Wednesday, March 5, 2014

Do "illegal" workers get Medicare Set Asides?

Let’s just assume for the sake of argument there are some people who work without proper immigration status.   Let’s assume some of those workers sustain injuries.  Can the employer in Missouri refuse to fund a Medicare Set Aside  based on an immigration defense?

Let’s call them the "Undocumented Working Person" (UWP).  The Associated Press last year decreed it is not apropos to use the phrase “illegal immigrants” because people are not illegal and only acts are illegal.   This is not surprising in a world of political correctness.  People who file claims can no longer be called claimants but "injured workers" if they are injured or not.  "Claimant" is too pejorative like someone is  "claiming" something. Don’t even  ask about old legal classifications of “idiots, imbeciles and morons.” 
Let’s take another wild assumption.  Our UWP is already collecting government benefits.  Somehow he is on social security and has a Medicare card because he used a false identity.   “This could never happen!” you object.  Just play along. 

There are 7.3 million American workers whose earnings were reported and did not match their claimed social security numbers.  There is apparently a term of art called an “earnings suspense file.”  Despite policies not to pay benefits to UWPs,   Medicare reports it has paid 29 million from 2009 to 2011 to more than 4000 UWPs who were able to make 279,056 drug claims.    Estimates are Medicare could save $67 million in over five years if the agency properly enforced the 1996 law to deny benefits for those UWP unlawfully present in the United States. 
Missouri provides access to worker’s compensation statutory benefits to employees regardless of immigration status.

Missouri, in fact, no longer requires an injured worker to disclose a  complete social security numbers.   It’s only half the fraud when using four fake numbers than nine, right?

In Missouri the legal issue is whether the “injured worker” is an employee and not a “legal” undocumented working person.   The Missouri Commission addressed this issue and stated the claimant must only show proof of employment under 287.020 and there was no need to prove “legal” employment.  Vega-Rivera v Hyatt Corporation, 2011 Mo WCLR Lexis 149. In the case claimant did not admit she was an “illegal alien” but admitted she crossed the border illegally and was "sorting out"  her status. 
Chapter 287 requires an employer to provide medical care, including future medical in some cases, to people injured at work.  The word “illegal” is not used in the section, so under strict construction the legislature clearly intended to extend benefits to everyone.   This is Missouri, after all, where the state makes it unequivocal that English is the official language and the House makes it clear that no law, even comp law, is going to be governed by Sharia.   If the House intended to put their finger on the dike in comp they certainly know what finger to use.

The answer to MSA obligations is no where in Chapter 287.  The chapter doesn't even define MMI and isn't about to touch MSA.

Medicare’s interests must be considered and the likelihood that some injured workers will be on the Medicare boat if they are not already.   Immigration enforcement is for people at much higher pay grades, like the ones in D.C.  writing checks to dead people.  The employer may not think that is fair, but the word fair is not in chapter 287 either.  One cannot assume a fair result under strict construction when the word fair is not used in the statute. 

The Missouri employer can always leave medical open and designate providers.  As a practical matter if the UWP has the minimalist of contacts in Missouri he may disappear again and it may be an award which is never enforced.   While some employee may disappear, Medicare is the gorilla in the room like an unemployed houseguest that isn’t going anywhere.   
Several risks need to be considered:

Risk #1:  The parties did not consider Medicare’s interests to fund claims of UWPs who may not be entitled to receive benefits under federal law. 
Risk #2:  Medicare in its infinite wisdom will continue to pay people who are not entitled to benefits.

Risk #3:  Medicare will seek reimbursement for conditional payments it should never pay in the first place.
Funding a Medicare Set Aside is one mechanism to shut down future medical.  This is an attractive solution to the open-ended medical award or lump sum settlement for Missouri employers even if the employer is asking Medicare with a wink and a nod to approve a deal with a UWP who may not be entitled to benefits in the first place to close down its statutory liability for future medical.   

Careful drafting might suspend  future obligations if the injured worker becomes disqualified from Medicare benefits, incarcerated, deported, or drag races while intoxicated in Miami while singing "Baby." A settlement agreement to advance future Medicare obligations may also become a classic buyer’s regret for the employer if the UWP is thrown off the Medicare rolls the moment it is approved.    There is no immigration discount to calculate the MSA, such as using a coded age like someone with some horrible terminal illness.   An entitlement to MSA is an entitlement for life.   There is no assumption that after 5 years or 10 years someone at INS, DHS, CMS, or NSA might take someone off the rolls which doesn’t belong.  The employer’s obligations to pay UWP is based on life expectancy, because there is the presumption the government will remain inefficient to enforce its immigration laws and tighten eligibility for government benefits for the reasonable life expectancy of any claimant.   The immigration issue is not a defense in medical liability in Missouri comp.  That, in the classic government excuse, is someone else’s job.
The employer who has lax policies hiring undocumented workers may have a very high price to pay at the end because someone in the government benefits department has been lax about doing their job too.   

Sources for statistical information

Dinan, Medicare paid millions to dead patients, illegal immigrants, probe finds, Washington Times  (Oct. 31, 2013).
Harper, Associated Press Bans the phrase ‘illegal immigrant, Washington Times (April 2, 2013)

Pear, Crackdown Proposed to Prevent Illegal Immigrants from Obtaining Medicare, New York Times (March 3 2014)
Solane, Illegal Immigrants Give Billions to Medicare, Social Security with no hope of benefit, Medicare News Group (Jan 7, 2013).