Staying In Your Lane: Navigating the Ethics of Medicare Set-Asides

7.16.2019 Blog

Medicare Secondary Payer (MSP) compliance is a detailed, somewhat complicated, and often dynamic field. MSP law and regulations are constantly evolving and subject to some interpretation. MSP consultants contend with claims and risk management concerns, medical and health sectors, legal and privacy issues, and both federal and state government agencies. Various professionals with overlapping roles include physicians, nurses, attorneys, adjusters, and settlement consultants. A large component of the MSP practice involves the analysis, preparation, and submission of Medicare Set-Aside (MSA) proposals; ethical issues can arise during this process.

Initially, an MSA consultant must be competent with command of all applicable federal and state statutes and regulations and experience complying with those laws. Medicare Set-Aside Certified Consultant (MSCC) and Certified Medicare Secondary Payer (CMSP) credentials indicate a level of knowledge while continuing education programs and seminars provide additional training, insight, and updates. Involvement in professional organizations such as the National Alliance of Medicare Set-Aside Professionals (NAMSAP) offers educational opportunities, programs and can act as a sounding board.

Regarding the actual analysis and preparation of MSAs, integrity and independence are essential. The consultant must first gather the necessary background and factual material and in particular, complete medical records. This information is usually obtained from insurers, claims administrators, and the parties and their attorneys. Sometimes, complete records must be requested from medical providers. The impetus is on the consultant to ensure that all necessary information is available and to then conduct a thorough analysis. This process also requires confidentiality of medical and personal information with use of specific, legal consent to gather and share a claimant’s status.

Next, the consultant should remain independent from dictates or wishes of the various participants. An MSA allocation should give Medicare’s interests adequate consideration as dictated by objective facts and supported by reasoned and experienced analysis. MSP consultants should not be advocates, but as with our firm, may also be attorneys. Citing legal defenses and including factual arguments is permissible and in our view, entirely relevant in assessing whether Medicare’s interests are adequately considered or if Medicare is the proper primary payer for unrelated conditions or care. Whether the MSA is prepared by an attorney or other professional, knowing when to consult with medical and other experts is also important. Medical professionals such as nurse consultants are invaluable when preparing MSAs for more complicated and catastrophic claims.

At times, certain facts present ethical questions. Examples include treating providers who previously made remote recommendations for costly mitimedical care or reference a long “laundry list” of possible future treatment. Usually, these statements fall short of current future treatment recommendations. In other cases, a claimant may decline to undergo recommended treatment. In such circumstances, the MSP consultant might still propose a conservative allocation excluding these items, but should notify its client of the potential exposure and related costs. As with the ultimate decision of whether or not to submit an MSA to CMS for approval, the determination to settle a claim with funding of a proposed or even approved MSA is not made by the MSP consultant.

One timely concern within the MSP arena is the inclusion of opioid and other narcotic medications in MSA plans. Given the ongoing opioid crisis in our country, the allocation of these drugs over several years poses serious ethical and medical issues. Suggestions from MSP professionals include weaning and tapering of these drugs and use of professional administration of MSA funds as an extra oversight layer. To that end, NAMSAP leadership has addressed this and other concerns with CMS representatives.

NBKL has a team of knowledgeable, credentialed, involved, and experienced MSP attorneys with workers’ compensation and liability backgrounds. We can help the many participants and interested parties navigate MSAs and MSP compliance.


The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.