Keefe, Campbell & Associates, LLC

Editor’s comment: Last week, we published an article about self-administered MSA trusts. We were stated:

We caution our readers the injured worker has to be advised Medicare Set-Aside monies cannot be used until the worker is eligible for Medicare benefits. Once the worker is eligible to receive Medicare benefits, the monies supplant the federal benefit–the monies have to be used to pay Medicare-covered medical or other expenses related to the work injury or management of the MSA until they are used up. Most important, the injured worker has to annually report what they do with the money to CMS.

Fran Mohrmann of Travelers Insurance who is one of the top Medicare/CMS/MSA folks in the U.S. claims industry pointed out this statement above may have been accurate five years ago but it isn’t accurate now. She cited language from the CMS 2005 memo which states:

Q3. Use of WC Settlement Funds Prior to Medicare Entitlement – May workers’ compensation settlement funds attributable to future medicals be used prior to Medicare entitlement?

A3. For claimants who are not yet Medicare beneficiaries and for whom CMS has approved a WCMSA, the WCMSA may be used prior to becoming a beneficiary because the amount was priced based on the date of the expected settlement. Use of the WCMSA is limited to services that are related to the workers’ compensation claim or settlement and that would be covered by Medicare if the individual were a Medicare beneficiary. The same requirements that Medicare beneficiaries follow for reporting and administration are to be used in the above cases. The CMS will not pay for any expenses related to the workers’ compensation illness or injury until a self-attestation document or a full accounting of all monies expended from the WCMSA are sent to the lead contractor upon Medicare entitlement. At that time, the lead contractor will adjust the WCMSA record to reflect the expenses paid prior to entitlement.

As always, our goal is to get things right and kidding aside, Fran has an almost encyclopedic recall of such government minutiae. We again salute her. If you ever need to contact Fran, send a reply and we will direct it to her for response.

What is happening out there in the real world is lots and lots of workers’ comp claims are being settled with WCMSA’s where the injured worker or their family are being given a sometimes large MSA trust account that has been approved by CMS for use to pay work-related medical expenses. Some claimant attorneys were advising their clients these funds are “part” of the settlement—that advice is sort of right and sort of misleading. It is misleading if the worker thinks they can take the money and casually use it for anything they want. Nothing can be farther from the truth. All monies in the WCMSA have to be used carefully and has to be reported annually to the Feds. Failure to do so may result in a claimant being audited and sued by them—and once John Q. Injured Worker gets into a problem with the Feds, they are certain to turn around and want to sue the attorney or insurance carrier/TPA if they can point liability at them. We recommend caution be used at every step of this path.

We have also heard of claimant attorneys who have sought to take a fee on the amount of the WCMSA—such a practice is specifically barred by U.S. law. For example, if the settling parties submit a WCMSA proposal to CMS which indicates claimant will need $100,000 worth of work-related medical expenses that would otherwise be reimbursable under Medicare and the settling parties assert it will cost $20,000 in administrative and attorney fees to establish and administer the Medicare set-aside arrangement proposal, CMS will only review the reasonableness of the $100,000 figure. CMS will not review whether or not the $20,000 in administrative and attorney fees are reasonable nor will CMS permit the settling parties to add $20,000 amount to the $100,000 WCMSA amount. Therefore, if CMS approves the proposal for a $100,000 WCMSA, the settling parties administrative and attorney fees cannot be charged to/against the WCMSA. We have also not heard of any rulings where an Arbitrator or the Illinois Commission has approved a settlement where the claimant attorney is seeking a fee on the future medical bills that have not yet been paid.

We caution our readers the injured worker has to be advised Medicare Set-Aside monies cannot be used until the worker is eligible for Medicare benefits. Once the worker is eligible to receive Medicare benefits, the monies supplant the federal benefit–the monies have to be used to pay Medicare-covered medical or other expenses related to the work injury or management of the MSA until they are used up. Most important, the injured worker has to annually report what they do with the money to CMS.

CMS recommends non-professional administrators look to Medicare’s publications, such as “Medicare and You,” for general guidance about Medicare issues. This document is available from their offices and on the web at http://www.medicare.gov/Publications/Pubs/pdf/10050.pdf. You may note this lengthy document does not directly address the issue that is the subject of this article. This document and any of Medicare’s other publications, are available from local Social Security office; or from Medicare, by calling 1-800-633-4227 or by visiting Medicare’s web site on the Internet at www.medicare.gov.

We are advised the folks who set up the WCMSA generally provide pamphlets and forms for the injured worker or their families to understand the rights and responsibilities they face in this process. In pro se settlements, we recommend the WC claims person discuss the issues with claimant and document those discussions to protect yourself from future liability. For lawyers on both sides who are involved in a settlement with a self-administered MSA, we suggest you insure claimant has been fully advised about the requirements.

For the statutory outline of what is going on, Medicare regulations found in Title 42 of the Code of Federal Regulations §411.46 state Medicare will not pay for covered medical services related to the work-related injury until the WCMSA funds have been exhausted. All WCMSA funds must be used to pay for all Medicare-covered services and supplies related to the work injury. Examples of some items that Medicare does not pay for are: acupuncture, routine dental care, eyeglasses or hearing aids. Therefore, these items can not be paid from the WCMSA account. If payments from the WCMSA account are used to pay for services other than Medicare-allowable medical expenses related to medically necessary services or supplies, Medicare will not pay injury related claims until these funds are restored to the WCMSA account and then properly exhausted.

A CMS Medicare contractor will monitor all expenditures from the WCMSA account upon receipt of the annual self-attestation letter the injured worker is required to submit. Once the lead contractor has confirmed WCMSA funds have been exhausted appropriately, Medicare then begins paying for Medicare covered-services related to the work-related injury.

Establishing and Using a Medicare Set-Aside Account

As part of the workers’ comp settlement, WCMSA funds are placed in an interest-bearing account, separate from the worker’s personal savings or checking account. This is typically done by the Medicare Set-Aside provider who prices the trust and sets it up with funds or an annuity paid for by the insurance carrier/TPA. That provider should also outline what the injured worker is to do with the monies, along with when and how to spend them and how to report all of it to CMS on an annual basis.

Record Keeping

As an administrator of the self-administered WCMSA account, the injured worker is responsible for keeping accurate records of payments made from the account. These records may be requested by CMS’ lead Medicare contractor as proof of appropriate payments from the WCMSA account.

The injured worker may use the WCMSA account to pay for the following costs directly related to the account:

• Photocopy charges
• Mailing fees/postage
• Any banking fees related to the account

Annually, the worker must sign and forward a copy of the form providing self-attestation that payment from the WCMSA account was made appropriately for word-related injuries that would otherwise be reimbursable by Medicare. The annual accounting has to be submitted no later than 30 days after the end of each year, beginning one year from the establishment of the WCMSA account. Annual self-attestation should continue through depletion of the WCMSA account to the CMS lead Medicare contractor.

CMS policies further restrict the use of MSA funds. Payment of fees for attorneys, trustees, custodians and administrators, as well as those of any other professionals engaged to assist in administration of the MSA, including any medical claims administrator or third party administrator, may not be made from the funds in the MSA. Separate arrangements must made for payment of those fees as part of the WC settlement.  Also, the funds in the MSA may not be used to pay premiums for Medicare supplemental (“Medigap”) insurance for the beneficiary.

In the case of non-professionals administering WCMSA’s, CMS will accept a completed annual self-attestation form in which the WCMSA administrator verifies all expenditures were for work-related medical expenses of the type normally covered by Medicare. CMS does reserve the right to demand and receive a complete accounting at its discretion. CMS policy requires the set-aside amount approved by CMS to fund a WCMSA must be placed in a separate interest bearing account.

State Law Requirements

CMS takes the position non-professionals administering WCMSA’s are subject to the same standards and duties as professional fiduciaries. Therefore, it is safe to say that anyone administering any type of MSA must comply with all applicable state trust and fiduciary laws.

Typical fiduciary powers include, but are not limited to:

• The power to invest/reinvest in securities such as stocks, bonds, or other property, including purchase/sale of annuities, life estates, remainder interests, options on securities, insured money market funds;
• The power to hold investments in the name of a nominee;
• The power to make distributions of the assets of the trust or custodial arrangement in money or in kind, or partly in money and partly in kind;
• The power to retain any property (whether or not income producing) that may be transferred to the trust or custodial arrangement;
• The power to borrow money for any purpose connected with protection, preservation or improvement of the trust or custodial arrangement, or enhancement of the benefits to beneficiaries; and the power to create one or more mortgages on, or pledges of, any part or all of the property held in the trust or custodial arrangement;
• The power to pay, compromise or adjust any claims by or against the trust or custodial arrangement;
• The power to pay tax obligations of the trust, custodial arrangement or beneficiary from assets held by the trust or custodial arrangement;
• The power to execute, acknowledge and deliver any and all instruments in writing that may be advisable or necessary to carry out any of the trustee’s or custodian’s powers and duties; and
• Other powers that may be allowed or granted under state law or in the governing trust or custodial agreement itself.

In making investment decisions, an MSA fiduciary must consider that the funds in the MSA must be highly liquid; and that there is little, if any, risk tolerance. The set aside funds in the MSA must be available for predicted future injury-related medical expenses of the type normally covered by Medicare. In addition, unexpected and significant medical expenses can, and often do arise.

CMS only requires MSA assets be placed in an “interest bearing account.” However, state fiduciary and trust laws require administrators to exercise due diligence in deciding on any investment of MSA assets. This requires a careful investigation and comparison of available investments, including analysis of each investment’s individual characteristics and performance history. Non-professional administrators are strongly advised to seek the help of a professional, certified investment advisor in choosing an appropriate investment portfolio for MSA assets. CMS does not require that MSA’s be administered according to any formal written instrument, such as a trust or custodial agreement.  As a result, many non-professional SMSA administrators act with only CMS’ self-administration guidelines as a reference.

Tax Requirements

IRC §104(a)(2) provides damages received on account of a physical injury or illness, including WC settlement proceeds, are excluded from the taxpayer’s income. Placement of the award into an MSA should not alter that exclusion. Therefore, the receipt of WC settlement proceeds will not result in income tax liability to the claimant or the claimant’s MSA. If the settlement is structured to provide payments over a period of time through a qualified annuity under IRC §130, even the interest portion of the annuity payment is excluded from taxation under IRC §104(a)(2). However, if the settlement is paid in a lump sum, only the lump-sum portion is excluded from the taxpayer’s gross income; the claimant is taxed on any interest earned. If the claimant accepts a lump sum in settlement of a WC claim and subsequently purchases an annuity to fund the MSA, the interest portion of the annuity payments will likewise be taxable to the claimant.

Because the claimant is treated as the owner of the MSA for income tax purposes, and is taxed on the net earnings of the MSA, regardless of whether any of the income was actually distributed, the payment of the claimant’s income tax by the MSA should not constitute additional income to the beneficiary. Further, CMS does not currently prohibit the payment of taxes from WCMSA’s.

We appreciate your thoughts and comments or please feel free to post them on our award-winning blog.

In a second inquiry, we also asked about the repeated question we receive about whether claimant attorneys in Illinois or any state can take an attorney fee on an MSA value.

Editor’s comment: We don’t like to name names in the Update but if you ever have a wildly complex question, she is the best of the best of the best on this topic. She gave us permission to print the following thoughts for your consideration. If you want her name and contact information, send us your contact information and we will forward it along.

Her thinking on these two topics is:

A. If you want a reversionary clause, you’ll need to hire a custodian because the $$ goes directly to the claimant in self-administered MSA’s. Have fun getting it back from the estate.

Custodial fees are $500 to $2000 a year, so a custodial account (trust) is usually reserved for large (+$150,000) MSA’s. The next problem is a large MSA is usually funded with an annuity. The most cost effective annuities pay for life only. That means that if the claimant dies, the annuity stops paying into the trust and all that’s left is usually about 1-2 years worth of funds.

If you want the reversionary clause, you would want to spend the extra money and purchase an annuity with a minimum guarantee period. There are tax implications for the funder (the insurer or self-insured employer) if annual annuity payments revert to them.

Most carriers only allow reversionary clauses when you pay in a lump sum or use a “life only” annuity.

B. As to attorney’s fees on MSA values, none of the states she does business in allow the attorneys to take a fee on the MSA (we are unaware of any state that does). Medicare demands all money go to the claimant’s future medical bills. They don’t care about the role of the attorney in reaching the settlement.

Medicare won’t even allow you to include the custodial fees in the calculation of the “total settlement”. They are expense dollars, not medical payments. That’s a technical issue that only matters to the payer and Medicare. The “total settlement” value determines whether the case meets the CMS review threshold.

Please send us your thoughts and comments on these topics in managing and creating MSA trusts.

Editor’s comment: Back in April, CMS issued a memo detailing its new drug pricing plans and putting a hard initial start date of June 1, 2009 into place. What we end up with is another scheme by the federal powers-that-be that may end up costing U.S. business buckets of money.

Anyone familiar with workers’ compensation settlements should be familiar with the concept of a Medicare Set Aside (MSA), and the government agency that approves them, the Center for Medicare & Medicaid Services (CMS). In the most basic terms, Medicare is a mandatory, federal government provided, medical insurance program for the disabled and Americans aged 62.5 and older. When a worker who is near that age is about to receive a workers’ compensation settlement of more than $25,000.00, the feds require a “set aside” of money to pay Medicare back any future costs it may incur that would otherwise be due to the underlying work injury.

After former President Bush passed the Medicare Part D bill into law back in 2006, everyone in the workers’ compensation industry knew that as soon as a form of implementation was concocted by our government overseers, prescription drug benefits would begin taking up a chunk of any MSA monies. It only took 3.5 years for the Feds to come up with what could potentially be the most outrageous “back door” penalty on employers we have seen in quite some time: average wholesale pricing (AWP).

Like the titles for most things the federal government wants to force feed you, it sounds reasonable on its face. Believe us when we tell you it is anything but. AWP is a pharmaceutical industry term which refers to the average price at which wholesalers report they sell prescription medication to customers. Right off the bat this gets confusing as there are several published lists of average wholesale pricing, but not all of the manufacturers provide data to all publishers, so the lists vary and there is no definitive standard.

The more disconcerting effect of AWP is that it is reliant on manufacturer reporting. Have you ever shopped for an automobile? Notice how the “sticker price” on the window is much higher than what one would expect to pay for the vehicle? Well, that is the type of figure AWP is based on. It is just like the sticker price on a car in a lot—it is the “manufacturer’s suggested retail price” but it is never the price paid by a savvy customer. Much in the same way medical insurance policies are able to discount medical services, the actual price of any drugs is the AWP less some sort of negotiated discount applied. The more buying power the purchaser has, the lower the final cost of the medication.

The big problem here is CMS will be requiring cost to be based on the AWP, so insurers are losing out on the benefit they already had built into place of the “haggling” they were able to do. Essentially insurers will lose out on the cost reduction they could achieve on the open market. Once you understand how much prescription medication can be required for long-term treatment in some cases, this becomes a gigantic cost increase that may effectively remove the option for insurers to settle claims. They would be better off leaving medical rights open, trying matters and paying the reduced cost of prescription medication using their much lower negotiated fees. There may also be an underlying problem with states that have already regulated prescription medication costs within a fee schedule, such as California. How can the feds justify implementing an essentially unilateral cost increase for already defined state law remedies? Our guess is the dispute may be resolved in a court of law.

Sounds a little like the debacle we had to deal with here in Illinois when we got the “benefit to business” of the medical fee schedule, doesn’t it? We caution, along a similar note to issues Illinoisans are facing with that delightful piece of legislative balderdash, what happens when drug companies begin inching their AWP up, while simultaneously offering larger discounts to insurers on the open market. In a  case like that, the MSA costs will continue to rise, while the actually market cost won’t. As we said above, this is probably all going into expensive litigation.

On a practical note, these changes go into effect on June 1, 2009, so if you have a case that is lingering waiting for an MSA, please do yourself a favor and get all the necessary paperwork submitted prior to May 25, 2009 to be safe. We have been told that if the MSA application is submitted prior to the deadline, it will not have to take the new pricing into account.

If you have thoughts and concerns about average wholesale pricing or issues relating to MSA’s, please send a reply. This article was drafted by Arik D. Hetue of our office.