance and improved function. DME - Cane Every 3 years Ambulation assistance.

17 Set-Aside Recommendations Treatment Code Frequency Cost/Service Total Cost Ortho./Neuro. F/U Every 6 mo. $89.57 $4, Viscosupplemental Injections / LE $ $ TKA/Left Knee Once $22, $22, Physical Therapy / LE $66.42 $1, X-Ray / Left Knee Every Year $55.81 $1, MRI / Left Knee / LE $ $1, LAB / CMP Every Year $17.96 $ Lab / CBC Every Year $13.22 $ Venipuncture Every Year $3.60 $93.60 DME / Knee Brace L2795 Every 3 Years $ $1, DME / Cane E0100 Every 3 Years $25.76 $ Estimated Lifetime Expenses: $35,364.48

18 Future Prescription Drug Treatment Avg. Wholesale Pricing At the time of this review, Applicant was regularly prescribed Ibuprofen 800mg 3/ day. In anticipation of the left knee surgery, a four week course of narcotic pain medication was also allocated for the management of post-operative symptoms. During Applicant s projected life expectancy of 26 years, it is estimated he will need the following Medicare covered prescription drugs: Drug NDC Dosage Quan4ty AWP Price/Unit Total Cost Ibuprofen mg 270/qtr $0.07 $1,965.6 Oxycodone/APAP /325mg 140/4wk $0.06 $2,620.8 Total Costs: $4,586.40

19 Exposure Mitigation Techniques Before the loss happens: Look outside your Worker s Compensation program for robust wellness programs. Perform root cause injury analysis and engage safety professionals in injury prevention. Sign up for the approved MPN network offered by your carrier. After the loss happens: Keep lines of communication open with injured employee. Bring in a Nurse Case Manager to help explain the process to the employee and their options for treatment. Identify and track high-risk claims with older individuals. Ignoring the loss: If Medicare pays for medical expenses, but another entity was responsible to pay under a primary plan (including a worker s compensation plan), 42 U.S.C. Sect 1395y(2)(A), the Federal government has a cause of action against the entity responsible under the primary plan per 42 U.S.C. Sect 1395y(2)(B). The government is authorized to collect double damages in such an action against the entity which has failed in its responsibility per 42 U.S.C. 1395y(2)(B) and 42 U.S.C. Sect 1395y(3)(A).

20 Conclusion The long term outlook: More pressure from carriers on rate and premium to cover the increase cost of administration that comes w/ MSA process. Higher claims costs as the government looks for more ways to reduce Medicare costs. For programs that are written w/ large retentions, expect to see pressure from the carrier to drive up retentions as well as increase their premium costs.

21 Resources A proven cost-reduction strategy for the Medicare Set-Aside environment An ISO Crowe Paradis - PRIUM white paper August 2013 Minimize the Cost to Fund a Medicare Set-Aside By Reinaldo Alvarez, Esq.