Structured Settlements: Medicare Secondary Payer Act

Structured Settlements: Medicare Secondary Payer Act

Eighth in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered.

Today’s Installment: Medicare Secondary Payer Act

August 13, 2019 – If there’s one area of claims resolution where structured settlements attain near universal acceptance, it’s when they are used in conjunction with settling a claim impacted by the Medicare Secondary Payer Act (MSP).

In 1980, when Congress passed the Medicare Secondary Payer Act, U.S.C. § 1395y(b), the goal was a simple and noble one: Protect the Medicare trust fund by prohibiting payment for medical services which have “been made or can reasonably be expected to be made” by a primary payer.

For about 20 years, few gave much thought to the reality that workers’ compensation and liability claims were being settled every day without even considering Medicare’s interests, creating de facto lawbreakers since many settlements involved such payments.

Even when liens for past medical costs absorbed by Medicare began to be taken seriously, future care stemming from the compensable injury and upon which the settlement value was determined, was ignored resulting in many injured workers or plaintiffs “double dipping.”

Medicare Set-Asides

To avoid shifting responsibility for future injury-related care to the secondary payer, Medicare, a cottage industry emerged offering a solution: Medicare Set-Aside (MSA) arrangements.

Companies specializing in evaluating an individual’s future accident-related medical care review the case to recommend an allocation which should be attributed to protecting Medicare’s interests. The settling parties, then, should “set aside” these funds from any settlement to ensure all are meeting their compliance requirements under the law.

Commonplace in most workers’ compensation claims, the usage of MSAs in liability settlements has grown in recent years.

Sometimes the parties opt to secure approval from the Centers for Medicare & Medicaid Services (CMS) before concluding their settlements while some companies will guarantee their evaluations and agree to hold the parties harmless if CMS refuses to honor their evaluation.

Structured Settlements Save Money

When MSAs are procured, the settling parties can choose to satisfy their MSP obligation by paying the recommended single lump sum or by providing two years’ worth of “seed money” followed by a series of annual payments for a specified period of time.

While the single lump sum option is typically the better choice on smaller (under $25,000) MSAs, substantial savings can be realized by opting for the annuitized option as the MSA increases in value.

Quantifiable savings: On the last dozen cases our firm has quoted, we’ve been able to demonstrate an average 20.37% savings on the cost of funding the MSA.

Whether the savings realized by structuring an MSA is used to reduce the overall cost of the settlement or to increase the net, non-MSA recovery to the plaintiff/claimant, there’s no denying the value of this excellent claims resolution tool.

And as MSAs become increasingly prevalent, expect claim settlement cost efficiency and fairness to strengthen.

For further reading: “A Good Fit”

Structured Settlements: Special Damages

Seventh in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered.

Today’s Installment: Special Damages

July 17, 2019 – Like wine & cheese, Rodgers & Hammerstein, peanut butter & jelly, and countless other famous pairings, certain combinations are greater than the sum of their parts.

Special damages & structured settlements are such a match made in heaven.

They go together like a horse and carriage

This I’ll tell you brother

You can’t have one without the other”

When resolving personal injury disputes, too many practitioners resort to simply tallying up damage claim numbers and consolidating the result into a single lump sum, sometimes not even reduced to its estimated present value.

This approach, while easy, fails to properly address the underlying concerns of those who’ve been injured:

Future security and a return to some semblance of normalcy

Serious accidents can result in immediate and harsh change of financial circumstances for individuals and their families when injuries are severe. An unwelcome new reality awaits many, stemming not just from one’s oft-compromised ability to earn a living, but from the cost of medical care required to treat the ensuing injury or condition.

Special damages: Damages that compensate the plaintiff for quantifiable monetary losses such as medical bills and the cost to repair damaged property (direct losses) and lost earnings (consequential damages). Distinguished from general damages, for which there is no exact dollar value to the plaintiff’s losses. (Definition from Nolo’s Plain-English Law Dictionary)

Those with physically demanding jobs may be unable to return to their previous position. A construction worker with shattered vertebrae. A truck driver with right foot paralysis. A neurosurgeon with an arm amputation. While not all accidents result in permanent injury, many struggle to make ends meet following life-altering mishaps.

For those injured on the job, indemnity and medical benefits afforded by the workers’ compensation system provide a welcome, if imperfect, remedy allowing the injured person to receive necessary medical treatment and continue meeting some of their monthly financial obligations.

For others, because recovery is dependent upon the circumstances causing the accident and available insurance coverage, the road back to financial stability can be long and stressful.

When evaluating an insurance claim or lawsuit for value, special damages are more easily quantified than their compensatory damage counterpart, general damages. And because of their unique ability to help address these needs, structured settlements are usually the best option for the parties to consider.

Why Structure Specials?

It may seem quaint in today’s world but structuring an individual’s future wage loss and medical care is simply the right approach to helping a person maintain their pre-accident lifestyle as best they can.

A person can maintain their dignity when they have ongoing resources to take care of themselves and their families despite a change in physical circumstances.

A single mother of two unable to return to her job as an airline pilot is better served, not by a single lump sum of cash, but by crafting a settlement plan which pays anticipated income she likely would have earned over her career had she not been injured.

Lump sums can be squandered.

Lump sums can be mismanaged.

But replicating income puts the injured party on solid financial footing serving her family better. Especially when the future income is tax-free (physical injury cases) and guaranteed by some of the most secure companies in the world as is the case with structured settlements.

Further, such needs-based settlement evaluations serve several important purposes:

It allows the settling parties to address certain anticipated future needs more realistically than a lump sum ever could;

Matching future needs with future dollars permits negotiating parties to set aside that which they can agree upon allowing important dialog on non-economic matters to continue;

A lump sum is just a number whereas guaranteed income over time represents a paycheck, insurance premiums, rent or mortgage payments, etc.

We don’t live in a lump sum world so why try to meet future needs with a lump sum today? By personalizing the resolution with a structured settlement, a better outcome is achieved by all involved.

Study after study reveals how strongly people feel about guaranteed, annuitized income. Social security beneficiaries, pension recipients and annuity owners report very high levels of satisfaction with their guaranteed cash flows.

Don’t those whose lives have been turned upside down by an accident deserve the same chance at happiness?

Although you technically can have one without the other, resolving a special damages lawsuit without a structured settlement is far less desirable than linking the two together come time for settlement.

“Try, try, try to separate them

It’s an illusion

Try, try, try, and you will only come

To this conclusion”

Like the song says, they’re just right for each other.

“Love and Marriage” lyrics by Sammy Cahn and Jimmy Van Heusen

Structured Settlements: Taxable Damages

Sixth in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered.

Today’s Installment: Taxable Damages

May 21, 2019 – If you’re a regular follower of our educational content, you already know there are few subjects we’re more passionate about than structured settlements for claims and lawsuits involving taxable damages.

We’ve studied it, researched it, created analytical tools to help clients make more informed decisions about it, presented MCLE classes to attorneys about it, written articles for national and regional periodicals about it, and complained to Congress about it.

In short, if you need help on this topic, you’ve come to the right place.

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Structured Settlements: Policy Limits

 

Fifth in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered.

Today’s Installment: Policy Limits

May 17, 2019 – People and businesses buy liability insurance to protect against personal or corporate financial loss when lawsuits are brought against them.

Resolving lawsuits can be problematic enough under the best of circumstances. But when accidents are severe enough and/or the liability limits too low to adequately compensate the plaintiff for their loss, the challenge is magnified.

Structured settlements can play a vital role in those situations where the accepted value of the case exceeds the policy limits.

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Structured Settlements: Post-Verdict Negotiations

 

Fourth in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered.

Today’s Installment: Post-Verdict Negotiations

May 15, 2019 When personal injury lawsuits are adjudicated, it’s a safe bet that one side or the other will be displeased with the end result. Usually it’s just a matter of degrees of disappointment.

Once the jury renders its decision – whether a defense verdict, one of the “runaway” variety in favor of the plaintiff, or somewhere in between – litigation participants have few choices about what happens next regardless of which side of the v. they stand.

They can accept the verdict, appeal it, or seek to compromise the decision.

In all but a few rare instances, a structured settlement can be a powerful, if underused, tool at this phase. Yet surprisingly, many claims professionals and attorneys (plaintiff and defense) alike incorrectly assume that a structured settlement is not possible once a verdict is rendered.

While it is true that a final judgment with no appealable issues triggers constructive receipt and therefore cannot be structured, in most cases structured settlements are not only possible but quite useful following a trial.

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Structured Settlements: Catastrophic Injuries

 

Third in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered

Today’s Installment: Catastrophic Injuries

May 10, 2019 – While structured settlements are useful in resolving a wide variety of liability disputes, those involving catastrophic injuries are especially well-suited to this method of claims resolution.

When an accident leaves a person tragically impaired requiring health care and living assistance extending well into the future, there are several reasons a structured settlement should always be the first choice when negotiating and finalizing these lawsuits or claims.

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Structured Settlements: Fatalities

 

Second in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered

Today’s Installment: Fatalities

May 7, 2019 – “Death is a crisis that all families encounter, and it is recognized as the most stressful life event families face . . .”

The preceding quote was excerpted from Chapter 4, “Death, Dying, and Grief in Families” (Murray, Toth & Clinkenbeard, 2005), of Families & Change: Coping with Stressful Events and Transitions, a best-selling text of compilation scholarly research on a topic most of us would sooner avoid.

No death can be minimized, but the unexpected, sudden death of a loved one leaves families feeling especially violated as they struggle for comfort that is too slow in arriving and acceptance of a new reality they never asked for.

The ensuing grief takes a significant emotional toll on psyches and many families fracture to the point of permanent dysfunction as a result.

When survivors file insurance claims and wrongful death lawsuits due to negligence alleged to have caused a fatality, they experience a new set of stressors inherent in the litigation process which can prolong their suffering and worsen their already-fragile sense of being.

And that’s just the emotional toll.

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Car Accident Statistics

May 2, 2019 – Although Distracted Driving Awareness Month officially ended Tuesday, we feel no shame in reminding our clients that attentiveness behind the wheel and vigilance in carrying out driving responsibilities should never take a vacation.

Thus, our belated post on the topic.

If we had our way, however, the U.S. Department of Transportation would change it to Distracted Driving Awareness Century.

One of the best sites we’ve found to highlight our driving habits and the human cost that comes with our reliance on two-or-more-wheeled motorized transportation is (click the link):

100+ Car Accident Statistic for 2019

The site provides verifiable, irrefutable statistics reminding us of our duty to our fellow travelers and of the potential consequences when our attention spans lapse.

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Structured Settlements: Minors

 

First in a series of blog posts dedicated to helping clients decide when a structured settlement should be considered

Today’s Installment: Minors

May 1, 2019 – I once had a plaintiff attorney tell me he hated structured settlements “except for minors.”

“It’s the only way I can get a judge to grant my petitions,” he explained.

Judges had rejected some of his earlier petitions where there was no plan for the minor beyond a single lump sum payable at age 18 from a low interest-bearing blocked bank account.

He wasn’t wrong. While jurisdictions vary, generally courts prefer structured settlements to blocked accounts for a few reasons:

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The Illogic of Annuity Trashers

April 29, 2019 – Articles, commercials and opinions of those who trash annuities shouldn’t bother me as much they do.

But seeing the general public constantly bombarded with misleading information on the issue, I can’t help wondering how many people are swayed by them to their detriment.

And feeling angry about the disingenuous and self-serving prejudice.

People aren’t always conscious of it, but they often base their financial decisions on emotion rather than logic. Fearmongers who play to this behavioral science truism can sway the odds in their favor when it comes to issuing financial advice.

And the slant is very transparent when you take the time to logically dissect their rationale for advising against annuities.

For instance, allow me to pick apart some of the more obvious biases in “Why annuities are a bad idea for almost everyone” from the August 18 issue of MarketWatch (free subscription may be required):

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Finn Financial Group