On August 30, 2012, the Federal District Court of Louisiana, Western District, LaFayette Division, published its opinion in Bessard v. Superior Energy Services, finding that there was no evidence that Mr. Bessard, his attorneys, any other party or any other party’s representative, were attempting to maximize aspects of the settlement to Medicare’s detriment. As a result, the court concluded that to the extent that Mr. Bessard receives confirmation from Medicare of any conditional payments made by Medicare for services provided prior to settlement, Mr. Bessard shall promptly reimburse Medicare for such conditional payments. In addition, Mr. Bessard shall allocate $6,701.00 out of the settlement proceeds for payment of future medical items or services, which would otherwise be covered or reimbursable by Medicare, related to the conditions claimed and released in the case.

Gregory J. Bessard was injured in a workplace accident on June 30, 2009. His case was settled amicably after lengthy negotiations. The defendant agreed to pay the plaintiff the sum of $785,000. The settlement called for Mr. Bessard to assume the obligation for payment of his future medical expenses, which were to be calculated through a MSA.

Although Mr. Bessard was not a Medicare beneficiary at the time settlement was reached, Mr. Bessard was receiving Social Security disability benefits in connection with the injuries sustained in the accident. As a result, various medical reports were accumulated and a MSA was prepared by Gould & Lamb.

Based on the information provided by Mr. Bessard’s treating physicians, utilizing the fee schedule applied in claims brought under the Longshore and Harbor Workers’ Compensation Act, Gould & Lamb determined that Mr. Bessard’s future potential medical expenses that would be covered by Medicare and that were related to the injuries claimed and released amounted to $6,701.00.

Although the parties wanted the MSA approved by CMS for purposes of complying with the provisions of the MSP and the commensurate regulations, the parties were concerned that the settlement could not be finalized and cited the delays associated with obtaining approval from CMS and the possibility that approval may not ever be forthcoming.

In an effort to avoid jeopardizing the settlement and to achieve compliance with the provisions of the MSP, the plaintiff and defendant jointly filed a motion for Declaratory Judgment seeking (1) approval of the settlement, (2) a declaration that the interests of Medicare are adequately protected by setting aside a sum of money to fund Mr. Bessard’s reasonably anticipated future medical expenses related to the injuries claimed and released in the lawsuit, and (3) an order setting that amount aside from the settlement proceeds and depositing it into an interest bearing checking account to be self-administered by Mr. Bessard.

The Court set the matter for an evidentiary hearing and ordered service to be made by the Clerk of Court on the Secretary of Health and Human Services, the chief counsel of HHS/OGC for Region VI, and the civil chief of the office of the United States Attorney for the Western District of Louisiana. By letter dated August 20, 2012 from the office of the United States Attorney for the Western District of Louisiana, the Court was advised that HHS/CMS would not participate in the hearing.

At the hearing, the Court heard testimony from Patricia Kent, staff attorney with Gould & Lamb LLC, who was accepted as an expert in MSA/MSP issues, and who explained how the MSA evaluation was prepared. Although the most recent reports from the physicians treating Mr. Bessard did not state that additional diagnostic testing was necessary or that Mr. Bessard would require future visits with his physicians or additional physical therapy, the standard applied by Gould & Lamb in preparing the MSA was to consider all reasonably foreseeable medical expenditures.

The Court found that the methodology used by Gould & Lamb to calculate the estimated future medical costs, as set forth in the MSA, was both reasonable and reliable. The Court further found based upon MS. Kent’s testimony, that the future services listed in the MSA were reasonably foreseeable, adequately considered Medicare’s interests under the MSP, and the amount set forth in the MSA adequately protected Medicare’s interests.

As the premier and most trusted MSP vendor in the country, this case again highlights the usefulness and benefits of Gould & Lamb’s comprehensive array of MSP services. In addition to Mandatory Insurer Reporting, Conditional Payment Resolution, Medicare Set Asides, Post Settlement Account Administration, Prescription Drug Program, Future Medical Costs Projections, and Life Care Plan services, Gould & Lamb also offers Settlement Language Guide, Settlement Document Review, MSP Exposure Analysis, and Expert Testimony services.

Gould & Lamb provides its clients with Medicare Compliance Services and Programs focused on reducing claim costs and positioning claims for settlement. To this end, Gould & Lamb has prepared a Settlement Language Guide to assist insurers and self insured entities navigate the complex sea of Medicare Secondary Payer compliance. The guide contains language for possible claims settlement scenarios with a description and analysis of possible actions. Once the Conditional Payment or Medicare Set Aside issue has been brought to light, Gould & Lamb will assist with recommending MSP appropriate and protective settlement language. If you have already produced settlement documentation that contains such language, Gould & Lamb will review same and make recommendations on any needed changes, additions, or deletions. Gould & Lamb also offers our clients detailed and specific to the claim analysis of all Medicare Secondary Payer exposure issues that may exist in your case. Gould & Lamb’s extensive and experienced MSP legal team will provide a written analysis, including statutory, regulatory, and case law citations, that outlines any Medicare Secondary Payer exposure and recommends solutions to any discovered potential problems or issues. Gould & Lamb also provides expert advice on MSP issues, available to provide expert testimony on any MSP issue at meetings, mediations, depositions, hearings, trials, or any other event our client deems our expert analysis helpful or necessary.

Download the MSP Compliance Protocols user guide today!

About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.

Gould & Lamb is a global leader of MSA/MSP Compliance Services in the country, serving domestic and international insurance companies, third-party administrators and self-insured entities.

General Information

The 67th Annual Workers’ Compensation Educational Conference and the 24th Annual Safety and Health Conference are just around the corner. Set for August 19 through 23, 2012 at the Orlando World Marriott, the conference will again focus on the national workers’ compensation and safety industries, serving as a gathering of national stakeholders to study and be educated on issues of common concern.  For the first time, the Conference program has expanded to a fourth day (Thursday, August 23) with a full 2-day breakout for mediators.

Program

As usual, this year’s program offers creative and innovative speakers from around the country. The hottest issues in workers’ compensation and safety will be discussed. All aspects of workers’ compensation and workplace safety will comprise the topics of discussion with breakouts for risk managers, regulators, safety professionals, health care providers, adjusters, insurance professionals, attorneys, medical case managers, professional employer organizations (employee leasing), temporary staffing, mediators, and medical office administrators.

Medicare Secondary Payer Act Compliance

Sponsored by Gould & Lamb, LLC, this year’s conference will again be the only national conference to feature a full-day breakout on the Medicare Secondary Payer Act and related subjects. One of the most difficult areas in handling workers’ compensation and general liability matters is understanding and dealing with the serious pitfalls that this expanding responsibility creates. The comprehensive breakout will clarify what has become an extremely complicated process that has created enormous issues for the workers’ compensation industry, soon to further expand into the general liability area.

Providing Clarity in a Land of Confusion

Program Moderator, Bret Cade, Executive VP of Sales at Gould & Lamb, LLC will lead the day long seminar. Planned presentations include Medicare Secondary Payer Act 101: The Reader’s Digest Version by Roy Franco, Esq., Principal at Franco Signor, LLC, The Eye in the Sky: Mandatory Insurer Reporting by Scott Huber, Vice President of Information Technology at Gould & Lamb, LLC and Jeff Gurtcheff, VP and General Manager at PMSI, Render Unto Caesar What is Caesar’s: Conditional Payments  Resolution by Wanda Reas, Esq., Partner at Znosko & Reas, P.A. and John Cattie with the Garretson Resolution Group, So Let It Be Written, So Let It Be Done: A Legislative and Case Law Update by Mark Popolizio, Esq., Senior Legal Counsel at Crowe Paradies and Roy Franco, Esq., Principal at Franco Signor, LLC, Seeing the Forest Through the Trees: MSA/LMSA Trends by Rafael Gonzalez, Director of Medicare Compliance & Post Settlement Administration at Gould & Lamb, LLC, Celia Mendez, Esq., Mediator & Attorney at Moreland & Mendez, P.A., and Cynthia Sage, Esq., Corporate Counsel at FCCI Insurance Group. The program will end with MSP Compliance in the Real World: A Roundtable Discussion where all of the previously mentioned speakers will be joined by Skip Brechtel, Chief Technical Officer at CCMSI, Wade McGuffey, Esq., of Goodman, McGuffey, Lindsey & Johnson, LLP, and the Honorable David Langham, Deputy Chief Judge of Workers’ Compensation Claims.

The program will:

• Provide much needed technical information on Mandatory Insurer Reporting, addressing its purpose and expounding on reporting triggers, errors and challenges, as well as the consequences enumerated by Section 111 of the Medicare/Medicaid SCHIP Extension Act of 2007.

• Present a comprehensive overview of the policies and procedures relative to the Medicare Secondary Payer Recovery Contractor (MSPRC), challenges in dealing with the MSPRC and consequences of not handling Conditional Payments appropriately.

• Give attendees with a thorough review of new legislative initiatives and cases decided from around the country on both workers’ compensation and liability claims related to Medicare Set Asides and Conditional Payments.

• Delve into current industry trends in workers’ compensation and liability Medicare Set- Asides, specifically regarding MSA submissions, MSA approvals, MSA pharmacy issues and MSA administration.

• Offer those in attendance the opportunity to listen in on a roundtable discussion bringing legal and claims’ experts together to discuss their trials, tribulations, methods and best practices in complying with CMS’ policies to take Medicare’s interest into consideration when settling past and future medical care.

According to the latest Social Security Old Age, Survivors, Disability Insurance and Medicare and Medicaid Trustees Report, despite the most recent legislative reforms, Medicare is still in both short term and long term financial distress. As a result, the Centers for Medicare and Medicaid Services (CMS), the federal agency which oversees the day-to-day administration of the Medicare system, has stepped up its enforcement of the Medicare Secondary Payer (MSP) Act. Resulting from amendments to the Act in 2003 and 2007, parties settling no-fault, workers’ compensation and liability cases must consider Medicare’s interests. Consequently, in-house corporate counsel and outside defense counsel have had to learn MSP basics.

MSP Education is Essential

However, in order to appropriately represent the insured and insurer’s interests, it is no longer sufficient just to know the basics of the MSP Act. It is time that all in-house corporate and outside defense counsel become significantly aware of mandatory insurer reporting requirements, the conditional payment reimbursement process, and learn how to determine whether a Medicare Set-Aside is appropriate. In order to assist with this endeavor, Gould & Lamb, the country’s premiere and most trusted corporate MSP compliance partner, has put together a 2-day comprehensive program focusing on mandatory insurer reporting, resolution of conditional payments, and Medicare Set-Aside allocations, approval, and administration.

2-Day MSP Conference

The program will:

Introduce those in attendance to the purpose of the mandatory insurer reporting process and will also discuss in great detail Responsible Reporting Entities (RRE) requirements when submitting information on a quarterly basis to CMS. Gould & Lamb experts will share their knowledge and experience in assisting RREs to submit information electronically on liability insurance (including self-insurance), no-fault insurance, and workers’ compensation claims where the injured party is a Medicare beneficiary.

Offer in-depth analysis of Medicare conditional payments, payments made by Medicare for medical treatment where a primary payer (insurer or self-insurer) has or may have an obligation to make such payment. Because primary payers include group health providers, workers’ compensation, liability and no-fault insurers and self-insured entities, Gould & Lamb experts will share their years of expertise in dealing with Medicare’s direct right of action against all primary payers responsible for making such payments, including the Medicare beneficiary, medical provider, physician, attorney, state agency or private insurer.

Explore the intricate details of Medicare Set Asides (MSA). From situations where claimant is a current Medicare beneficiary at   the time of settlement, to instances where the claimant is not yet a Medicare beneficiary, but can reasonably be expected to become Medicare-eligible within 30 months of the settlement, Gould & Lamb experts will discuss when and how Medicare expects its interests will be taken into account. The program will include specific presentations on how to arrive at a reasonable allowance for the future projected costs, and what may happen if such an allowance is not made in the form of an allocation or set-aside arrangement for future medicals.

Provide great insight on MSA administration and Special Needs Trusts (SNT) administration. Gould & Lamb experts will share their years of experience administering MSA accounts, making sure such funds are in fact only used to pay for claim related medical care, that Medicare would otherwise approve or cover, at the correct fee schedule. The program will also offer valuable information when dealing with Medicaid recipients, and the necessity for establishing and administering a SNT to protect claimant’s future Medicaid eligibility and thereby reduce insured and insurer’s potential liability exposure.

For more information on the Medicare Secondary Payer Educational Conference hosted by Gould & Lamb , visit the Event Homepage.

Download Gould and Lamb’s Medicare Secondary Payer Compliance and Protocols User Guide

Download the MSP Compliance Protocols user guide today!

About the Author: Rafael Gonzalez is Director of Medicare Compliance & Post-Settlement Administration. He brings over 20 years of experience in the Workers’ Compensation and Liability insurance industries with a specific focus on Medicare Compliance. Rafael has been responsible for all areas of Medicare Set Aside Allocations (MSAs) including the preparation of MSAs and their approval by the Center for Medicare & Medicaid Services.  At Gould & Lamb, Rafael’s duties include assisting clients with Medicare Compliance issues, specifically on Post-Settlement Administration and client education.

We at Gould & Lamb, LLC are excited to offer a new educational series focused on assisting industry professionals to achieve Medicare and Medicaid compliance. The conference, titled “Jackpot!” and themed to match the casino/convention venues where it will be held, is a two-day event that will be presented at four regional locations – New Orleans, Las Vegas, Atlantic City and St. Louis.

MSP Compliance requires industry professionals to remain educated and updated on current regulations and protocols to avoid any compliance issues and/or fines. Utilizing the wealth of resources available to Gould & Lamb and our highly-experienced team of executives and industry leaders, as well as respected experts from outside the company, presentations at the conference will provide attendees with the most up to date and in-depth information regarding all aspects of Medicare & Medicaid compliance.

There is a web of confusion in the insurance industry relative to MSP Compliance and parties to a settlement are gambling with Medicare benefits every day. We are offering this educational opportunity to address the complexities of considering Medicare’s interests. Our comprehensive program, presented by the most experienced subject matter experts, is sure to provide information for the protection of all parties, while protecting the future of the Medicare Trust Fund for all of us.

In addition to information and networking opportunities, the event will offer 12 CLE/CEU Credits. With topics ranging from Mandatory Insurer Reporting and Conditional Payments, to Medicare Set-Aside and Post Settlement Administration, we have made this conference a “must attend” for industry professionals, claims adjusters, attorneys, risk managers, settlement brokers, self-insured entities and third-party administrators.

For more information on this groundbreaking series, visit the Event Homepage.

About the Author: Deborah Pfeifle is the Chief Executive Officer at Gould & Lamb.  She has industry recognition for clinical excellence in claims management outcomes and for the development and application of clinical best practices for multi-lines of business. She has hands-on Medicare Set-Aside experience working closely with CMS, the Workers’ Compensation Review Center (WCRC) and the CMS Regional Offices. Deborah closely monitors the reconsideration process at Gould & Lamb for all MSAs in which CMS proposes a higher amount.

We have all experienced poor client service at one time or another. Have you received the “run-around”, having your calls transferred to a succession of people, none of whom could actually help you?  Or, have you received an openly rude or indifferent attitude regarding your complaints that left you feeling like taking your business elsewhere? These are client service scenarios that I can relate to!

During my tenure at Gould & Lamb, I have often asked whether we have left our clients feeling this way. In response to these questions, Gould & Lamb has initiated enhanced client service touch-points to make doing business with us a positive experience. We understand the unique needs of individual claims and the complexity of Medicare Secondary Payer (MSP) compliance. We appreciate your patronage and strive to improve our processes to make working with Gould & Lamb an easy and pleasant experience.

Your Dedicated Case Coordinator Understands Your Case

At Gould & Lamb, each of our clients has a dedicated case coordinator responsible for communication about products and client services that we offer.  The case coordinator provides a single-point of contact so you don’t get the run-around. In addition, our onsite Area Account Managers are able to provide face-to-face assistance with referral forms, answers to questions pertaining to the consideration of Medicare’s interest for claim settlements, future cost projections or life care plans for reserve setting or litigation-respectively and post-settlement management of a MSA or trust funds.

Our CMS submissions team now provides all clients with a regionally dedicated single-point of contact. The point of contact is responsible for managing an MSA from receipt through CMS determination. A partner now assists you with a successful CMS review and approval to close your claims.

Gould & Lamb Measures Our Performance to Ensure Exceptional Client Service

Gould & Lamb has invested in state-of-the-art technology to assist the Corporate Account Managers in providing analytic reports and service matrices to quantitatively and qualitatively measure Gould & Lamb’s performance.

In everything we do we seek to evaluate how our processes will benefit our clients. The first question asked is “How does this (process) make it easier for our clients to do business with Gould & Lamb?”

As we continue to enhance our client service focus, we are interested in your feedback and suggestions to help us work better for you.  We thank you for growing with us in 2011.  Send your comments to deborah.pfeifle@gouldandlamb.com