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The sage Jedi Master, Yoda, told Luke Skywalker that to gain heightened enlightenment, “You must unlearn what you have learned.”
In a workers’ compensation setting, Medicare’s role and its involvement in claims can be a very confusing space for many. In the recent landmark case, Loper Bright and Relentless, Inc., the Supreme Court of the United States overturned 40 years of standing policy established by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
By way of background, Chevron set forth a precedent requiring courts to defer to “permissible” interpretations of Federal statutes by agencies that administer those laws, even if or when reviewing courts maintained different interpretations.
The Court in Loper overturned Chevron, concluding that Chevron’s presumption of deference was misguided because agencies lack the special competence of the Courts to answer questions about statutory uncertainties.
The underlying facts in Loper concerned a challenge to a fishing management Act to prevent overfishing. In part, the Act requires an “observer” on vessels to verify limits are not exceeded. The U.S. government provided and paid these monitors until 2013. After that, the agency made the fishing companies responsible for obtaining and paying for the observers. The litigants claimed this change cost them up to 20% of annual returns to remain in compliance. A few family-run fisheries challenged the imposition of this additional cost they were being forced to pay. The Federal agency relied upon Chevron to justify the cost shift.
By overturning Chevron, the Supreme Court of the United States removed the agency’s absolute authority to make policy. The ripple effect of this action will extend to numerous other Federal agencies that relied upon Chevron for policy making, including Medicare.
In the wake of Loper, Courts remain required to continue to “respect” an agency’s expertise and information when deciding how to interpret a statute but must no longer blindly defer to how an affected agency believes questions arising from statutory ambiguities should be resolved. Coincidentally, the Supreme Court abbreviated the law at issue in Loper as “MSA” even though it had nothing directly to do with Medicare. For those unfamiliar, “MSA” is an abbreviation used in a Medicare setting for “Medicare Set-Aside,” the title for an account designed to defray Medicare’s costs for future medical treatment of an individual from a work injury.
So, does Loper have any effect on Medicare’s role in workers’ compensation claims? It is no cliché’ to declare that the entire landscape is rife with possibilities. All we can know for certain is that the statutory requirement remains to protect Medicare’s interests in each and every workers’ compensation claim. For about the past 20-25 years, Medicare and its agents have informed workers’ compensation stakeholders and MSP professionals regarding the methods to go about protecting Medicare’s interest, as well as the consequences for failing to heed their instruction. In light of Loper however, questions begin to surface regarding Medicare-related issues and whether Medicare’s specific missives and instructions remain appliable. It is reasonable to anticipate that Medicare will initially not change much, if anything, about how it addresses the items faced in workers’ compensation cases, and that once litigation commences in the Courts, Medicare will probably not just take an exclusively defensive position. Before that even begins, I have concern that some of the judicial outcomes may prove more unfavorable to employers than prior to Loper.
Personally, a few questions I’m pondering include:
- How will Courts decide how and when Medicare’s interests are adequately addressed during the resolution of a workers’ compensation case?
- Will Loper affect CMS’ review thresholds for WCMSAs?
- Will guidance from other governmental units that have historically been disregarded in WCMSAs now get recognized by Medicare and its contractors? For instance, some MSA projections have included up to decades of ongoing narcotics usage. On the other hand, the CDC condemns opioid use beyond a few months in most situations.
- Will new avenues avail themselves about how to protect Medicare’s potential interests in the future?
- Will protocols be created or adopted for what constitutes the reasonable future medical treatment needs of an injured worker? If so, will those recognize evidence-based medical studies and guidelines?
- Medicare has long disregarded IME opinions regardless of the physician’s expertise and rationale. Will that change?
- Will we see changes to the definition of what a “conditional payment” is, or the timeframe and process for Medicare to pursue reimbursement? If so, what will be the impact of those changes on payments made by Medicare Advantage (“Part C”) and Prescription Drug (“Part D”) Plans, if any?
Regardless of the answers to these and many other questions now being considered in the aftermath of Loper, one thing is nearly certain; what we know presently about the entanglement between Medicare and workers’ compensation claims won’t be the same much longer.
If you have questions concerning the Loper decision or Illinois workers’ compensation, please feel free to contact me.