Dealing With Medicare And Medicaid Liens When Settling A Workers’ Compensation Claim

Most people in the workers’ compensation business are now well aware of the need to consider Medicare’s interests when settling any workers’ compensation claim.  One thing that often goes unnoticed however, is the fact that Medicaid may also have an interest in a workers’ compensation settlement.  This is a brief overview of both programs, with a focus on Medicaid concerns and dealing with the administrative agency in Ohio that enforces Medicaid liens.

MEDICAID ISSUES

Medicaid is a state administered needs based health insurance program. The Social Security Act requires that states take all reasonable measures to ascertain the legal liability of third parties to pay for medical services furnished to a Medicaid recipient.

Ohio accordingly enacted Ohio Revised Code Section 5160.37, which gives the Department of Medicaid (“ODM”) a statutory right of recovery against the liability of any third party for the cost of medical care arising out of the injury.  The statute requires that a Medicaid recipient or their attorney must provide ODM with written notice after having either (1) initiated informal recovery activity or (2) filed a legal recovery action against a third party. This notice must be provided no later than thirty days after the initiation of the activity or action and must disclose the identity and address of the third party against whom the recipient has or may have a right of recovery.

O.R.C. Section 5160.37 further requires that no settlement where ODM has a right of recovery shall be made final without giving written notice to ODM and providing it an opportunity to perfect its right of recovery.   Under the statute, if the department is not given the appropriate written notice, the Medicaid recipient and the recipient’s attorney are liable to reimburse the department for medical payments made for claim related conditions.

The Ohio Tort Recovery Unit is responsible for the identification and recovery of Medicaid paid funds. In cases involving an injured worker who is receiving Medicaid you should contact the Ohio Tort Recovery Unit, 350 Worthington Rd, Suite G, Westerville, Ohio 43082; 614-242-1045 (phone), 614-242-1051 (fax), ohiotort@hms.com (email).  Further information can be found on the Ohio Tort Recovery Unit’s Website.

You can submit a Subrogation Recovery Information Form to the Ohio Tort Recovery Unit online via their website after submitting an authorization signed by the injured worker.

MEDICARE ISSUES

In the 1980s, Congress amended the Social Security Act to include the Medicare Secondary Payer Act (“MSP”), which effectively enacted Medicare liens.  In 2003, the government made it clear that self-insured entities were also included in the MSP when it passed the Medicare Act of 2003.   The 2003 revisions altered the MSP to expressly include self-insured entities as “responsible” parties obligated to reimburse Medicare.

All parties in a workers’ compensation case have responsibilities under the Medicare Secondary Payer laws to protect Medicare’s interests when resolving cases that include future medical expenses.  The Center for Medicare and Medicaid Services (“CMS”) is charged with enforcing the Medicare Secondary Payer Act.

CMS will review and approve Medicare Set-Aside proposals that meet the following criteria:

• The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
• The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00

It is important to keep  in mind that these are review thresholds only.  CMS has made it clear on multiple occasions that the settling parties have a responsibility to consider Medicare’s interests regardless of the amount of the settlement.

To obtain information regarding Medicare lien requirements, parties should contact the Coordination of Benefits and Recovery Center (“COBC”).  The COBC Call Center can be reached at 1-855-798-2627 between the hours of 8 a.m. and 8 p.m. Eastern Time Monday through Friday. Written correspondence should be addressed to Medicare-Data Collections, P.O. Box 138897, Oklahoma City, OK 73113-8897.

The Workers’ Compensation Medicare Set-Aside Portal (“WCMSAP”) allows electronic submission of Workers’ Compensation Medicare Set-Aside Arrangements. Registration is required to use the WCMSAP. Once a case is submitted to the WCMSAP, the parties can create a work-in-progress case; receive alerts regarding processing of the WCMSA; add additional documents to the WCMSA; and request a re-review.

Registration is required to access the WCMSAP. You can find information regarding registration at the CMS website: https://www.cob.cms.hhs.gov/WCMSA/assets/wcmsa/howTCOBCo/getStarted.html.  You can also contact the Electronic Data Interchange (EDI) Department at 1-646-458-6740 for issues related to the WCMSAP such as password resets, or the status of your WCMSAP account registration.  Proof of representation is required in order for the Medicare Secondary Payer Recovery Contractor to communicate with and provide information to a Medicare beneficiary’s lawyer.