Individuals who have been diagnosed with asbestos-related diseases face overwhelming medical and financial challenges. They often pursue legal avenues to obtain monetary compensation for pain, suffering, and medical fees incurred for their treatment.

Once the legal remedies result in a settlement, judgement, and/or award, plaintiffs, claimants, and defense are responsible for notifying the Center for Medicare and Medicaid Services (CMS). Each entity’s obligation to report is at a different phase during the legal procedure, and there are federal regulations that ensure CMS is reimbursed for paid treatment related to the settlement, judgement, and/or award.

As the asbestos litigation landscape continues to evolve, managing the CMS compliance process can be a daunting task. However, for many organizations, the Asbestos Malignancy Program (AMP) stands as a reliable and trusted partner, helping parties stay ahead of the curve and maintain their compliance with CMS requirements.

Additionally, because the asbestos-malignancy and non-malignant compliance process provides a known maximum reimbursement obligation amount, this helps Medicare recipients and/or their heirs make the difficult decision regarding whether to participate in the settlement, judgement, and/or award.

Program background

In 2015, CMS provided the terms of a new process for Level IV Severe Asbestosis and Malignancy asbestos exposure cases. That’s where AMP, developed with CMS, comes into play. This comprehensive solution offers a streamlined approach to settling asbestos injury cases, with a maximum reimbursement obligation amount, while ensuring full compliance with CMS requirements, delivering significant benefits for attorneys and their clients on both sides of the aisle.

In 2016, CMS provided a tiering calculation that considers the date of diagnosis or date of entitlement through the date of funding or death. Based on the previous criteria, the timeframe that Medicare Part A and/or Part B would have been the primary payer is calculated. The calculation may reduce the claimant’s maximum obligation amount.

Benefits of AMP and non-malignant

1. Known maximum reimbursement obligation.
   The maximum amount an individual must reimburse CMS is capped at $36,771.84. However, the tiering max obligation could be as low as $2,896.19.
   
   By working with AMP to make sure CMS is appropriately reimbursed, penalties for non-compliance can be avoided. Otherwise, CMS can impose civil money penalties (CMPs) of up to 15% of a Medicare recipient’s monthly check until the agency has been reimbursed. Defense attorneys can be fined up to $1,428 per day if a claim is over three years late, and plaintiffs’ attorneys are subject to direct action by Medicare.
2. CMS will not assert a right of recovery greater than 29.5% of the gross settlement value.
   For example, if an individual receives a $10,000 settlement, CMS will take the lesser of their maximum reimburse obligation or 29.5%, ($2,950). However, if CMS’s obligation were to be resolved through the traditional fee-for-service recovery method, the firm is required to get the final demand and then request an equitable compromise. Currently, CMS is assigning an equitable recovery amount of 38% of the gross settlement value. This would result in a reimbursement of $3,800, which would cost the claimant $850 additionally and, on average, an additional six months.
3. Faster disbursement of funds.
   AMP allows for immediate disbursement of funds. Once a claimant is enrolled into AMP, the firm must retain 29.5% and the remaining can be disbursed. If a claimant is paid in full, no other calculation is required and funds can be disbursed.
4. Exceeding CMS’s compliance.
   AMP addresses Medicare Secondary Payer requirements and SCHIP Extension Act (MMSEA) Section 111 for plaintiff and defense. The process considers past and future medicals, and also initiates the three-year statute of limitations upon plaintiffs’ attorney reporting a settlement. CMS extends Section 111 reporting and then releases Section 111 reporting obligations for participating beneficiaries.
5. Accurate and all-inclusive documentation retention.
   The program also provides accurate and comprehensive document retention, which can be crucial in the event of compliance issues with Medicare coverage. If a complication arises, Epiq assists in the resolution for the claimants and their families. For example, if a claimant is being denied coverage or appointment setting for a Medicare beneficiary, Epiq assists with training individual providers regarding the recovery process for CMS.
6. Team of experts.
   Understanding government regulations can be complex, thereby rendering compliance challenging. Our team members at Epiq have more than 50 years of combined experience, and are known for their “get-it-done” mentality. They are passionate about their work and each person brings a unique set of skills and experience to the table. From attorneys and medical staff to project managers, their expertise ensures all parties are compliant with every aspect of lien resolution.

Enrolling in AMP can alleviate stress for all parties related to reimbursing CMS, help participants keep more of the money they deserve, and save law firms time and money.

Debra Forsythe is a senior director, business execution at Epiq, providing expert consultative guidance to plaintiff and defense counsel for their clients' mass tort, class action and/or single-event settlements. She champions program requirements to ensure all parties are compliant, while keeping the injured parties’ rights the top priority.