Senator Bill Nelson, D-Florida has co-authored Senate Bill 3079 with Senator Portland, R-Ohio to help clarify the Medicare Set Aside process in workers’ compensation cases. The bill is currently assigned to the Senate Finance Committee with the hopes that it will make more legislative progress than a similar bill introduced two years ago.
Current regulations require Medicare beneficiaries (or some soon to be Medicare beneficiaries) take Medicare’s interest into consideration when settling workers’ compensation cases involving injuries expected to need ongoing medical treatment following the settlement. It is not good public policy for injured workers to settle workers’ compensation claims with insurance carriers and then shift to Medicare the burden of paying for treatment of the work injury. Consideration of Medicare’s interest is normally accomplished through the settlement agreement which designates a portion of the settlement proceeds be used to set up a Medicare set-aside trust account in the injured workers’ name. Post-settlement medical expenses for the work injury that are of the type Medicare covers are then paid from this account until depleted. Once properly depleted, Medicare then becomes primary for treatment of the work injury. Medicare knows if the account has been properly depleted because of the requirement that injured workers submit a yearly accounting of what has been paid from the account. If the account has not been properly depleted, the injured worker will be denied coverage by Medicare for treatment of the work injury.
Confusion and frustration comes into play when Medicare reviews the proposed set aside amount in the settlement agreement and requires funding of a different, often increased, amount. Settlement agreements can be significantly delayed or even fall apart over such requirements. Post-settlement administration of the account is also frustratingly confusing for injured workers. Requirements that medical expenses paid from the set aside trust account be paid at a reimbursement rate equivalent to the state’s work comp reimbursement rate are unrealistic and unworkable for injured workers. And, the yearly accounting submission to Medicare is a nuisance for both the injured worker and Medicare.
Senate Bill 3079 would essentially force the Center for Medicare and Medicaid Services (CMS) to recognize provisions of each state’s workers’ compensation laws regarding settlements, and would allow injured workers to pay Medicare’s share of future medical expenses upfront in lump sum instead of having to do yearly accountings of payments from the set-aside trust account for potentially the rest of their lives. The ultimate goals of the bill are to reduce risks of settlement delays or obstacles, reduce administrative costs overall, and still prevent cost shifting to Medicare of the expenses related to the future treatment of work injuries.
- Kimberly J. Syfrett
Attorney at Law