Beyond Structured Settlements

Affordable Care Act - 4

The Patient Protection and Affordable Care Act (ACA) represents a comprehensive expansion and restructuring of the United States health care system whose most important and controversial provisions for personal injury settlement planning, including the individual mandate and elimination of pre-existing condition restrictions, will become effective nationally on January 1, 2014.

Among the most fundamental and contentious ACA issues are whether, when and how the ACA will reduce health care costs.

In their Spring 2013 NAELA Journal article titled "Medicare’s Future: Letting the Affordable Care Act Work, While Learning From the Past" (see Affordable Care Act - 3), authors Alfred J. Chiplin Jr. and Bethany J. Lilly analyze various ACA cost-saving components.

Overtime, the Chiplin and Lilly believe the ACA's spending and cost-containment provisions should at least slow the health care spending curve. As this New York Times article points out, there is mounting evidence to support Chiplin and Lilly's belief that a sustainable slowdown in health care costs is possible. 

Health Insurance Exchanges

Chiplin and Lilly acknowledge ACA implementation will be a tough but doable challenge so long as we "let the tools of the ACA work". Among the implementation challenges they highlight are the new health insurance exchanges , which states are authorized to establish for individuals and small businesses. 26 states have refused to establish an exchange, thereby defaulting to a federally-facilitated exchange.

Based on conflicting actuarial projections, many insurance experts and commentators have predicted these insurance exchanges will produce higher insurance rates, especially among younger, healthier participants. Under the new ACA requirements, insurers who participate in the exchanges are not permitted to refuse individuals. Price variations and the right to rescind coverage are restricted and annual and lifetime limits are eliminated. Individuals can select one of four comparable plans (bronze, silver, gold, platinum) with few out-of-pocket expenses.

California Exchange Report

On May 23, 2013, Covered California, California's new insurance exchange, published a Report ("Health Plans and Rates for 2014: Making the Individual Market in California Affordable") that identified premium rates submitted by the participating health insurance companies. Surprisingly, these premium rates appear to be significantly less expensive than most forecasters projected.

"We’ve hit a home run for consumers,” announced Peter V. Lee, the executive director of the California exchange.

Many ACA proponents agree. For example, in his May 24, 2013 New Republic article ("California will be Spared the Obamacare Apocalypse: No Sticker Shock Here - Just Affordable Insurance Premiums"), Jonathan Cohn writes:

"Based on the premiums that insurers have submitted for final regulatory approval, the majority of Californians buying coverage on the state's new insurance exchange will be paying less—in many cases, far less—than they would pay for equivalent coverage today. And while a minority will still end up writing bigger premium checks than they do now, even they won't be paying outrageous amounts. Meanwhile, all of these consumers will have access to the kind of comprehensive benefits that are frequently unavailable today, at any price, because of the way insurers try to avoid the old and the sick."

Conservative Reaction

Perhaps predictably, the conservative political reaction to the California insurance exchange report was dramatically different as evidenced by these headlines:

• "Rate Shock: In California, Obamacare to Increase Individual Health Insurance Premiums by 64-146%" - May 30, 2013 Forbes article by Avik Roy.
• "ObamaCare Bait and Switch" - June 3, 2013 editorial in the Wall Street Journal.
• "Obamacare is Raising Insurance Costs" - June 3, 2013 op-ed article in the Wall Street Journal by Daniel Kessler.

Both Wall Street Journal articles predicate their analysis and conclusions on Avik Roy's article.

How can the same California insurance exchange report produce such radically different interpretations?

Proponents' Rebuttal

Jonathan Chait, an ACA proponent, provides an answer in his June 5, 2013 blog post titled "Is Obamacare a War on Bros?":

"Roy compared California’s plans to the teaser rates available on ehealthsurance.com. Those teaser rates turn out to bear little resemblance to actually available health-insurance rates — they exclude swaths of potential consumers for even minute health problems. Possibly the most misleading part of Roy’s astonishingly dishonest screed is the entry point for his pseudo-investigation...These columns keep citing a healthy 25-year-old man as if they are offering up a randomly chosen example of how the exchanges will work. Healthy non-smoking 25-year-old males have very different health profiles than the average person."

Chait's comments echo similar criticism of Roy's analysis by Ezra Klein in his June 1, 2013 blog post titled "The Shocking Truth about Obamacare's Rate Shock":

• "I ran the same search Roy did.....Click to buy the plan and eventually you’ll have to answer pages and pages of questions about your health history. Ever had cancer? How about an ulcer? How about a headache? Do you feel sad when it rains? When it doesn’t rain? Is there a history of cardiovascular disease in your family? Have you ever known anyone who had the flu? The actual cost of the plan will depend on how you answer those questions.”
• "Comparing the pre-underwriting price of this plan to those in Obamacare’s exchanges is ridiculous. The plans in Obamacare’s exchanges have to include those people. They can’t turn anyone away or jack up rates because of a history of arthritis or heart disease. ...They also have to offer insurance that meets a certain minimum standard."

In a follow-up to his May 24, 2013 New Republic article (cited above), Jonathan Cohn added his own rebuttal ("Anatomy of a Bogus Obamacare Argument: How an Irresponsible Forbes Writer Distorted the Debate") to Roy's article:

"Writers like me who have supported the [ACA] treated [the California exchange report] as a big deal. But I would like to think we were candid about the downsides....and noted that California was just one state—and, in some respects, a best-case scenario, because its officials are committed to the law’s success and enjoy broad support from corporate, medical, and consumer leaders. We also noted—as we had noted before—that some young and healthy people would have to pay more. Again, a health insurance system that no longer discriminates against the old and sick can no longer discriminate in favor of the young and healthy. We also acknowledged that getting the insurance bids is just one step in the process. As many of us have written, plenty of things could go wrong with Obamacare—and at least a few of them surely will."

ACA and Settlement Planning

The future of the ACA - and whether, when and how it will reduce health care costs - remains uncertain in the context of continuing political debate and threats to prevent its implementation. However, as key ACA provisions, including the individual mandate and elimination of pre-existing condition restrictions, are set to take effect January 1, 2014, settlement planning and structured settlement stakeholders should prepare themselves for a vastly different professional landscape.

For S2KM's complete reporting about health care reform and the ACA, see the structured settlement wiki.

A Response to the SEC Bulletin

Two structured settlement industry leaders have taken issue with a recent Securities and Exchange Commission (SEC) Investor Bulletin providing advice for individuals who are contemplating selling or purchasing (as investors) structured settlement payment rights and/or future pension payments.

Matthew Bracy, a former President of the National Association of Settlement Purchasers (NASP) and Jason Lazarus, a former President of the Society of Settlement Planners (SSP), have published an article titled "A Response to the SEC Bulletin: The Truth about Factored Structured Settlements as an Investment Vehicle." which characterizes the SEC Bulletin as "misleading and in some cases inaccurate concerning the sale of structured settlement payment streams and factored structured settlements as an investment vehicle." 

More specifically, Bracy and Lazarus argue the SEC Bulletin "muddles":

• "two distinctly different businesses, pension purchasing and structured settlement factoring"; and
• "distinctions between the process of purchasing payment from the structured settlement recipient and selling purchased payment streams to investors."
  

In response, Bracy and Lazarus discuss the following features of structured settlement factoring they believe the SEC Bulletin should have clarified:

• "Always court ordered"
• "No negative tax consequences to the seller"
• "Investors' rights"

SEC Rule 10b-5

Bracy and Lazarus premise their criticism of the SEC Bulletin in the context of SEC Rule 10b-5 which they characterize as "the bedrock of securities laws". SEC Rule 10b-5 "Employment of Manipulative and Deceptive Practices" reads as follows:

"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

(a) To employ any device, scheme, or artifice to defraud,

(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security." (S2KM emphasis).

S2KM Critique

S2KM agrees with Bracy and Lazarus that the SEC Bulletin has serious shortcomings. As S2KM pointed out in an earlier blog post:

"The SEC Investor Bulletin provides a generic definition for a structured settlement plus an indirect reference to state structured settlement protection statutes. It does not, however, specifically reference or discuss the definitions, requirements and protections for structured settlement transfers provided in:

• Internal Revenue Code section 5891; and
• The state structured settlement protection statutes."

Most Fundamental Issue

More importantly, however, neither the SEC Bulletin nor the article by Bracy and Lazarus directly addresses the most fundamental related issue: whether, and when does, a specific sale and purchase of structured settlement payment rights constitute a "security" for purposes of U.S. securities laws?

The SEC Bulletin references this issue obliquely stating: "structured settlement income-stream products may or may not be securities and likely are not registered with the SEC. As such, reliable information about these products may be difficult to find and resolving disputes should an investment go sour may also be difficult."

Bracy and Lazarus recognize that factoring companies sometimes "bundle the payment streams together in securitized transactions for institutional investors". Presumably such "securitized transactions":

• Do qualify, and are registered, as investment "securities";
• Are subject to SEC regulatory authority; and
• Must meet the requirements of SEC Rule 10b-5.

What about individual transactions - i.e. the purchase and sale of structured settlement payment rights by factoring companies (and/or the re-purchase and re-sale of previously transferred structured settlement payment rights by brokers) to individual investors including sales to personal injury claimants?

Shouldn't the SEC specifically highlight these transactions and address the question: Do these transactions qualify as investment "securities"?

If the answer is "no", what is the legal authority? In this case, the securities laws presumably do not apply and the SEC presumably has no authority to regulate such transactions. Alternatively, who does regulate such transactions and what laws apply?

If the answer is "yes", what is the legal authority? In this case, how many of these transactions (do/do not) meet applicable securities law requirements including registration, licensing, disclosure and other sales practices?

Definition of a "Security"

The Securities Act of 1933 establishes the following definition of a "security" and courts have held the definition in the Securities Exchange act of 1934 to be identical:

“The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a ‘security’, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” 

After reviewing various tests applied by courts when determining whether this definition applies to various investment contracts, the authors of "Structured Settlements and Periodic Payment Judgments" (S2P2J) conclude in Section 4.05[2] ("Securities Law Issues"): "If a settlement involves fixed periodic payments for a claimant’s lifetime, which [are] funded through the purchase of a fixed annuity, it is highly doubtful that the promise to make such payments will be viewed as a “security” subject to the federal securities laws."

This conclusion, however, applies to the primary market and does not address the purchase and sale of structured settlement payment rights in factoring transactions. 

S2P2J Release 54, to be published later this summer, will address the issue of whether the purchase and sale of re-cycled structured settlement payment rights constitutes an investment "security". With Daniel Hindert and Joseph Dehner, S2KM author Patrick Hindert is an S2P2J co-author.

SEC Bulletin Addresses Structured Settlement Transfers

The Securities and Exchange Commission (SEC) Office of Investor Education and Advocacy has issued an Investor Bulletin titled "Pension or Settlement Income Streams: What You Need to Know Before Buying or Selling Them". 

Although the SEC Investor Bulletin "is neither a legal interpretation nor a statement of SEC policy" it provides advice for individuals who are contemplating selling or purchasing (as investors) structured settlement payment rights and/or future pension payments.

The Investor Bulletin highlights questions potential sellers and investors should ask before proceeding with proposed transactions.

For sellers:

• "Is the transaction legal?"
• "Is the transaction worth the cost?"
• "What is the reputation of the company offering the lump sum?"
• "Will the factoring company require life insurance?"
• "What are the tax consequences?"
• "Does the sale fit your longer term financial goals?"

For investors:

• "Is the financial professional selling the product registered with a state or federal regulator or with FINRA?"
• "How is the salesperson being compensated?"
• "Is the salesperson authorized to sell this product?"
• "What is the reputation of the company selling the product to me?"
• "What are the tax consequences?"
• "What organization is ultimately paying you?"
• "Who is sending the check?"

To check the registration status of a salesperson, the SEC Bulletin recommends investors check these resources:

• The SEC's Investment Adviser Public Disclosure (IAPD) website.
• FINRA's BrokerCheck or telephone number (800-289-9999).
• Your state securities regulator.
• The NAIC's website or telephone number (866-470-6242) for your state's insurance commission.

The SEC's Investor Bulletin includes a number of additional warnings and resource links and concludes with the following admonition:

"Whether you are thinking about selling a pension or structured settlement, or buying one from someone else, remember that the risks in doing so are substantial and the safety net if things go wrong may not be very strong. Don’t shy away from asking probing questions—and shop around. there may be less risky alternatives to help you achieve your financial objectives."

Also note: The SEC Investor Bulletin provides a generic definition for a structured settlement plus an indirect reference to state structured settlement protection statutes. It does not, however, specifically reference or discuss the definitions, requirements and protections for structured settlement transfers provided in:

• Internal Revenue Code section 5891; and
• The state structured settlement protection statutes.

For a detailed analysis of transfers of structured settlement payment rights, see Chapter 16 of "Structured Settlements and Periodic Payment Judgments" (S2P2J).

For S2KM's complete reporting about the structured settlement secondary market, see the structured settlement wiki.

NAELA 2013 Annual Meeting

The National Academy of Elder Law Attorneys (NAELA) celebrated its 25th anniversary last week in Atlanta - commemorating its past achievements, analyzing current legal and demographic issues and preparing for future growth and development.

Among many former NAELA Presidents in attendance, Vincent Russo was given the honor and challenge of reviewing NAELA's "25 years in 25 minutes". Russo's historic overview highlighted NAELA's early decision to open its legal membership on a "non-exclusive" basis to create a new breed of attorneys dedicated to community service. NAELA's membership has expanded its focus in recent years to embrace special needs as well as elder law issues.

With more than 4300 members and a strong financial balance sheet, NAELA's resources now include: the NAELA Foundation, multiple publications including the NAELA Journal, Aspirational Professional Standards, a vibrant website featuring a comprehensive library and hosting NAELA's active online community, specific practice sections, state chapters, robust educational conferences and certification programs, multiple annual awards, plus a highly competent staff.

Elder Abuse

NAELA's 2013 Annual Conference agenda offered a diverse educational experience plus 26 exhibitors for more than 250 attendees. One of the featured topics was financial "elder abuse", a serious and under-reported problem with an estimated annual cost exceeding $3 billion in the United States.

Guest speakers addressing financial elder abuse included Mickey Rooney and Tony West. Rooney, the 92 year old actor, testified about elder abuse before a U.S. Senate committee in 2011. Appearing at NAELA's conference via live video, Rooney described how he was victimized and rendered penniless by two of his stepchildren. West, Acting Associate U.S. Attorney General, oversees the U.S. government's efforts to prevent elder abuse.

Additional topics that received multiple presentations at the NAELA conference:

• Skill development - advice for running a successful elder law and/or special needs legal practice.
• How changing demographics are impacting special needs and elder law practice.
• Social media and related Internet technologies.
• Fiduciary responsibilities for attorneys representing special needs individuals.
• Legal updates - for estate planning, special needs and elder law.
• Drawing a line on what constitutes the practice of law.
• The future of long term care.

Structured Settlements and Special Needs Planning 

Patrick Hindert, author of the "Beyond Structured Settlements" blog, spoke at the NAELA conference about the challenges of integrating structured settlements and special needs planning into a collaborative settlement planning profession. Hindert's presentation addressed:

• What is known (and not known) about settlement planning.
• Why structured settlements and settlement planning are strategically important for special needs attorneys.
• New standards and practices that are reshaping settlement planning.
• Public policy issues which will determine the future of settlement planning.
• How special needs attorneys can expand their settlement planning practice.

The Future of Elder and Special Needs Law

To help celebrate NAELA's 25th anniversary, the NAELA Journal is dedicating its 2013 Spring and Fall editions to a two-part symposium on the future of Elder and Special Needs Law. The editors have asked leading U.S. legal authorities "to predict what the law and our practices might look like 25 years from now and the challenges that clients, our society, and we, as Elder and Special Needs Law attorneys, will face."

Congratulations to all NAELA conference participants, especially NAELA President Gregory French and conference Co-Chairpersons Rebecca Morgan and Edwin Boyer, for an outstanding 25th anniversary meeting. Continued success for NAELA and its members in representing and advocating for the rights of elderly and special needs individuals.

For S2KM's reporting about:

• Prior NAELA conferences - see the structured settlement wiki.
• How the Affordable Care Act impacts personal injury settlement planning - see the "Affordable Care Act" - Part 1 and Part 2.

NY Court of Appeals Denies ELNY Review

The New York State Court of Appeals (Court of Appeals), New York's highest judicial authority, has denied a Motion for Leave to Appeal a February 6, 2013 decision bythe Appellate Division of the Supreme Court of the State of New York, Second Department which rejected a legal challenge by Executive Life of New York (ELNY) structured settlement shortfall payees to the ELNY Order of Liquidation and Approval of the ELNY Restructuring Agreement signed by New York State Supreme Court Judge John M. Galasso on April 16, 2012.

The appeal challenging the merits of the ELNY Liquidation Order had raised three primary issues each of which the Court of Appeals' decision effectively rejected:

• Due Process - "Did inadequate notice and the denial of information to Objectors (ELNY structured settlement shortfall payees), along with the selective application of the Civil Practice Law and Rules, deny Objectors a fair hearing as required by principles of due process?"
• Immunity - "Did the Supreme Court exceed its subject matter jurisdiction or otherwise err in granting immunity to the Receiver and others in their personal capacities, where such immunity is not provided for by statute, is inconsistent with the common law, and is unsupported by evidence?"
• Injunction - "Did the Supreme Court exceed its jurisdiction or otherwise err in permanently enjoining claims against the Receiver and others in their personal capacities, where such injunction is not provided for by statute or the common law, and no evidence was adduced at the hearing?"

The Court of Appeals decision effectively ends litigation challenging the merits of the ELNY Liquidation Order and permits the National Organization of Life and Health Insurance Guaranty Association (NOLHGA) to proceed with the ELNY Restructuring Agreement including substantial annuity payment reductions for more than 1400 structured settlement recipients.

ELNY Contempt Order and Class Action Lawsuit

Another anticipated result of the Court of Appeals decision will be the filing of a brief by legal counsel for three ELNY structured settlement shortfall payees (objector respondents) to perfect their appeal of a Contempt Order issued January 25, 2013 by Judge Galasso. Based upon previous court filings and out-of-court statements, they are expected to argue that Judge Galasso's Contempt Order violates the United States Constitution.

Following Judge Galasso's Contempt Order, attorneys representing the structured settlement shortfall payees voluntarily dismissed their federal court ELNY class action lawsuit , without prejudice, preserving their right to refile claims and tolling the statute of limitations. At that time, shortfall payee attorney Edward Stone characterized the voluntary dismissal as a "strategic decision" attributable to the Contempt Order which left open the possibility of additional fines for continued legal efforts to protect ELNY shortfall payees.

In a letter written to United States District Judge Jesse M. Furman prior to the voluntary dismissal of the ELNY class action lawsuit, shortfall payee attorney Roger Christensen quoted from the 1964 United States Supreme Court decision in Donovan v. City of Dallas: "Early in the history of our country, a general rule was established that state and federal courts would not interfere with or try to restrain each others proceedings. That rule has continued substantially unchanged to this time."

Christensen's letter continued: "It could not be more clear that a state court cannot enjoin a federal action or use contempt proceedings to preclude citizens' attempts to have their claims heard in federal court."

The original class action Complaint named Jeanice Dolan, Daniel A. Malin, Keith Vincent, and other similarly situated ELNY shortfall victims, as plaintiffs, and Benjamin M. Lawsky, Superintendent of Financial Services of the State of New York, in his non-regulatory capacity as ELNY's Receiver, including predecessor ELNY Receivers (Rehabilitator), Metropolitan Life Insurance Company (MetLife) and Credit Suisse Group, AG (Credit Suisse) as defendants.

Based upon allegations of defendant misconduct (see: ELNY Allegation Timeline), the original class action Complaint requested the following damages and relief:

• "Damages equaling the full present value of each Class Member's annuity issued by ELNY, less any amount determined to be owing to Plaintiff under the terms of ELNY's liquidation;
• "Damages equaling the amount of each defendant's unjust enrichment and ill-gotten gains;
• "Attorney fees and litigation expenses, to the extent permitted by contract or law;
• "Pre- and post-judgment interest, to the extent provided by contract or law; and
• "Such other equitable relief as the Court deems appropriate."

For S2KM's complete reporting of the ELNY liquidation, see the structured settlement wiki.

 

S2P2J Release 53

Publisher Law Journal Press is currently distributing hardcopy supplements for Release 53 of "Structured Settlements and Periodic Payment Judgments" (S2P2J). Online S2P2J, which includes a searchable index, download capability and one-click access to cases and statutes, has already been updated to include Release 53 materials.

First published in 1986, S2P2J is co-authored and updated semi-annually by Daniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert. Both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) utilize S2P2J as an educational resource for their certification programs.

Release 53 Highlights

Release 53 continues S2P2J's comprehensive reporting of the Executive Life insolvencies with updates for both Executive Life of California (ELIC) and Executive Life of New York (ELNY). The ongoing ELNY liquidation threatens severe court-approved reductions for more than 1400 structured settlement recipients across the United States.

Certain prospective ELNY shortfall payees are appealing the ELNY liquidation and restructuring order. Their attorneys are appealing a related contempt order. The outcome of this courtroom drama will significantly impact not only the ELNY shortfall payees but also the structured settlement industry and state life insurance guarantee associations.

Other Release 53 topics:

• American Taxpayer Act of 2012 - updating when and how personal injury damage awards are taxed to a decedent's estate. 
• Non-qualified assignments - expanded analysis of this growing market.
• 2013 HIPAA omnibus final rule - how it impacts settlement planners and structured settlement professionals.
• The Smart Act - which sets new procedures for Medicare Secondary Payer (MSP) repayment and reporting.

As the structured settlement and settlement planning markets continue to experience unprecedented changes, S2P2J provides a comprehensive and up-to-date knowledge resource for industry experts and stakeholders.

If you do not already subscribe to S2P2J, or your subscription is out-of-date, review some of the recent S2P2J highlights to see what you are missing.

Affordable Care Act - 2

The Collateral Source Rule

The Affordable Care Act (ACA) appears to change settlement planning in fundamental ways.

Attorney Scott Solkoff predicted the following changes during his ACA analysis at the ASNP 2013 Annual Meeting:

• Reduced personal injury verdicts and settlements.
• A different calculus for determining future medical damages based upon health insurance costs.
• Fewer first party special needs trusts (SNTs).
• Reduced demand for Medicare and Medicaid for persons with disabilities under age 65.

In their research paper titled "Potential Effects of the Affordable Care Act on the Award of Life Care Expenses" (see: Affordable Care Act - 1 ), economists Joshua Congdon-Hohman and Victor Matheson suggest the ACA:

• "[M]ay well have indirectly resulted in a great deal of tort reform"; and
• Should simplify and reduce calculations of future medical damages by limiting those costs to "[health insurance] premiums and out-of-pocket limits less any pre-injury expected medical costs and penalties if uninsured."

All three experts acknowledge the importance of the collateral source rule in determining how medical damages will be calculated beginning January 1, 2014 when key elements of the ACA, including the individual mandate and elimination of pre-existing condition restrictions, become effective nationally.

Two recent law review articles address whether and how the ACA will impact the collateral source rule and therefore offer additional insight for settlement planners and structured settlement professionals as well as other personal injury stakeholders:

• Rebecca Levenson (Levenson), "Allocating the Costs of Harm to Whom They are Due: Modifying the Collateral Source Rule after Health Care Reform" (Levenson article), University of Pennsylvania Law Review, Volume 160.
• Ann S. Levin (Levin), "The Fate of the Collateral Source Rule After Health Care Reform" (Levin article), UCLA Law Review, Volume 60.

Background

The Restatement (Second) of Torts 920A(2) defines the traditional, common law collateral source rule (CSR): "Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable." Federal Rule of Evidence 411 also adopts the common law CSR.

The common law CSR has two separate but related functions (evidence and damages) which both Levenson and Levin discuss in their articles. The first function prevents evidence of outside payments from being presented to a jury. The second function prevents a jury from reducing a plaintiff's damages by amounts third parties have paid or are expected to pay to plaintiffs. As Levin points out, the CSR damage function also allows a plaintiff to recover medical damages in the amount a medical provider bills (billed charges), whereas the plaintiff ’s health insurer generally pays substantially less based on negotiated reimbursement rates.

Although every state and federal court recognizes the CSR in some form, many states have limited its scope or abolished it completely as a result of tort reform. Plaintiffs in different states and/or different courts therefore can receive widely different damage awards for the same injury because different courts measure medical costs differently.

Traditional Arguments For and Against the CSR

Levenson and Levin each summarize traditional arguments favoring and opposing the common law CSR.

CSR proponents emphasize the deterrence theory of tort law which seeks to punish tortfeasors and deter them from injuring future plaintiffs:

• Defendants should not be unjustly enriched if a plaintiff purchases medical insurance.
• The CSR incentivizes plaintiffs to purchase medical insurance.
• Collateral sources never fully reimburse plaintiffs.
• Subrogation rights reduce and/or prevent double recoveries.
• The CSR promotes independence of jury determinations.

CSR opponents argue the purpose of tort law is compensation for harm not deterrence. They criticize the CSR for:

• Allowing some plaintiffs to recover twice.
• Generating different damage awards for the same injuries in different cases.
• Adding an unjustified element of punitive damages.
• Inflating awards.
• Encouraging claimants to go to trial.

Complicating Factors

Levin's article provides a case example to illustrate different ways states currently measure the legal cost of medical expenses as a result of CSR variations. The calculation of legal damages is further complicated by six factors Levin identifies as inherent in the payment of modern medical bills - only two of which existed when the CSR was originally promulgated: the amount of the stated bill or damages and the admissibility or legal effect of the insurance payment.

Levin highlights four "additional and complicating evidentiary factors [which] have been added or magnified since the creation of the [CSR]:"

• A lower reimbursement rate.
• Full satisfaction of higher bills without any balance billing.
• The plaintiff's duty to repay his health insurance provider out of any award.
• The plaintiff's cost of procuring health insurance.

Levenson's article analyzes the impact of subrogation which she defines as "a contractual arrangement through which a claimant's primary insurer is reimbursed for its coverage of the claimant's medical costs if the claimant recovers these costs from the tortfeasor." Subrogation poses two CSR-related problems, according to Levenson:

• The cost for health insurers to exercise their subrogation rights; and
• How subrogation reduces an insured plaintiff's award after health insurance set-offs.

As a result, Levenson points out, some jurisdictions have developed set-off rules to limit how awards are reduced post-verdict:

• Make-whole rules ensure plaintiffs' awards are not reduced for collateral benefits before plaintiffs recover some costs of procuring collateral benefits.
• Common funds require non-litigating parties who share an award to pay a portion of the litigation costs including attorney fees.

Medical Damages Under the ACA

Both Levenson and Levin agree the ACA's individual mandate weakens the traditional common law CSR rationale and that medical damages should now be calculated differently. However they do so for different reasons and propose different solutions.

Levin's Proposal

Levin's primary argument for changing the traditional common law CSR is that it calculates medical damages based on medical provider bills instead of the lower negotiated reimbursement rate paid by most health insurers. To achieve fairness and accuracy post-ACA, Levin maintains courts should calculate medical damages using: 1) the negotiated reimbursement rate; and 2) a portion of the premium payments the plaintiff has paid for medical insurance.

Levin believes this approach will continue to hold defendants responsible for harm they caused and also will ensure defendants pay an accurate amount. The premium reimbursement percentage should be based on the extent of a plaintiff's injuries, according to Levin, because it directly correlates with the payment amount a medical insurer will make on the plaintiff's behalf. Levin's uses her case example to demonstrate the results of her proposal.

Levenson's Proposal

Levenson's primary argument for changing the traditional common law CSR focuses on two new factors introduced by the ACA: the individual mandate and "the willfully uninsured claimant". The ACA mandates that most Americans acquire health insurance coverage which, Levenson believes, will cause juries to assume plaintiffs are insured. The traditional common law CSR, however, will allow willfully uninsured plaintiffs to hide their lack of health care coverage during trial and during the calculation of damages. The result could be to compensate such plaintiffs assuming "mandatory" insurance coverage they refused to obtain.

The purpose of changing the CSR after the ACA, according to Levenson, should be to align the CSR's outcome with the underlying goal of the individual mandate. Whether and what changes will occur, however, will vary from jurisdiction to jurisdiction depending upon a number of factors which Levenson identifies including the current status of the CSR in a particular state. Levenson insists any changes in the CSR must account for the different groups affected: insured plaintiffs, willfully uninsured plaintiffs and exempt plaintiffs.

Levenson proposes a Model CSR statute which S2KM summarizes as follows:

• For evidentiary purposes:
  • Although otherwise inadmissible, collateral source information may be introduced by the plaintiff if the court determines the plaintiff is:
    • Obligated to repay expenses which have been or will be paid or reimbursed; or
    • Exempt from obtaining insurance under the ACA.
  • After the jury has returned a verdict, defendants may produce evidence that a plaintiff failed to obtain minimum ACA insurance coverage. If the judge so finds, he will reduce the plaintiff's damages for the amount the minimum essential ACA coverage (bronze level) would have reimbursed the plaintiff.
• For calculating damages: the judge shall reduce the verdict by the amount of any non-subrogated third party collateral benefits less the amount the plaintiff paid to obtain reimbursement of medical or hospital expenses.

S2KM Conclusions

• Neither Levin nor Levenson:
  • Directly address whether and/or how the CSR will affect calculations of future medical damages, as opposed to past medical damages.
  • Discuss how the ACA's restrictions against pre-existing conditions impact calculations of medical damages.
• Their analyses and proposals are valuable, however, especially related to other ACA analyses referenced above: Scott Solkoff''s ASNP presentation and the research paper written by economists Joshua Congdon-Hohman and Victor Matheson.
• Because of: 1) existing variations in how the CSR is currently applied in states and federal courts; and 2) the substantial dollars at stake; whether and how the ACA and the CSR will interact and impact the analysis, negotiation and proof of medical damages present complex, priority issues for personal injury stakeholders.
• ACA and CSR-related changes create immediate and continuing opportunities and challenges for personal injury settlement planners and their clients.

For S2KM's continuing reporting and analysis of the Affordable Care Act and its impact on settlement planning, see the structured settlement wiki.  For more comprehensive analysis about structured settlements and government benefits, see Chapter 15 of "Structured Settlements and Periodic Payment Judgments"(S2P2J).

Affordable Care Act - 1

The Affordable Care Act (ACA) refers to two controversial laws enacted in March 2010, the Patient Protection and Affordable Care Act and the Health Care Education and Reconciliation Act, which restructure the fundamental relationship among government, health care providers and health care recipients and profoundly impact persons with disabilities.

Although some Republicans in Congress still threaten to repeal the ACA, the Supreme Court upheld almost all of the ACA's provisions in 2012, including the individual mandate and elimination of pre-existing condition restrictions, which will become effective nationally on January 1, 2014.

How will the ACA impact personal injury damage awards, settlement planning and structured settlements?

Professional associations whose members engage in settlement planning have already begun to address these issues:

• Speakers at recent Academy of Special Needs Planners (ASNP) annual educational conferences (Cynthia Barrett in 2011, David Lillesand in 2012 and Scott Solkoff in 2013) explored these issues in the context of special needs planning.
• The National Academy of Elder Law Attorneys (NAELA) devoted the Spring 2011 issue of its NAELA Journal to the impact of the ACA on Elder and Special Needs Law attorneys and their clients.
• The Society of Settlement Planners (SSP) will feature a presentation by Thomas Begley titled "The Impact of the ACA on Personal Injury Settlements, Structured Settlements and Special Needs Trusts", plus a related panel discussion, during its 2013 Annual Meeting.

Recent research papers and law review articles have further expanded analysis of these strategic ACA issues. One such research paper, titled "Potential Effects of the Affordable Care Act on the Award of Life Care Expenses" and written by Joshua Congdon-Hohman and Victor A. Matheson, was published September 2012 as part of the College of the Holy Cross, Department of Economics, Faculty Research Series (Paper No. 12-01).

Their paper argues: "the ACA may well have indirectly resulted in a great deal of tort reform" and, as a result, "awards in personal injury cases could be dramatically impacted" because:

• Future medical expenses represent a significant element of damages in many personal injury cases.
• When the ACA is fully implemented in 2014, all individuals will be required to purchase health insurance or pay a penalty.
• The ACA provides insurance premium subsidies for low income individuals who do not receive health insurance through the government or from a family member’s employer.
• The ACA prevents price discrimination based on health status and bans annual and lifetime expenditure limits.
• Most individuals will pay the same cost for health insurance before and after an accident.
• The legal maximum out-of-pocket expenses allowable under the ACA is $5,950 per year.
• The goal of tort law is to make the plaintiff "whole".
• Funding of health care through private insurance is a valid methodology for accomplishing this goal now that the ACA makes those markets available to injury victims.
• Therefore, the ACA:
  • Should simplify and reduce calculations of future medical damages;
  • By limiting those costs to "[health insurance] premiums and out-of-pocket limits less any pre-injury expected medical costs and penalties if uninsured."

What about the "collateral source rule"?

Congdon-Hohman and Matheson, who are economics professors, acknowledge a collateral source issue is "at play" and "remains of significant importance". They argue, however, "there is reason to believe the ACA changes the underlying reason of excluding collateral source compensation from inclusion in tort cases."

More specifically, the authors maintain: "removing existing health insurance coverage from exclusion under the collateral source rule would not significantly affect health insurance coverage rates reducing the economic rationale for having a collateral source rule in place for health insurance."

In their paper, Congdon-Hohman and Matheson highlight additional provisions of the ACA which they believe will impact many life care plans:

• ACA provisions limiting growth of premiums and medical costs:
  
  • Limits on insurers' non-care based expenses.
  • Formal requirements to justify rate increases.
  • New standards to lower administrative costs.
  • Funding for new wellness and prevention strategies.
• ACA provisions reducing the tax deductibility of medical costs:
  • Reductions in eligible expenditures and nominal limits for flexible spending accounts.
  • An increase in the deductible medical expense threshold from 7.5 percent of adjusted gross income to ten percent.
  • An an excise tax on “taxable medical devices.”

As a related result of the ACA, Congdon-Hohman and Matheson believe life care planners will play an increasingly important role in personal injury damage analysis. Prior to the ACA, life care planners were tasked with identifying medical and living expenses not otherwise required "but for" the accident.

Under the ACA, the authors maintain life care planners must also identify which health care and living expenses will, and will not, be covered by the ACA's minimum insurance requirements. And, despite certain minimum federal standards, these requirements may differ by state.

Cogdon-Hohman and Matheson's research paper provides a valuable educational resource for all personal injury stakeholders. For settlement planning professionals who are attempting to understand how the ACA impacts personal injury damage analysis, negotiation strategy, work product, and funding options, this paper should encourage expanded industry discussion and analysis.

For S2KM's complete reporting and continuing commentary about the ACA, see the structured settlement wiki. For a comprehensive analysis about structured settlements and government benefits, see Chapter 15 of "Structured Settlements and Periodic Payment Judgments"(S2P2J).

SSP 2013 Annual Meeting

Since it was founded in 2001, the Society of Settlement Planners (SSP) has defined itself as an alternative to the National Structured Settlement Trade Association (NSSTA); and defined its membership as more than plaintiff structured settlement brokers. The resulting settlement planning business model features:

• Structured settlement annuities as a core funding product, but not as a singular funding vehicle or product, for personal injury settlement plans; and
• Settlement planners, as "claimant centric", multi-professional, advisers who collaborate as a team and offer injury victims and plaintiff attorneys complementary knowledge, skill sets and work product.

To support and expand this settlement planning business model, SSP has developed and promoted:

• Standards of Professional Conduct for Settlement Planners;
• The Registry of Settlement Planners certification program; and
• Annual educational conferences.

To improve and grow both the structured settlement and settlement planning markets, SSP President Charles Schell has proposed the following strategy:

• "Study and improve our business standards and practices.
• "Develop "customer centric" solutions that help injury victims.
• "Build collaborative business models by focusing on shared interests."

SSP recently announced the agenda for its 2013 Educational Conference which will take place May 5-7 in Las Vegas. Featured topics and speakers, organized by S2KM-suggested categories:

Motivation, Marketing and Perspective

• The Art of Significance - Dan Clark
• Overcoming Objections and Managing Opportunities - Frank Maguire
• Life Lessons from the Lottery - Don McNay

Affordable Care Act (ACA)

• Impact on Personal Injury Settlements, Structured Settlements and Special Needs Trusts - Thomas Begley
• ACA Panel - Thomas Begley; Pi-Yi Mayo; Karen Meyers

 Qualified Settlement Funds

• Update - Pi-Yi Mayo
• Panel - Pi-Yi Mayo; Don McNay; Andy Cook; Mark Wahlstrom.

 Settlement Planning Team

• Partnering with Ancillary Service Providers - Anthony Prieto; Dave Place
• Professional MSA Administration - Don Batchelor
• Tax issues - Jeremy Babener
• Partnering with Investment Professionals - Victor Wilkerson
• Working with Benefit Expert Attorneys - Peter Wayne

 Government Benefit Issues

• MSA Allocation Process - Michael Greco
• Social Security Disability Benefits - Omar Ortega and Kip Daniels
• Spend Downs - Kristen Behrens; Thomas Begley
• How to Fix the MSA Program - Doug Shaw

 Settlement Trusts

• Settlement Trusts - Karen Meyers
• Funeral Trusts - Scott Leonardi
• Pooled Trusts - Jason Lazarus

Settlement Planning Products

• Long-term Care Insurance - John Darer
• Guaranteed Index Annuities - David Salko and John O'Connell
• Defined Benefit Plans for Plaintiff Attorneys - Rosendo Zepeda, Jr.

 Related S2KM Resources:

• Spring 2013 Educational Conferences
• SSP 2012 Annual Meeting
• Settlement Planning in 2012
• Alternative Business Models
• ASNP 2013 Annual Meeting

CMS WCMSA Reference Guide - 1

Thirty-three years following enactment of the Medicare Secondary Payer (MSP) Act and 12 years after the Centers for Medicare and Medicaid Services (CMS) issued its first workers compensation Medicare set-aside (WCMSA) memorandum, CMS has finally published a WCMSA Reference Guide (WCRG).

Enacted in 1980, the MSP Act requires certain insurers, including liability, automobile, no-fault and workers compensation insurers, to make payment first for services to Medicare beneficiaries regarding claimed injuries, with Medicare responsible only as a “secondary payer.”

CMS, the agency responsible for administering Medicare policies, failed to take practical steps to enforce the MSP rules until 2001 when it issued the first of several policy memorandums addressing WCMSAs. These policy memorandums created a format, checklists and procedures for seeking approval for WCMSAs to "protect Medicare's interests" when workers compensation cases are settled. The WCRG states: "The WCRG follows all CMS policy memorandums currently in effect. The memorandums are published on the CMS website."

Although CMS and its field offices have also issued informal guidance about the use of MSAs in liability cases, nothing comparable exists to the CMS WCMSA memoranda. As a result, there is no uniform position or consensus among tort practitioners as to whether and when MSAs are required in liability cases.

The WCRG continues a series of Medicare legislative and regulatory compliance initiatives which also include the Medicare, Medicaid and SHIP Extension Act (MMSEA) and the Strengthening Medicare and Repaying Taxpayers Act (SMART Act).

Published by CMS on March 29, 2013, the 88-page WCRG (including Appendices) applies only to workers compensation cases. Its intended purpose: to help WCMSA professionals, beneficiaries and other stakeholders "understand CMS' [WCMSA] amount approval process and to serve as a reference for those electing to submit such proposals to CMS for approval."

This blog post provides excerpts from the WCRG addressing and summarizing non-structured settlement specific issues. For a more complete understanding, read the entire 88-page WCRG. Subsequent S2KM blog posts will summarize and discuss WCRG structured settlement issues including rated age information requirements for determining WCMSA beneficiary life expectancy.

Overview

• Medicare's interests:
  • "Any claimant who receives a WC settlement, judgment,or award that includes an amount for future medical expenses must take Medicare’s interest with respect to future medicals into account."
  • "If Medicare’s interests are not considered, CMS has a priority right of recovery against any entity that received a portion of a third party payment either directly or indirectly."
  • "Medicare may also refuse to pay for future medical expenses related to the WC injury until the entire settlement is exhausted."
• Compromises: "CMS does not compromise or reduce future medical expenses related to a WC injury."
• WCMSA statutes and regulations: "There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review."
• What are WCMSAs: "A WCMSA allocates a portion of the WC settlement for all future work-injury-related medical expenses that are covered and otherwise reimbursable by Medicare. When a proposed WCMSA amount is submitted to CMSfor review and the individual or beneficiary obtains CMS’approval, the CMS-approved WCMSA amount must be appropriately exhausted before Medicare will begin to pay for care related to the beneficiary’s settlement, judgment, award, or other payment."
• Benefit of WCMSA: "The primary benefit [of submitting a WCMSA] is the certainty associated with CMS reviewing and approving the proposed amount with respect to the amount that must be appropriately exhausted."
• Goal of WCMSA: "The goal of establishing a WCMSA is to estimate, as accurately as possible, the total cost that will be insured for all medical expenses otherwise reimbursable by Medicare for work-related conditions during the course of the claimant’s life, and to set aside sufficient funds from the settlement, judgment,or award to cover that cost."
• Creating a WCMSA: "Generally there are four steps involved in creating a CMS-approved WCMSA:
  • "Analysis of the claim and medical information in order to determine the amount of money required for the fund.
  • "Negotiation of a tentative settlement and preparation of draft settlement documents to settle the WC case incorporating terms for creation and administration of the WCMSA (CMS is not a party to the settlement).
  • "Obtaining approval from CMS regarding the settlement and the proposed WCMSA.
  • "Finalizing the settlement and funding the WCMSA."
• WCMSA funding:
  • "CMS has no process to accept up-front cash payments in lieu of a CMS reviewed WCMSA."
  • "WCMSAs may be funded by a lump sum or may be structured, such that a fixed amount of funds are provided each year for a fixed number of years."

CMS Review of WCMSAs - excluding structured settlement and rated age issues which S2KM will be address in subsequent blog posts.

• Introductory note: CMS introduced a WCMSA internet portal in November 2011 for submission of WCMSA proposals.
• Review threshold: "CMS will review a proposed WCMSA amount when the following workload review thresholds are met:
  • "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."
  • "A claimant has a reasonable expectation of Medicare enrollment within 30 months if any of the following apply:
    • "The claimant has applied for Social Security Disability Benefits.
    • "The claimant has been denied Social Security Disability Benefits but anticipates appealing that decision.
    • "The claimant is in the process of appealing and/or re-filing for Social Security Disability benefits.
    • "The claimant is 62 years and 6 months old.
    • "The claimant has an End Stage Renal Disease (ESRD) condition but does not yet qualify for Medicare based upon ESRD."
• Review not required: "It is unnecessary for the individual or beneficiary to obtain CMS approval for a proposed WCMSA amount if all of the following are true:
  • "The facts of the case demonstrate that the injured individual is only being compensated for past medical expense
  • "There is no evidence that the individual is attempting to maximize the other aspects of thesettlement (e.g., the lost wages and disability portions of the settlement) to Medicare’s detriment; and
  • "The individual's treating physicians conclude (in writing) that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the WC injury. However, if Medicare made any conditional payments for WC-related services furnished prior to settlement, then Medicare will recover those payments. In addition, Medicare will not pay for any WC-related services furnished prior to the date of the settlement for which it has not already paid."
• Review process:
  • "If you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS 'established policies and procedures."
  • "When a WCMSA is submitted for approval, CMS must have certain documentation available to complete a review of the proposal. Table 1 lists the documents normally submitted with a WCMSA proposal."
  • "Submit the gross total settlement amount as a single lifetime number and NOT the settlement amount minus attorney fees, expenses, etc."
  • "Once this information is received, the COBC will apply it to the beneficiary's Medicare record and assign the case to the Medicare Secondary Payer Recovery Contractor (MSPRC)."
  • "The MSPRC will send the beneficiary a “Rights and Responsibilities” letter that explains Medicare's recovery rights with respect to conditional payments and information regarding what steps the beneficiary should take next."
  • "Once the Rights and Responsibilities letter is received, all further inquiries must be made through the MSPRC."
  • "If the parties to a WC settlement stipulate a WCMSA but do not receive CMS approval, then CMS is not bound by the set-aside amount stipulated by the parties, and it may refuse to pay for future medical expenses in the case, even if they would ordinarily have been covered by Medicare."
  • "If CMS approves the WCMSA and the account is later appropriately exhausted, Medicare will pay related medical bills for services otherwise covered and reimbursable by Medicare regardless of the amount of care the beneficiary continues to require."
  • "You can see your case’s status on the WCMSAP, if the case was submitted on the Portal. For cases that were submitted via mail, case status can be obtained by contacting the WCRC."
  • "When CMS does not believe that a proposed set-aside adequately protects Medicare’s interests,and thus makes a determination of a different amount than originally proposed, there is no formal appeals process. However, there are several other options available."

Life Care Plans

• "A Life Care Plan is a dynamic document based on published standards of practice, comprehensive assessment, data analysis, and research that provides an organized concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health needs."
• "A life care plan is appropriate when the claimant’s injury or disease is extensive and serious, e.g., paraplegia, quadriplegia, brain damage."
• "Although submission of a life care plan is optional, you are required to include drug and dosage lists. Include all pricing charts, cost projections, pricing information, and explanatory narratives and analyses."
• "When the parties to a WC settlement present CMS with “life care plans” or similar evaluations prepared by non-treating physicians to support and justify their proposed WCMSAs, Medicare will consider accepting such evaluations if the physician does all of the following:
  • "Examines the claimant;
  • "Reviews the claimant's medical records;
  • "Contacts any of the claimant's treating physicians (if applicable);
  • "Is available to answer CMS’ questions;
  • "Prepares a report that summarizes the above; and
  • "Offers a written medical opinion as to all of the reasonably anticipated future medical needs of the claimant related to the claimant's work injury or illness/disease."

Future Treatment

• "Determine the cost of future medical expenses that are directly related to the injury or illness suffered by the worker. This amount can be determined by reviewing medical records and past medical expenditures. The WCMSA must show the amount of money that should be invested to provide the yearly expenses for the worker’s life expectancy."
• "Note: In order to protect Medicare’s interests, a WCMSA should be funded based on the life expectancy of the claimant unless state law specifically limits the length of time that WC covers work-related conditions. The key is that both the principal amount that is to be set aside and the anticipated interest that it will earn must be sufficient to provide for the worker’s future medical treatment and administration fees for the worker’s lifetime."
• "Identify specific types of medical services or items, the frequency and duration of the medical services or items, and the projected costs of the medical services or items related to the work injury or disease that are expected in the future in light of the claimant's condition."

Time Frame

• "When you submit a WCMSA for review, CMS tries to review and decide on proposed settlements within 45 to 60 days from the time that all relevant documents are submitted."
• "Parties to the settlement may settle the indemnity (non-medical-expenses) portion of the claim separately from the WCMSA portion, in order to avoid having indemnity payments continue while CMS is still reviewing the proposal. CMS will still consider the whole claim, including indemnity, in its threshold calculations."

Administration

• "Once a WCMSA is established and funded, it must be administered."
• "This can be done by the claimant, by the claimant’s representative payee, appointed guardian, or conservator, or by a professional administrator."
• "The administrator of the account will be responsible for keeping accurate records of payments made from the account."
• "The administrator must establish the WCMSA account, pay Medicare-covered services from the WCMSA account, and provide CMS with a reporting of the expenditures from the WCMSA."
• "Every year, beginning no later than 30 days after the 1-year anniversary of settlement the administrator must sign and send a statement that payments from the WCMSA account were made for Medicare-covered medical expenses and Medicare-covered prescription drug expenses related to the work-related injury, illness, or disease."

Death of the Claimant

• "If a claimant dies before the WCMSA is completely exhausted, the [Regional Office] and [Medicare Secondary Payer Recovery Contractor] will ensure that all claims have been paid."
• "Then any amount left over in the WCMSA may be disbursed pursuant to state law, once Medicare’s interests have been protected."
• "This may involve holding the WCMSA open for some period after the date of death, as providers, physicians, and other suppliers are permitted to submit their initial bill to Medicare for a period of 12 months after the date of service."
• "Often, the settlement itself will dictate the appropriate dispersal of funds up on the death of the claimant."

For additional S2KM reporting about government benefit issues, see the structured settlement wiki. For analysis of the interaction of structured settlements and government benefits, see Chapter 15 of "Structured Settlements and Periodic Payment Judgments" (S2P2J).