NAMSAP (the National Alliance of Medicare Set-aside Professionals) held it first annual meeting and educational conference November 11, 2005 in Orlando, Florida. Approximately 75 persons attended including attorneys, life care planners and structured settlement professionals.
NAMSAP, with 139 charter members, represents an important new settlement planning organization. NAMSAP exclusively addresses the issues and challenges of the Medicare Secondary Payer (MSP) statute and its growing impact on workers’ compensation and liability settlements.
Congress enacted the MSP statute in 1980 (Omnibus Reconciliation Act of 1980) to curb the rising cost of Medicare. The 1980 MSP provisions require liability, automobile and no-fault insurance to make payment for services rendered to Medicare beneficiaries, leaving the Medicare program to provide benefits only as a "secondary" payer. Pursuant to Section 1862(b) of the Social Security Act passed in 1965, payments for items and services under workers compensation laws were already primary to Medicare.
The Center for Medicare and Medicaid Services (CMS) is the Federal agency within the Department of Health and Human Services responsible for administering Medicare and Medicaid. In applicable cases, CMS will not recognize a settlement that does not protect Medicare's interests as secondary payer. Because Federal law takes precedence over state laws and private contracts, Medicare is the secondary payer regardless of state law or plan provisions. CMS' right of recovery is not subject to any statute of limitations. Despite the earlier legislation, CMS did not initiate serious enforcement of the MSP rules until 2001. CMS' preliminary enforcement of the MSP rules has focused on workers compensation cases.
A Medicare Set-aside (MSA) arrangement is an administrative and funding mechanism used to set aside money for future medical expenses that would otherwise be covered by Medicare. CMS currently recommends obtaining approval of MSA arrangements in certain categories of workers compensation cases when future medical expenses are specifically closed in settlement documents. CMS has issued several memoranda addressing MSA arrangements. Although CMS does not mandate a specific type of MSA funding, custodial accounts, trusts and/or annuities represent the most common MSA funding mechanisms.
NAMSAP's purposes, according to President Patty Meifert, focus on the MSP statute and include:
- Defining standards and best practices;
- Promoting multiprofessional perspectives;
- Creating a forum for learning;
- Offering a unified voice on policy issues;
- Protecting the interests of all parties.
NAMSAP's Orlando conference provided significant interaction among the speakers and audience as well as valuable practical advice. Speakers included:
- Robert Lewis who discussed case law and potential class actions related to MSP compliance as well as the application of the MSP statute in liability cases;
- John Campbell and Mark Popolizio who summarized the July 11, 2005 CMS Memorandum;
- Tim Nay who explained the relationship of Medicaid special needs planning and MSAs in catastrophic injury cases; and
- Patty Meifert who addressed resolution of Medicare conditional payments.
Although NAMSAP has not announced any additional conferences, future NAMSAP programs are anticipated and hopefully will continue to address important MSP and MSA issues including funding products, tax planning and professional ethics.
NAMSAP's website provides membership information.
For additional information about the impact of the Medicare Secondary Payer (MSP) statute and Medicare Set-aside (MSA) arrangements on structured settlement, see Section 15.02 of "Structured Settlements and Periodic Payment Judgments" co-authored by Daniel W. Hindert, Joseph Julnes Dehner and Patrick J. Hindert and published by ALM.
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