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The Congressional Failure to Understand Medicare

Congressman Dennis Ross (Republican – Lakeland, Fl) spoke to the National Association of Medicare Set Aside Professionals (“NAMSAP”) convention on Friday, March 30, 2012.  Congressman Ross’s topics were Medicare liens and Medicare Set-Asides.

Note: I started this post as a recap of Congressman Ross’ talk with NAMSAP – but it turned into an 1111 word rant and opinion piece on the broken MSA system and the government’s failure to recognize it.

Congressman Dennis Ross (R – FL)

Congressman Ross began with a short discussion of HR 1063, the Strengthening Medicare and Repaying Taxpayers Act, or, “SMART.”  This act has been on the proverbial table for a while.  It has gone no where and Congressman Ross implied it is unlikely to get to a vote.  The Congressman’s frank discussion of SMART was a welcome departure from any politicized discussions; however, he lacked sufficient knowledge regarding the actual bill.

Throughout his lecture, Congressman Ross would mention Medicare Set Asides (“MSAs”), but the SMART Act refers to Conditional Payments (past-medical Medicare liens) only.  He also appeared to misunderstand the purpose of a Medicare Set Aside (even after making a joke that most congressmen would ask if an MSA is a medical savings account).  While I was disappointed with Congressman Ross’s lack of knowledge on the subject, I did see good come from his desire to see change.

The Congressman’s lack of knowledge on the subject shows the entire House & Senate likely lack the requisite background to cause real change.  They see one problem, but they don’t see another:

The first problem is the time and effort involved in getting Medicare lien information.  The second problem is the amount of funds Medicare loses out on in Workers’ Compensation case Medicare Set Asides.  SMART is designed to correct the first of those problems.  It might.  But it won’t become a law because it does not assist in generating revenue for the government.

The MSA Problem

But what about MSAs?  Why doesn’t anyone want to fix that broken system?  Shouldn’t the MSA system for Workers’ Compensation work before CMS tries to expand it to liability?

As of April 2, 2012, MSAs are accepted in the Workers’ Compensation community.  They are a point of contention amongst those involved in the Liability community.  An MSA is designed to protect Medicare’s future interests as it is never the Primary Payer; however, after an MSA is set up, most are “self-administered.”  This means the MSA funds go to the plaintiff who might never use those funds to protect Medicare. It also means that the MSA process generates revenue for the MSA professional community and wastes government funds.

If Congress wants a law that generates revenue – why not create something where the MSA process is actually useful?  The problem now is that MSAs are too hard to administer and are frankly unfair to the plaintiff.  They require the plaintiff to pay full billed amounts for care that Medicare would only pay pennies.  Congressman Ross continuously said the only way a Medicare lien bill will pass is if Congress can see it as a revenue generator.  My notes when he said that for the 5th or 6th time:

He has no idea how little of MSA funds are collected … I wish we had yearly prepayment of MSA funds to CMS and no need to worry about paying bills – it saves settlement funds by allowing Medicare rates.

Again – the above is from my own notes.  Some plaintiffs might not like this method – but it accomplishes the goals of the lawsuit while acting as a safe harbor where they could not lose Medicare coverage.  The plaintiffs’ attorneys wouldn’t mind as the MSA remains part of the case and their fee isn’t cut.  The defense attorneys would see status quo – perhaps slightly smaller settlements.  Even the MSA professionals would like this method because they would still get to prepare the highly complex (and expensive) MSAs.  Finally, Congress is ecstatic because it generates revenue (right, Congressman Ross?).

Both the MSA system  and the conditional payment recovery systems are broken.  SMART attempts to fix one of those, but its inability to fix the MSA system shows Congress’s lack of understanding in Medicare’s recovery systems.  Congressman Ross meant well.  My notes don’t indicate it, but his inability to comprehend the problems shows us why those problems exist, and what we need to do to fix the Medicare system.


Due Process for Medicare Liens

Finally, Congressman Ross mentioned a need for a “due process procedure” in Medicare liens.  I don’t think he meant to say one does not exist.  There are administrative processes for both conditional payments (via the MSPRC) and MSAs (via regional CMS offices).  The processes are slow.

I think he generally was referring to the system the SMART Act wants to create.  One where Medicare liens can be known prior to settlement.  Quite a few subrogation companies will guarantee liens for 30 or 60 days to encourage settlement.  Medicare does not yet.  That sometimes allows surprise payments to increase a Medicare lien.  SMART would create a system where final liens could be procured prior to settlement.  Beyond that system, there is a well-defined due process procedure.  It requires multiple administrative appeals – but it usually works.

Referring to MSAs, Congressman Ross likely meant a faster turnaround time.  The average MSA response time is 179 days.  That means CMS takes 179 days to respond to approval of an MSA.  Like Congressman Ross, I would like to see an improvement in that response time.  The courts would like to see that improve to clear out their dockets.  Even CMS would like to see that time improve, but how?

Again, I point to the general assumption that most MSA funds never are used for medical bills.  This means Medicare spends millions (perhaps billions) on care it shouldn’t pay.  It means CMS spends millions on a system that generates little, if any, revenue.  If CMS spent more time creating a system where the MSA funds are paid directly to it, it would have more funds to create bigger staffs.  It would hopefully recoup more MSA funds as a result.


What Did Congressman Ross Teach NAMSAP?

The point of this blog post was to recap Congressman Ross’s discussion on Medicare liens and MSAs.  It took a few tangents to get to a point.  But maybe that is the point.  Congressman Ross taught us that Congress won’t care unless changes improve revenue.  There are no changes to the conditional payment system that would increase revenue.  There are plenty of changes we can make to the MSA process.

Until the time that changes are proposed, LRS will be right here to assist you with driving down Medicare liens, creating MSAs, and assisting with any other subrogation matters stagnating over your cases.  Please contact us for any lien resolution support or assistance.  In addition to Medicare lien resolution, we can assist you with Medicaid lien resolution, ERISA subrogation, private insurance companies’ liens, and more.


Ryan J. Weiner
Co-Founder Lien Resolution Services
This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

About Ryan J. Weiner

Co-Founder of Lien Resolution Services, LLC, a national healthcare lien resolution firm. Our goal is to assist in the fair administration and resolution of healthcare liens on personal injury cases. Please visit our website for more information: www.lienresolutionusa.com.

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