A life care planning expert witness is crucial in analyzing the intricacies of a case and clarifying these issues for the jury. The plaintiff attorney who both understands specialized Medicare settlement reports and also has a professional life care planning expert witness with experience in pre-settlement development and post-settlement issues comes to the settlement table prepared and confident.
With the enforcement of Medicare Secondary Payer regulations, plaintiff attorneys, settling both worker’s compensation claims and liability cases, are required to consider Medicare’s interests. This consideration includes repayment of past conditional payments. Additionally in some cases, future anticipated medical care may be needed. The Center for Medicare and Medicaid Services (CMS) published guidelines for compliance with the Medicare Secondary Payer regulations for Worker’s Compensation claims and liability cases. Specific information can be found on CMS or Medicare websites.
In my experience as a life care planner expert witness, I’ve determined that these 3 types of special reports are useful when settling complex medical cases. These cases are: Retrospective MSA, Non-Covered Allocation, and Prospective MSA.
1) Retrospective MSA
A common misconception is that CMS requires an MSA for Worker’s Compensation cases meeting certain criteria (on Medicare or soon to be). The fact is CMS allows an MSA to be submitted allocating a portion of the settlement funds for future medical treatment. This approved or non-approved allocation is in lieu of the whole settlement being subject to spend down for future treatment before Medicare becomes responsible. CMS published guidelines for writing the allocations: 2 years of past medical and pharmacy records, payout history, and life care plans if available. The allocations are written using past (retrospective) medical information and standard of care projections.
2) Non-Covered Allocation
The MSA, however, only considers those items covered by Medicare. Some notable non-covered items include home attendant care, home modifications, transportation needs, certain medications, hearing aids, TNS units, and any bathroom durable medical equipment. For clients having these needs, the out-of-pocket expenses become significant. And for all clients, whose insurance coverage is transitioning from Worker’s Compensation to Medicare, the premium costs for basic coverage, prescription drugs, and co-pays are estimated to be over $4,000 per year. Any case settling with an MSA needs a non-covered allocation report detailing any/all out of pocket expenses anticipated. Having both an MSA and an NCA allows the plaintiff attorney, and the client, to make an informed decision regarding settlement of future medical care.
3) Prospective MSA
Currently, CMS has no guidelines established regarding the use of MSA in liability cases but is planning on reviewing this in the near future. Some plaintiff attorneys use a voluntary, post-settlement MSA for selected situations. But using a retrospective MSA (see above) may not be the best choice for liability cases involving pre-existing conditions, co-morbidities, and resolved medical diagnoses. A prospective MSA is one that is written following conferences with treating and specialty physicians, client assessment, and medical projections based on a higher level of medical certainty. Unlike Worker’s Compensation cases, where the WC fee schedule is used, the liability MSA may require the Medicare fee schedule instead.