A Former Regulator’s Thoughts on Timely Topics

Timely Topics In February of this year, I joined the Ametros family as a Senior Managing Director. I came to this position after having been the Chief Workers’ Compensation Regulator in the state of Maine for eight years. Prior to that, I was a trial lawyer with extensive workers’ compensation experience. For 30 years, I represented injured workers, businesses and insurance carriers in workers’ compensation cases. Since joining Ametros, I've observed many recent issues and changes in the workers' compensation and liability space. During my time as a regulator, I saw a lot of issues with Medicare Set Asides (MSAs) going south after settlement. Even now, we are seeing post-settlement denials from the Centers for Medicare and Medicaid Services (CMS). After seeing some of these issues, I set out to start a column to share my thoughts, opinions, and musings on directives, best practices, and hot topics in the industry. Thus, Timely Topics was born. In this first issue, I decided to cover a bit about my background and perspective. Background Since I joined Ametros, I've had a number of inquiries from members of the bar, parties I represented, members of the business and insurance communities, regulators, and legislators. Most of the inquiries focused on two topics:

1. Did you think about retirement?
2. And why Ametros?

The answer to the first question was I did think about it and summarily rejected the idea. The answer to the second requires a little history. As an attorney in private practice I can remember when I first heard about the importance of MSAs in workers’ compensation settlements. An article circulated within our department in 2001 about the Patel memoranda. We were generally familiar with the Medicare Secondary Payer (MSP) obligations but it was not until the Patel memo did members of the bar become sensitized to the obligations. MSAs became a regular feature in appropriate settlements. Carrier and employer clients hired MSA professionals who evaluated our cases and put together proposals for submission to CMS. This process was educational, frequently time-consuming, and generally seen as necessary to protect all involved. When representing injured workers, I did my best to share details on their MSA and what having one would require once they settled their case. In Maine, like many other jurisdictions, cases can only be settled after a hearing before one of our Administrative Law Judges and finding an agreement that is in the parties’ best interest with special consideration given to the interest of the injured worker.  After a settlement was approved, we would meet and in the case of an MSA, we would discuss the reporting obligations. None of our clients ever had their MSA professionally managed, all were self-managed. Part of our discussion involved telling our client I prepared a letter to CMS for their signature requesting a copy of the publication Medicare & You. I would explain in the back of the publication that there are forms to be used in reporting on their MSA. My hope was the client would be able to manage the MSA appropriately and comply with all of the reporting obligations. I left my law firm on February 28, 2011. In February 2011, Maine Governor Paul LePage appointed me to be the Executive Director and Chair of the Maine Workers Compensation Board. In this position I was responsible for the day-to-day operations of the agency. Included in those responsibilities was the supervision of the Administrative Law Judges. Although MSAs were still part of our settlement process, I devoted little attention to them until several things started to happen. The first being the Board started receiving phone calls from individuals who were attempting to self-administer their MSA. The calls generally concerned the inability to get a medical provider to accept payment consistent with our discounted medical fee schedule. The provider, be it a hospital, a physician, or other health care professional, wanted to be paid the full invoice charge. The caller generally wanted the Board to provide advice, guidance, direction or better yet, direct involvement. The callers were told that the Board no longer had jurisdiction over the claim; we could not get involved beyond making recommendations on who the caller should contact. Secondly, in March of 2015 at a meeting of the College of Workers’ Compensation Lawyers, I met Marques Torbert, Ametros’ CEO. I was at the meeting as a fellow of the College and Marques was there educating the membership. I learned that Ametros professionally manages MSAs. I was frankly delighted and surprised to hear there was a company solving this problem, one that had recently re-emerged on my regulatory radar. The more regulatory inquiries we had, the more convinced I became the average injured worker did not have the ability to negotiate with medical providers, including pharmacies for prices compatible with state fee schedules. In addition, I was concerned CMS filing requirements were also a problem for many injured workers who settled cases and decided they were going to self-administer. Since that initial meeting, I spoke with Marques on a number of occasions, seeking his input on MSA issues that were brought to my attention. This evolved into presentations we gave at two large workers compensation meetings. I also met the company President, Porter Leslie, and appeared on an educational panel with him. After I resigned my regulatory position, Marques and I discussed how I might add to Ametros’ extensive expertise. Having someone on staff who has mediated, tried, managed and settled cases, who co-wrote a workers’ compensation book and who has been a regulator, would broaden the company’s experience base. From my perspective I was both honored and pleased to be talking with the company. Joining a company that is solving a problem that has existed for some time and from my perspective is doing so in a fashion that protects all involved seemed like a great fit. I have now been with the company a few months. I have learned a good deal from Ametros personnel and others in the industry. I appreciate the fact that I still have much to learn and know there are knowledgeable people in this industry who are willing to share their expertise. The title of these writings will, going forward, be morphed into Timely Topics. My hope is to write on MSA issues that catch my attention as a former trial attorney who became a regulator. Some will be simple musings on MSA related directives, others might contain opinions on what might be a state agency best practice to ensure injured workers and their employers are protected when settling claims with an MSA. Do you have any topics you're interested in hearing about? Let us know!