Medicare Compliance: An Ounce Of Prevention is Worth a Pound of Cure!

1. Presented by:Thomas S. Thornton, IIICarr Allison100 Vestavia ParkwayBirmingham, Alabama 35216tthornton@carrallison.com (205) 949-2936 MEDICARE COMPLIANCE: An Ounce Of Prevention is Worth a Pound of Cure! Presented For: LTC RISK LEGAL FORUM

2. General Philosophy • Medicare should not drive how you defend or evaluate your case for settlement! • Your evaluation and exposure on any one claim should drive how you respond to Medicare!

3. General Philosophy Your exposure under the Medicare Act begins and should thus end with the execution of the Release! There Is Not a Right Way or Wrong Way; Just a Preferred Method to Address Medicare Compliance!

4. Problems Plaguing The Industry • We are Being Reactive as Opposed to Proactive • Attorneys • Claim Handlers • The Hayes Lawsuit • Mis-Information from Vendors • Mythical Level Of Compliance

5. Medicare Secondary Payer ActAnd Impact Upon Claim Program Section 111 Reporting and Ensuring Compliance When and How To Address Medicare’s Existing Lien When and How To Address Medicare’s Future Interest

6. Section 111 Reporting and Impact Upon Claim Programs!

7. Section 111 Reporting and Impact Upon Claim Programs! • Potentially Impacts Every Release • Section 111 Reporting Obligations: • Three Questions to be Asked: • Was the Claimant Ever or are they a Current Medicare Beneficiary? • Were Medicals Claimed or Released with the Settlement? • Was the Payment/Consideration (TPOC) Above the Section 111 Reporting Threshold?

8. Section 111 Reporting and Impact Upon Claim Programs! • Reporting Thresholds: Currently $2,000.00 and reduced to $1,000.00 on October 1, 2014 • Impact of SMART ACT • Impact of Beneficiary Status: • Medicare’s Existing Lien • Medicare’s Future Interest

9. Lien Reimbursement and Impact Upon Claim Handling Programs!

10. Lien Reimbursement and Impact Upon Claim Programs! • Section 111 Reporting Dictates Need for 100% Compliance • Do Not Care Who Reimburses Medicare’s lien! Just need assurance that it is Reimbursed • Problems Plaguing Industry • Cart before the horse!

11. Lien Reimbursement and Impact Upon Claim Programs! • Factors Impacting Medicare’s Lien Recovery: • Can not circumvent obligation to Medicare • $1,000.00 Exemption • Regulatory Cap on Medicare’s Recovery • Medicare Advantage Plan Recovery:

12. Strategies in Addressing Medicare’s Lien Exposure • Options for Addressing Lien Exposure: • 25% Reimbursement Option • Assume Responsibility of Lien • Pro Se vs. Represented • Assign Responsibility For Reimbursement: • Medicare Included as Payee • Withhold all proceeds • Withhold Percentage of Proceeds • Release All Proceeds with Percentage Held in Plaintiff’s Attorney Trust (Haro Decision)

13. Medicare’s Future Interest and Impact Upon Claim Handling Program

14. Medicare’s Future Interest and Impact Upon Claim Handling • Statutory Requirement? • Regulatory Requirement? • Medicare’s Claim Handling Manual? • Memorandum and Alerts!

15. Medicare’s Future Interest and Impact Upon Claim Handling • Mythical Level of Compliance Causes Confusion: • What is a Medicare Set Aside • September 29, 2011 CMS Memorandum • Region V’s MSP Regional Coordinator’s 2011 Handout • Medicare’s Advance Notice of Rule Making

16. Medicare’s Future Interest and Impact Upon Claim Handling Options With Addressing Medicare’s Future Interest on Liability Claims Do nothing; Informally address Medicare’s interest within the settlement documents without the involvement of a third party; ($0.00 Assessment) Involve a third party vendor to prepare an allocation report without submitting it to Medicare for potential approval; Obtain an allocation report and submit same to Medicare for approval.

17. Strategies Relating to Medicare & Your Claim Handling Program • Do Not Lose Sight of the Goal With the Claim • Know the Answer Before the Question Arises • Be Proactive and Not Reactive With Approach to Case Resolution

18. Strategic Approach To Claim Handling Protocols • Establish Protocols & Procedures to Negotiate and Resolve Files and Document thru Releases • Perform risk analysis • Understand Strategic Options to Achieve Compliance and Resolve Cases • Pro Se vs. Represented • Medicare’s Future Interest

19. Strategic Approach To Claim Handling Protocols Preparation for Settlement! • Confirmation of current (or former) Medicare status; • Strategy to Address Lien Reimbursement; • Reasonable assessment of Plaintiff’s future medical needs

20. Uh Oh Moments! • Medical Bill Reductions and Write-Offs • Reportable? • Documented through submission of bills • Loss of Consortium Claims • Employment, Retaliatory Discharge, Professional Lines Claims • Lack of Medical Treatment/Lien • Wrongful Death • Tendered Cases

21. Uh Oh Moments! • Not including the appropriate release langue or settlement package • Pre-litigation communication with Medicare • Damages In Excess of Settlement Offer • Offer of Judgment • Trials and Verdicts. Protecting Medicare’s interest!

22. MSP ComplianceWhere Are We Heading 1) Impact of the SMART Act On Claim Handling Programs • Regulatory Amendments and Proposed Rule Making • Judicial Developments and Trends

23. Questions • Be Proactive Not Reactive • Do Not Lose Sight of Goal of Claim • Do Not Allow Medicare to Dictate Value of Claim

24. Thomas S. Thornton, IIICarr Allison100 Vestavia ParkwayBirmingham, Alabama 35216tthornton@carrallison.com (205) 822-2006 www.carrallison.com www.uslaw.org ALABAMA - FLORIDA - MISSISSIPPI - TENNESSEE