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By DAN REYNOLDS, senior editor of Risk & InsuranceŽ

CHICAGO---As an attorney, Jim Pocius is usually accustomed to people running away from him, not to him, so he was somewhat taken aback by the pent-up demand for information being vented after his session on Medicare set-aside reporting ended at the Annual National Workers' Compensation and Disability ConferenceŽ & Expo.

Pocius, chairman of the Medicare Practice Group at Scranton-based Marshall, Dennehey, Warner, Coleman & Goggin, said things have only gotten more complicated since the 2007 passage of the Medicare, Medicaid and SCHIP Extension Act.

Any time a workers' comp claim is filed, the act places on the insured the burden of researching and reporting to Medicare whether an individual is Medicare-eligible, with the goal that Medicare be protected from exposure as the primary payer in a case where the insured might share the burden.

But any claim from a person who is eligible for Social Security Disability payments, not just folks 65 or older, is triggered under the act. And that's where it gets tricky.

"I just had a case where somebody was 19 you know, and that is an extreme case, but you can get Social Security Disability at a young age. The problem then becomes, since you are supposed to report these eligible people, how do you know?" said Pocius.

Yes indeed, how do you know? You may have a worker who initiates a workers' comp claim in 2005, for example, and has applied for Social Security Disability benefits but doesn't get approved for them until 2007. They might not be so kind as to have told you that they got approval, which leaves the insured or the insurer on the hook for a fine of $1,000 per person, per day, for anyone who was Medicare-eligible that they didn't report.

So far, Medicare isn't enforcing the fine, but that doesn't mean they won't in the future.

THE ANXIETY

Overall, the atmosphere is not pretty for those who have to track eligibility, and that was reflected in the anxiety in Pocius' audience and the number of questions with which he was peppered.

"No. 1, from the workers' compensation standpoint, there is still some lack of knowledge or misinformation circulating in the workers' compensation community about when you need set asides and when you don't need set asides," said Pocius.

It's true, grown men were coming up to Pocius with the sheepishness of teenagers looking for a boost on their allowance.

"So we generally get questions along those lines, and that reflects that misinformation. I'm trying, one audience at a time, to correct the misinformation. So that is the first area of confusion and the second area of confusion is this SCHIP reporting law," Pocius said.

"So the burden for the carriers and the self-insureds is to continually check all the way through the length of the case, at their expense, to find out if somebody's qualified. With no federal mandate or penalty on the person if they won't give the information," said Pocius.

Needless to say, insureds and carries are on edge and need to know more. Thus, the line of questioners that was the longest this observer had ever seen at the end of an insurance conference presentation.

"What it shows me is that there aren't enough sources of good information," Pocius said.

(Click here to read all of our other coverage from the Annual National Workers' Compensation and Disability ConferenceŽ & Expo.)

November 19, 2009

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