The Burns White Medicare Compliance Group serves our clients best in providing creative solutions to Medicare Set-Aside dilemmas. This often means using the law to present an argument to Medicare in support of an MSA amount. For every case, we have a team of nurses project the anticipated future medical costs, which are then reviewed by a licensed attorney who provides a legal analysis. We consider the Medicare Set-Aside not only a medical document, but also a legal document that can be persuasive in the settlement process. When evaluating a Medicare Set-Aside case, we are always mindful of this principle.

Our legal skills have proven to be of benefit to our clients. As attorneys, we practice the law and we understand the impact various laws have on Medicare Set-Asides. Not all Medicare Set-Asides will need legal arguments to be made. But, when applicable, we place great emphasis on incorporating relevant law into our allocations to make certain that Medicare is acting within the bounds of what is allowable within the claim’s jurisdiction. We frequently use judicial orders, termination petitions, notices of denial or other state-specific legal documents to make our case to CMS.

Our attorneys work closely with claims specialists and defense counsel to develop legal strategies. We incorporate legal findings into our Medicare Set-Asides, and we advise Medicare that these findings should be binding on the allocation. Some examples of our work include defending exclusions of denied body parts and presenting zero allocations in denied cases. If we have a judicial order identifying the compensability of certain bodily injuries, or assigning liability we incorporate those findings into our allocation as well. If a judge has rendered a decision regarding future medical treatment, we will craft our allocation to reflect what is permissible and make a legal argument for exclusion. We would inform Medicare that it is bound to these decisions, and our allocation would be prepared to reflect those decisions.

We also utilize our legal skills in Medicare conditional payment disputes. We incorporate legal documents in formal lien appeals, particularly with regard to denied or disputed claims. We have made formal lien appeals requesting Medicare to apportion liability for conditional payments in accord with a judge’s assignment of liability. We have even argued Medicare conditional payment disputes before Federal Administrative Law Judges in formal hearings. The possibility that your case may require Medicare litigation is reason enough to use a legal-based MSA provider.

Also, as a Medicare Set-Aside provider, we maintain a constant awareness of the ever-changing federal Medicare laws and MSA review criteria. Burns White professionals belong to numerous industry organizations to keep abreast of Medicare Law and the way it is implemented in the industry. We are leaders in how Medicare laws and guidelines are applied in our profession, and we promote education of Medicare Law for our clients.

In our experience, Medicare will frequently apply relevant state and federal law. We have achieved many legal victories over the years, and we are confident we can assist you in the successful resolution of your claims.

Making our Case: Incorporation of a Legal-Medical Argument

• Settlement Authority: $50,000.00
• MSA Exposure: $763,448.00
• CMS Approval Amount: $5,719.00

Burns White was approached by an insurance carrier to prepare a Medicare Set- Aside for submission to CMS with a very precarious argument, essentially asking Medicare to give greater credibility to one doctor's diagnosis over that of another. This was a case involving a family physician’s misdiagnosis of asbestosis, when the actual diagnosis was for pleural plaque. The carrier had accepted pleural plaque, but denied asbestosis, so this issue was heavily disputed in the medical records. Burns White advised our client that Medicare does not usually make credibility determinations and does not wish to serve as a finder of fact when dealing with conflicting medical opinions. Our client was well advised of this risk, but wanted to proceed anyway. The success of our argument would determine the fate of the settlement, as the MSA for pleural plaque was $5,719, while the anticipated future medical expenses for asbestosis were in the hundreds of thousands of dollars. The only alternative to making this risky argument was to keep medicals open or not settle at all, as settlement authority was only for $50,000, which broke down to $45,500 in a lump sum, plus the MSA amount of $5,719. An MSA including treatment for asbestosis would have exceeded the settlement authority many ties over. And to leave medical open would expose the carrier to significant costs, particularly if asbestosis was determined to be compensable.

After all angles were explored, Burns White's medical and legal experts got to work and carefully crafted an allocation based on a meticulous review of the medical records and numerous arguments in support of our position.

Ultimately, Medicare approved our allocation and settlement was accomplished. This was a clear case of Burns White recognizing that in order to settle the claim we would have to prepare the lowest defensible MSA even if that meant we might be rejected upon first submission.