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How to Qualify for SSDI or Medicare (Even if a Non-US Citizen)
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How to Qualify for SSDI or Medicare (Even if a Non-US Citizen)

Some people may be surprised to learn that an individual does not always need to be a citizen of the United States to qualify for government benefits such as Social Security Income (SSI), Social Security Disability Insurance (SSDI) or Medicare.  Provided the individual receives or qualifies to receive SSI or SSDI benefits, and the person otherwise qualifies for Medicare, a non-US citizen (non-citizen) typically qualifies for Medicare Part A without having to pay a premium.  They would still need to pay a premium for Medicare Part B.  Before addressing how a non-citizen may become eligible to receive Social Security benefits and therefore, be one step closer to qualifying for Medicare, we will first look at the distinctions between SSI and SSDI and how US citizens become eligible for either.

SSDI and SSI Requirements for U.S. Citizens

For U.S. citizens to qualify for SSDI, they must be under 65, have earned enough work credits[1] by working and paying Social Security (FICA) taxes, and have a qualifying disability sufficient to meet the definition designated by the Social Security Administration (SSA).  A majority of those who apply for SSDI do not get accepted on the first try. Many injured individuals have found value in retaining attorneys to help with the application (and the commonly required appeals) process.

A major distinction between SSDI and SSI is that SSI does not require any work history or a disability, even though disability is one of the ways a person may qualify for SSI.  For example, those that are disabled but haven’t accumulated enough work credits to be eligible for SSDI, may qualify for SSI.  Furthermore, U.S. citizens who are 65 or older, or who are blind or are disabled, and have limited income and limited resources, and are not confined to an institution, are generally eligible for SSI.  Another important distinction between SSDI and SSI is that once a person receives SSDI benefits for two years[2], the SSDI recipient will be eligible for Medicare benefits.

Requirements for Non-U.S. Citizens

If a person is a non-citizen and meets the following requirements, they may be eligible for Social Security benefits:

  • Non-citizens who are legal permanent residents
  • Active members or veterans of the U.S. military
  • Foreign workers who have paid FICA taxes for the required time period[3]
  • Other non-citizens who are not permanent residents but who can prove that they are here legally (i.e. refugees, those under political asylum, temporary visitors with non-immigrant visas, abuse victims, etc.)

There are many exceptions and rules regarding non-citizens’ status and SSI and SSDI eligibility.  Additionally, non-citizens that are allowed to work in the US but not required to pay FICA taxes (and don’t), are not eligible for SSDI.

Aside from standard SSDI eligibility requirements that everyone must meet*, there are two additional requirements that non-citizens must meet in order to qualify for SSDI:

1.  If an individual was assigned a Social Security number on or after January 2, 2004, the individual’s number must have been assigned based on their authorization to work in the U.S. or they must have B-1, D-1, or D-2 worker status.

2.  Before receiving disability benefits, the individual must show proof that they are in the U.S. legally.

Non-Citizens Returning to their Countries

Once an individual receives either type of Social Security benefits as a non-citizen, if, when and how these benefits will be distributed depends on the country that they are citizens of and how much time they may spend in that country, whether that country is on a restricted list, and whether that country has a bilateral Social Security agreement with the U.S.  Some countries that the SSA is restricted from sending Social Security payments to, such as those listed below, are disqualified from accepting Social Security payments.

  • Azerbaijan
  • Belarus
  • Cuba
  • Kazakhstan
  • Kyrgyzstan
  • Moldova
  • North Korea
  • Tajikstan
  • Turkmenistan
  • Ukraine
  • Uzbekistan
  • Vietnam

Ineligible Countries

Legal residents from Cuba, North Korea, and Vietnam may not receive disability benefits, even if they meet the other necessary requirements.

If a citizen of one of the above-listed countries, other than from Cuba, North Korea or Vietnam, goes back to their home country after working and living in the U.S. and otherwise qualifies for a form of Social Security Benefits, the SSA will not send the individual payments and cannot send the payments to someone else on their behalf (unless an exception is granted).  The SSA will withhold these payments and will only send them to the individual once they are in a country to which the U.S. may send those payments.  Generally, if the SSA is not restricted from sending payments to a particular country, but the country also does not have a bilateral Social Security agreement in place with the U.S., the SSA can send payments to the individual, but will stop the individual’s payments after the person has been outside of the U.S. for six months.  If the individual returns to the U.S. and stays for at least a month, they are usually eligible to begin receiving benefits again. The SSA’s website provides information and exceptions concerning these matters including the difference between a person receiving benefits based on their own earnings or residency in the U.S. versus receiving benefits based on the earnings or residency in the U.S. of a dependent or survivor.  A pamphlet that provides additional information is available on SSA’s website.

The Medicare Secondary Payer Act (MSP), 42 U.S.C. §1395y(b)(2), enacted in 1980 and aimed at preserving Medicare Trust Funds and reigning in Medicare costs that had up to that point been much larger than projected[4], is focused on both the timing of payments and the recovery of Medicare’s conditional payments[5] for medical expenses [6] of injured Medicare beneficiaries or injured people who have a reasonable expectation of becoming Medicare beneficiaries within 30 months from settlement, when another (primary) payer is responsible for payment or prompt reimbursement of the injured individual’s injury related Medicare covered medical expenses.[7]  There are several ways people fall into the reasonable expectation of becoming a Medicare beneficiary within 30-month time frame, including reaching 62.5 years of age, applying for SSDI, being denied but considering appeal of SSDI denial, being in the process of appealing the denial, or being diagnosed with end-stage renal disease or ALS, a/k/a Lou Gehrig’s disease.


[1]  The number of work credits needed varies based on the age of the individual at the time they become disabled.  Required credits start at 6 credits or 1.5 years of work during the three-year period before the disability started for people disabled in or before the quarter they turn 24 years of age and move up to a requirement for 40 qualifying quarters at or after they turn 62 years of age, with varying requirements in between.

[2]  The two years does not include the approximate six-month wait time between the date disability is approved and benefits begin.  Eligibility begins 30 days after established onset date (EOD) so along with a mandatory five-month waiting period, it is essentially six months before payments start or 30 months from EOD to Medicare eligibility.

[3]  *According to the SSA website, the required work requirements for non-citizens seem to be different from those of US citizens as well.  The requirement for non-citizens does not appear to have a sliding scale for work credits that US citizens are required to have.  Here is an example of some non-citizen requirements for SSDI eligibility from SSA’s website: “[t]hey are a Lawfully Admitted for Permanent Residence (LAPR) with 40 qualifying quarters of earnings.  Work done in the US by a person’s spouse or parent may also count toward the 40 qualifying quarters of earnings, but only for getting SSI. Quarters of earnings earned after December 31, 1996 are not counted if the individual, spouse, or parent worked or received certain benefits from the U.S. government based on limited income and resources during that period. If a person entered the U.S. for the first time on or after August 22, 1996 they may not be eligible for SSI for the first five years as a LAPR, even if they have 40 qualifying quarters of earnings.” More information regarding this topic is available here.  Sometimes depending on the country of citizenship, there may also be other ways for a non-citizen to qualify for SSI including living in the US for required periods of time or having a spouse or parent who has lived long enough in the U.S. (See https://www.ssa.gov/pubs/EN-05-10137.pdf).  You are encouraged to consult with an attorney practicing in the SSI and SSDI field to help determine whether any particular person may qualify for Social Security benefits.

[4]  Humana Med. Plan, Inc. v. Western Heritage Ins. Co., 2018 WL 549834 (11th Cir. Jan. 25, 2018) (declining to rehear 2016 11th Cir. case en banc and citing 5 James B. Wadley, West’s Federal Administrative Practice §6305 (2017)).

[5]  Or conditional payments by Medicare Advantage Plans that a primary payer should have paid.

[6]  Medical items, services and prescription drug expenses.

[7]  42 U.S.C. § 1395y(b)(2)(A)(ii) prohibits Medicare from making payment to the extent that “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance.” Furthermore, under the Code of Federal Regulations, the Centers for Medicare and Medicaid Services (CMS) has rights to recover any conditional payments Medicare made that a primary payer should have made or reimbursed, specifically, “CMS may initiate recovery as soon as it learns that payment has been made or could be made under workers’ compensation, any liability or no-fault insurance, or an employer group health plan.” 42 C.F.R. § 411.24(b).

CRC Conditional Payment Recovery Report FY 2016
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CRC Conditional Payment Recovery Report FY 2016

In August of 2017, the Medicare Secondary Payer Commercial Repayment Center, also known as the MSP CRC or CRC for short, prepared its annual recovery report for Congress relating to Medicare Secondary Payer Statute (MSP)[1] conditional payment recoveries for fiscal 2016.  The CRC determined, largely from responses to over 29,700 demand letters, that $243.68 million of conditional payments made in FY 2016 were “correctly identified” for further recovery efforts.  The CRC reported returning over $88.35 million of these identified conditional payment dollars to the Medicare Trust Funds.[2]   This number was based on net collections of $106.29 million minus administrative and CRC contractor costs of $17.94 million.  Because recovery efforts for these conditional payments will continue in the future, the recovery amounts associated with the FY 2016 conditional payments will likely increase over time.

While the amount returned to the Medicare Trust Funds decreased from $125.05 million for FY 2015 conditional payments to $88.35 million for FY 2016 payments, this reduction should not be seen as a trend. The decrease between FY2015 and FY2016 was mainly from reduced Group Health Plan (GHP) recoveries resulting from “maturity of mandatory reporting” under Section 111 of the Medicare Secondary Payer (MSP) Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) and the CRC’s “resolution of pending available recoveries.”

The CRC is the generic name for the contractor hired by the Centers for Medicare & Medicaid Services (CMS) to be responsible for identifying and recovering primary payments made by Medicare when another entity had primary payment responsibility for medical items or services, including prescription drug expenses (“Medical Bills”), pursuant to the MSP.  The CRC became fully operational in 2014 under the company known as CGI Federal and initially focused its post-payment review and recovery efforts in the GHP field.

In FY 2016, CMS expanded CRC’s recovery efforts to also include recovery of conditional payments made by Medicare when a Non-Group Health Plan entity such as a liability insurer (including self-insurance), no-fault insurer, or workers’ compensation entity (NGHP) had primary payment responsibility or ongoing payment responsibility for Medical Bills.  In October 2017, CMS announced that Performant Recovery, Inc., an experienced auditing and recovery contractor for both CMS and the Department of Treasury, and a subsidiary of publicly traded Performant Financial Corporation, will be taking over the CRC contract beginning February 12, 2018.  Recovery claims against Medicare beneficiaries will still be performed by the Benefits Coordination & Recovery Center (BCRC), the same group that CMS uses to collect Section 111 reporting data.  Performant, as the new CRC contractor, recently promised to coordinate its communication with the BCRC.

According to CMS, in 2011, Medicare spent $549.1 billion dollars while covering covered 48.7 million people.  The money used to run the program comes from the Medicare Trust Funds.

Take Aways:

  • It makes sense that Group Health Plans have been more compliant with promptly paying Medical Bills they have primary responsibility for and/or promptly reimbursing Medicare for conditional payments when the potential for double damages claims exist under the public cause of action provisions of the MSP by CMS[3] and under the private cause of action provisions of the MSP by Medicare Advantage Plans (MAPs) (or their assignees).[4]  Additionally, potential civil monetary penalties under Section 111 of the MMSEA of $1,000 for each day of noncompliance for each individual for which a report is to be submitted.[5]
  • It will be interesting to see how the recently awarded contract to an experienced government collector like Performant that takes effect February 12, 2018 [as referenced in our prior blog], the continued expansion of both Medicare and MAP recoveries into NGHP categories (along with the reviews of Liability Medicare Set-Asides (LMSAs) potentially beginning as early as the summer of 2018 by the newly awarded Workers Compensation Review Contractor (WCRC), Capitol Bridge, LLC[6], along with the potential for better communication and integration of data exchanges between Performant and the BCRC, may affect conditional payment recoveries in the years to come.

[1] 42 U.S.C. § 1395y(b)(2)

[2]  There are two trust funds; the first is called the Hospital Insurance Trust Fund and is funded by payroll taxes, income taxes on Social Security benefits, interest on trust fund investments, Medicare Part A premiums, and from people not eligible for premium-free Part A.  The second trust fund is called the Supplementary Medical Insurance Trust Fund and is funded by Congress, Medicare Part B premiums, Medicare prescription drug coverage (Part D) premiums, along with interest earned on the trust fund investments. Additional information is available here.

[3] 42 U.S.C. § 1395y(b)(2)(B)(iii).

[4] 42 U.S.C. §1395y(b)(3)(A).

[5]  42 U.S.C. § 1395y(b)(7)(B)(ii).

[6] On September 1, 2017, CMS announced the contract for WCRC for $60 million for one year with options for four one-year extensions to Capitol Bridge, LLC. Two other bidders protested the award but those bid protests were denied on December 12, 2017.  The original December 22, 2016 RFP announced the potential of anywhere from 600 to 11,000 additional LMSA reviews in addition to the WCMSA reviews expected.  On February 13, 2017, CMS amended the RPF with both a Statement of Work and Responses to Questions from bidders, making it clear that the additional reviews included both LMSAs and No-Fault MSAs (NFMSAs), again referenced the potential for 11,000 reviews, and indicated that “All LMSA/NFMSA processes shall mimic existing processes nearly identically through the establishment of threshold values.”

 

MSP CRC Recovery Contractor Update by CMS and Performant
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MSP CRC Recovery Contractor Update by CMS and Performant

On January 18, 2018, Centers for Medicare & Medicaid Services (CMS) announced in a joint conference call with the new Medicare Secondary Payer Commercial Repayment Center contractor (MSP CRC or CRC for short), Performant Recovery, Inc. (Performant)[1], that the CRC will continue to have the same phone number as before, but will have a new address and fax number as follows:

Medicare Commercial Repayment Center
NGHP ORM, PO Box 269003
Oklahoma City, OK 73216

Phone: 855-798-2627 (SAME)
Fax: 844-315-7627 (NEW)

The transition timeline is listed below:

CGI Federal will cease operations as contractor at 8 p.m. EST on Wednesday, February 7, 2018. Performant will commence operations as the new CRC contractor at 8 a.m. EST on Monday, February 12, 2018.  Performant will have access to all of the same information as CGI Federal and there shouldn’t be any information gaps when Performant takes over.

The fax line for CRC will be turned off on Monday, February 6, 2018, at 8 p.m. ET.  There will be no “normal” CRC operations on Thursday, February 8th or Friday, February 9th. The CRC’s 1-800 line IVR will be turned off at noon ET on February 9th and will not be staffed nor will it take incoming calls. While the CRC call center will open on February 8th and 9th, the information available to CRC’s representatives will be limited to whatever information existed at the close of business on Wednesday, February 7th.  During this time period, the MSPRC Portal will have limited functionality and parties will be able to pull information from the portal but will not be able to push information including disputes to CMS.

The CRC is the generic name for the contractor hired by CMS to be responsible for identifying and recovering primary payments made by Medicare when another entity had primary payment responsibility for medical items or services, including prescription drug expenses, pursuant to the Medicare Secondary Payer Act (MSP).[2]  The CRC became fully operational in 2014 under the company known as CGI Federal and initially focused its post-payment review and recovery efforts in the Group Health Plan (GHP) field.  In Fiscal Year (FY) 2016, CMS expanded CRC’s recovery efforts to also include conditional payments made by Medicare when a Non-Group Health Plan entity such as a liability insurer (including self-insurance), no-fault insurer, or workers’ compensation entity (NGHP) had primary payment responsibility or ongoing responsibility for payment of medical bills (ORM).

Take Aways:

  • Performant promised during the conference call to improve communication between CRC and the BCRC with a goal to make the transition for its takeover of CRC recoveries seamless.
  • Performant will follow the policies set forth by CMS so unless CMS makes a change in policy, there should not be any major changes in the overall business, other than hopefully quicker response times and shorter wait times on the phone.
  • The long-term goal, will most likely be for Performant to use its size, industry knowledge and technical experience to increase both volume and efficiency of CRC recoveries.[3]
  • Moving forward, primary payers will want to be aware of the potential for more concentrated efforts in the MSP recovery field.

[1] Performant, whose parent corporation, Performant Financial Corporation, is publicly traded on the NASDAQ stock exchange as PFMT, was one of four CMS contractors for the Recovery Audit Program (RAP) that in FY2015, returned a net of $147.5 million to the Medicare Trust Funds. Available at https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Downloads/FY2015-Medicare-FFS-RAC-Report-to-Congress.pdf. Performant currently handles two of the five regions for the RAP.

[2] 42 U.S.C. 1395y(b)(2).

[3] At full scale, Performant anticipates staffing the CRC program with over 250 employees operating out of Performant’s offices around the country.  November 7, 2017 Performant Press Release announcing 3rd Quarter Financial Results, available at https://globenewswire.com/news-release/2017/11/07/1176774/0/en/Performant-Financial-Corporation-Announces-Financial-Results-for-Third-Quarter-2017.html.

 

 

LMSAs Not Required By Law, Federal Court Confirms
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LMSAs Not Required By Law, Federal Court Confirms

What Happened:

Silva v. Burwell[1] is a federal trial court case from late November 2017 in which the plaintiff, Silva, asked a federal court to declare whether a liability Medicare set-aside (LMSA) was required after funding of a proposed state court medical malpractice settlement had been conditioned upon getting such federal court confirmation.  The only unresolved issue was how future medical bills were to be handled because all of Medicare’s conditional payments for past medical expenses had been reimbursed by plaintiff as contemplated by the Medicare Secondary Payer provisions of the Social Security Act, often referred to as the Medicare Secondary Payer statute found at 42 U.S.C. Section 1395y(b) et seq. (MSP).

The state court defendants felt a LMSA was legally required and were concerned that Medicare might seek reimbursement for payments incurred post-settlement for treatment of the medical malpractice injury.  The plaintiff disagreed, arguing that there was no requirement under the law for LMSAs. Plaintiff pointed out that review thresholds by the Centers for Medicare & Medicaid Services (CMS) for MSAs exist only in the workers’ compensation context and do not extend to liability/personal injury settlements. Plaintiff asked CMS to set forth its position whether some portion of personal injury liability settlement funds must be set aside to cover “unknown, unspecific future medical expenses.”[2]

With such a non-specific question, it is not surprising that CMS did not respond. However, even if plaintiff had asked CMS for its position regarding known specific future medical expenses, the result would likely have been the same, as CMS doesn’t require Medicare set-asides (MSAs), doesn’t require submission of MSAs, and doesn’t have a practice or procedure for reviewing LMSAs like it does for workers’ compensation Medicare set-asides (WCMSAs).[3]  To satisfy a settlement condition and in an attempt to get funds released, plaintiff filed a declaratory judgment action in federal court against CMS and the former Secretary of the Department of Health and Human Services (Secretary) asking for several confirmations, including that no LMSA was required to pay plaintiff’s future medical expenses.

During an analysis of the MSP and whether there was a requirement for LMSAs, the court referenced CMS’s 2012 notice of proposed rulemaking[4] concerning potential regulatory clarification on LMSAs and pointed out that CMS never followed up on the notice.[5]  The Silva court then correctly determined that “no federal law or CMS regulation [currently] requires the creation of a MSA in personal injury settlements to cover potential future medical expenses.”[6] The Silva court shared the Sipler[7] court’s public policy concern that requiring apportionment of future medical expenses in personal injury settlements would discourage settlements due to being burdensome.[8] The court added that the repeated failure of CMS to clarify an official position on whether it requires LMSAs generally, or in specific cases when requested by personal injury litigants, was also proving burdensome to the settlement process.[9]

Result of the case:

The court then went through a “case or controversy” analysis to determine whether the plaintiff had standing for the court’s review.  A plaintiff who has not sustained an “injury in fact” will not have standing.  In this case, because there was a) no conflict between the law as it exists, and the way business was being done, b) not a sufficient likelihood that the government would seek reimbursement in the future (from plaintiff or defense) for failing to create a MSA in the liability case, and c) no requirement for CMS to confirm whether a LMSA was required, there was no injury in fact.  The lack of a duty by CMS to respond to plaintiff’s request was also described as preventing the case from being ripe.  Because there was not a sufficient injury and the matter was not ripe for review, the case was dismissed for lack of subject matter jurisdiction.[10]

Take Aways:

  • The law is clear.  No LMSA is required.  While the Silva court did not mention that CMS may potentially begin reviewing LMSAs as early as July 1, 2018, a change in procedure by CMS to review some LMSAs would still not change the law as it stands.
  • CMS has guidelines for reviewing WCMSAs and while CMS, via the Stalcup Memo, set forth CMS’s policy that a “set-aside” is its method of choice, the Stalcup Memo also made clear that “the law does not require a ‘set-aside’ in any situation.”[11]
  • The Stalcup Memo stressed the need to protect the Medicare Trust Funds if based on the specific facts of a case (and regardless of the type of case), there is funding for future medicals.[12]
  • While the Silva case did not clear up the law, it did not necessarily make it more confusing. Federal cases concerning the ripeness for review of LMSAs or performing review of LMSAs have remained in district courts. Unless a split emerges at the federal Circuit level, the US Supreme Court will not rule on the issue.  Liability cases are dependent on the facts and so are the questions about treatment of LMSAs.
  • Therefore, it will be up to CMS to propose and follow through with regulations governing LMSAs. A change in policy by CMS could be helpful for parties and courts, but won’t guarantee consistency. There are cases where federal district courts have reviewed LMSAs.  For example, in Schexnayder v. Scottsdale, a federal court agreed to review a LMSA and decided that parties to the liability settlement had adequately protected Medicare’s interests after CMS failed to review the LMSA.[13] Other federal district court cases have reviewed liability settlements and approved amounts to be set aside in LMSAs[14], or otherwise evaluated and determined that Medicare’s interests had been reasonably considered and protected.[15]
  • The Silva case highlights the time, expense and legal obstacles associated with trying to get clarification/confirmation from courts in the area of MSP compliance.
  • When medical expenses are implicated, it may be more productive for parties to invest their time and effort into accurately predicting and documenting what future Medicare allowable medical expenses are likely to be incurred instead of risking the time and expense of federal court review, and running the risk of a dismissal for lack of subject matter jurisdiction like in Silva, or an increase in the LMSA amount, like in the Welch v. American Assurance case cited in the endnotes.
  • What is required when future medicals are “in play” in liability (including self-insurance) settlements? The Stalcup Memo advised that “each attorney is going to have to decide, based on the specific facts of each of their cases, whether or not there is funding for future medicals and if so, a need to protect the Trust Funds.”[16] Therefore, parties need to consider and protect the Medicare Trust Funds. Often, a LMSA is the best choice. There may be other options that could be considered if well documented and properly executed during administration.

[1] Silva v. Burwell, 2017 Westlaw 5891753 (D. New Mexico 2017).

[2] Id. 2-3.

[3] Sally Stalcup, MSP Regional Coordinator, Region VI (May 25, 2011 Handout); See also, Schexnayder v. Scottsdale Ins. Co., 2011 WL 3273547 at 5 (W.D. La. 2011) (adopting policy from the Stalcup memo in Court’s findings of fact).

[4] Medicare Program; Medicare Secondary Payer and “Future Medicals,”77 Fed. Reg. 35917-02, 35918 (June 15, 2012).

[5] Silva v. Burwell, 2017 U.S. Dist. LEXIS 195032 (D. New Mexico 2017) at 6 citing Aranki v. Burwell, 151 F. Supp.3d 1038, 1040 (D. Ariz. 2015).

[6] Id. at 11 citing Aranki v. Burwell, 151 F. Supp.3d 1038, 1040 (D. Ariz. 2015); Sipler v. Trans Am Trucking, Inc., 881 F. Supp.2d 635, 638 (D. NJ. 2012)(holding “no federal law requires set-aside arrangements in personal injury settlements for future medical expenses.”).

[7] Sipler v. Trans Am Trucking, Inc., 881 F. Supp.2d 635, 638 (D. NJ. 2012).

[8] See id. at 13.

[9] Id.

[10] Id. 12-13.

[11] Sally Stalcup, MSP Regional Coordinator, Region VI (May 25, 2011 Handout) at 1.

[12] See id. at 3 (“. . . IF there was/is funding for otherwise covered and reimbursable future medical services related to what was claimed/released, the Medicare Trust Funds must be protected”).

[13] Schexnayder v. Scottsdale Ins. Co., 2011 WL 3273547 at 5 (W.D. La. 2011).

[14] See e.g. Benoit v. Neustrom, 2013 WL 170220 (W.D. La. 2013) (determining that there was an obligation for a LMSA); Cribb v. Sulzer Metco (US) Inc., 2012 WL 4787462 (E.D. NC 2012) (approving a $4,500 LMSA); and Welch v. American Home Assur. Co., (S.D. Miss. 2013) (increasing amount of LMSA over the amount recommended by Medicare Set-Aside expert in combo liability and WC case).

[15] See Finke v. Hunter’s View, Ltd., 2009 WL 6326944 (D. Minn. 2009)(LMSA not necessary after court determined that liability settlement amount was a significant compromise of the overall value of the claim, with a plaintiff who was not a Medicare beneficiary, would not become eligible for Medicare benefits within the foreseeable future, was covered under his spouse’s health insurance policy, and when Medicare would be reimbursed for conditional payments and not be billed in the “reasonably anticipated future.”)

[16] Sally Stalcup, MSP Regional Coordinator, Region VI (May 25, 2011 Handout) at 3.

 

Opioid Problem For Injured Workers Prompts New CA Regulations
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Opioid Problem For Injured Workers Prompts New CA Regulations

Under California Labor Code, doctors must provide evidence-based medical treatment. On December 1, 2017, evidence-based updates to the Medical Treatment Utilization Schedule were ordered by the Administrative Director of the California Division of Workers’ Compensation. On January 1, 2018, new formulary regulations that implement California Assembly Bill 1124, amending and adding sections to Chapter 525 of the California Labor Code go into effect.

An overall goal of these regulations is to provide for the health and safety of injured workers. As listed in the Statement of Reasons accompanying the formulary regulations through the CA Dept. of Industrial Relations website, additional goals of these new formulary regulations include:

• Providing “critical support for the effort to encourage safer prescribing of opioid pain relievers.”

• To “significantly reduce the rate of opioid-related adverse events, substance misuse and abuse.”

• To “streamline the provision of pharmaceutical treatment, and incentivize cost effective care within the current evidence-based MTUS and care delivery system.”

• To “promote the timely delivery of evidence-based medical treatment by eliminating prospective utilization review for exempt drugs used in accordance with the treatment guidelines.”

• To “reduce prescribing volume for some Non-exempt drugs – especially opioid analgesics – in an effort to lower rates of adverse events, drug-drug interactions, and, in the case of prescription opioid analgesics, potential misuse and abuse.”

The opioid prescription problem will likely be addressed by more states through similar regulations as the scope of the opioid problem grows larger and its effect on states’ workers is revealed.

See the text of the regulations and the accompanying Statement of Reasons here.