Ask Annie: How Does it Work? ECS Lifetime Indemnification of Evidence Based Medicare Set-Asides

Question:

I work for a workers’ compensation insurance carrier and we’re considering using an Evidence Based MSA to settle out a case. I’ve heard that ECS offers lifetime indemnification to the parties settling a case with an EBMSA. Is this true, how does it work, and what else should I know about getting an EBMSA?

Answer

Great question. I’m happy to report that it’s true. ECS will indemnify the parties to the settlement up to the full settlement value for life if the claimant’s EBMSA funds are professionally administered by a reputable professional administration company.

Here’s how it works:

  1. Clinical, pharmaceutical, and legal experts collaborate to allocate future care and prescriptions based upon medical evidence (including traditional Standards of Care, Evidence Based treatment guidelines like American College of Occupational and Environmental Medicine and the Official Disability Guides) and not “because Medicare says so.” The end product is an EBMSA that satisfies the parties’ obligations to consider Medicare’s interest in their settlement pursuant to the Medicare Secondary Payer Statute.
  2. Professional administration of the EBMSA funds by a reputable professional administrator will lock in lifetime ECS indemnification of the parties’ up to the full value of the settlement should Medicare present a claim that the parties’ post-settlement plan improperly shifted the burden for future medical to the Medicare program.
  3. Once the case settles, ECS will verify the EBMSA funds have been deposited with the professional administrator and will issue the parties a Certificate of Indemnity.

Why ECS?

  • No additional charge for the indemnification– we charge the same price for a standard MSA as for an EBMSA, etc. Most other vendors require parties to pay a significant extra fee to provide the indemnification.
  • By not submitting the EBMSA to Medicare’s voluntary review process, we help parties preserve formal appeal rights should Medicare ever attempt to raise an issue about the amount set-aside.
    • ECS will walk “hand-in-hand” with the claimant through the formal appeals process.
    • Should ECS lose the appeal with Medicare, ECS will cover the difference between the EBMSA amount funded at the time of settlement up to the full settlement value.
  • Independent professional administration. Some vendors professionally administer the very funds they told the parties to allocate. ECS believes strongly that if we created an EBMSA with recommendations to protect Medicare’s interests and then held the funds for which we said were necessary, it could be perceived as a conflict of interest and may not be in the best interest of the parties.
  • No need to pay for additional ECS services for the Certificate of Indemnity to issue. Other vendors require you to:
    • Incorporate very specific language into your settlement documents, sometimes including a whole other agreement requiring additional signatures from the claimant, etc.; ECS provides suggested the language the parties are free to consider if they choose
    • Hire them to perform a settlement document review service; Settlement Document Review is an optional service the parties may request if they choose
    • Track down the parties after the court has approved the settlement for additional signatures to “activate” the indemnification / protection; once the settlement documents are approved and the funds have been deposition with the professional administrator, there are no additional signatures needed for ECS to issue the Certificate of Indemnity
    • Hire them to resolve conditional payments; Conditional Payment research and resolution is an optional service available to the parties if they choose
    • Prove you have reported the case to Medicare via Section 111 reporting; ECS does not require proof of Section 111 mandatory insurer reporting.

ECS’ MSA options allow parties to swiftly and economically resolve claims using our vast clinical and compliance resources to implement an evidence-based approach. Please reach out to your Regional Compliance Consultant with any questions.

Annie M. Davidson

Annie M. Davidson

Annie M. Davidson is the Senior MSP Compliance Counsel and Policy Strategist for ECS. In her role, Annie provides legal analysis to ensure the integrity and quality of ECS’ Medicare Secondary Payer (MSP) compliance services and related products. Prior to joining ECS, Annie practiced as an insurance defense attorney in her native Minnesota where she litigated workers’ compensation and liability insurance cases, particularly those involving MSP issues. She is admitted to practice law in the State of Minnesota and the United States District Court for Minnesota, and is a graduate of William Mitchell College of Law. Annie can be reached at annie.davidson@examworkscompliance.com or at 651-262-9618.

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