Medicare Set Aside Protocol in the WDNY
Jeff Signor
May 6, 2011

Today I had the honor of presenting on the topic of Medicare Secondary Payor Compliance with Robert Trusiak, Esq, Assistant US Attorney for the Western District of New York.  We presented at the headquarters of the Erie County Bar Association, and the presentation was sponsored by the Western New York Chapter of the Women’s Bar Association.  The protocol is set forth in complete detail, below.

A group of local and national practitioners has been working with Robert to arrive at a way to secure a level of certainty when settling larger exposure cases that involve a Medicare beneficiary wherein future medical treatment is anticipated related to the settling tort.  This protocol is in its infancy, and it is a document and process that may change depending upon volume and need.  It is safe to say, however, that at least one office within the Federal Government is cognizant of the need for finality on this important topic.

Jeff Signor, Principal of Franco Signor LLC

Western District of New York Medicare Secondary Payor Protocol

Application for Medicare Secondary Payor (MSP) compromise with regard to Medicare concerning future medical treatment must be made jointly by the Medicare beneficiary, or his representative, and the primary plan. Prior to any application filed with the U.S. Attorney’s office for the Western District of New York (WDNY), Medicare must have been notified of the pending liability claim, the settlement of same and the letter from the Medicare Secondary Payor Regional Contractor (MSPRC) that the conditional payment obligation concerning repayment for historical medical items and services related to the tort was resolved or provide adequate assurance to that effect.

The application for MSP compromise concerning payment for the future medical items and services related to the tort shall include:

1. A copy of the MSPRC letter stating the matter concerning repayment for historical medical items and services related to the tort was reviewed and resolved or provide adequate assurance to that effect.

2. Proposed Liability Medicare Set-aside Arrangement concerning payment for the future medical items and services related to the tort (LMSA)1

3. An agreed copy of the settlement agreement subject to completion of the MSP obligations.

4. A joint statement from the applicants that warrants the following:

a. The value of the agreed settlement equals or exceeds $350,000.00.

b. The plaintiff is a Medicare beneficiary as that term is defined under 42 C.F.R. §400.202 c. The Centers for Medicare and Medicaid Services (CMS) was  requested to approve the LMSA, but no substantive response has been received for at least 60  from the date of the letter to CMS; and

d. An affidavit from the preparer of the LMSA that it is true and correct based on the Medicare beneficiary’s medical records and the injuries being released as well as in conformance with the WCMSA submission checklist as published by CMS. See https://www.cms.gov/WorkersCompAgencyServices/Download/samplesubmission.pdf.

Subsequent to the application by the U.S. Attorney’s Office for the WDNY, the U.S. Attorney may request additional information from the parties, including, but not limited to, a request for an additional LMSA(s), and upon receipt of all required information, issue a Release. The release issued by the U.S. Attorney’s Office for the WDNY will compromise the LMSA obligations related to the settlement, judgment, award or other payment.

Exclusions: The WDNY MSP Protocol is not available for liability cases involving mass torts. This protocol confers no substantive rights and may be used or withdrawn at the unilateral discretion of the United States Attorney’s Office of the Western District of New York. This is a voluntary process and not policy of the CMS.
1 Set-Aside Arrangement – An administrative mechanism used to allocate a portion of a settlement, judgment or award for future medical and/or future prescription drug expenses. A set-aside arrangement may be in the form of a Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA), No-Fault Liability Medicare Set-Aside Arrangement (NFSA) or Liability Medicare Set-Aside Arrangement (LMSA).

For more information or questions regarding the Western District of New York, Medicare Secondary Payor Protocol, please contact:

Robert G. Trusiak                              Jessica Rogers

(716) 843-5847                                 (716) 843-5700 Ext: 634

Robert.G.Trusiak@usdoj.gov      Jessica.Rogers2@usdoj.gov