In a case of first impression, a United States District Court in the Western District of Louisiana apportions a LMSA and reduces it due to a limited recovery.

In WOS v. EMA, the first case to reach the US Supreme Court after Ahlborn, the highest Court in the land again examined a state statute requiring up to one-third of any damages recovered by an injury victim to be paid to the state to reimburse it for payments made by Medicaid for injury related treatment.

In Sterrett, a Connecticut state court decided that future medicals had not been funded and as such no MSA was needed.

In Welch, a Federal District Court is asked to determine the need for an MSA and the amount of the set aside. 

Early v. Carnival Corporation is another case where it appears the parties can’t decide on the appropriateness of a liability Medicare set aside but in a new twist, they ask the court to decide the issue for them in a “conditional” settlement.  The Court in its opinion cited my article regarding “Medicare Myths”.  It ultimately held that there was no settlement since the Court can insert a missing term and couldn’t issue an advisory opinion on MSAs.

In a highly anticipated case that many thought had a chance to be heard by the US Supreme Court, Hadden v. US was denied certiorari on 10/1/12.  This leaves standing the 6^th Circuit’s ruling that Medicare may seek full reimbursement even when Mr. Hadden only recovered 1/10^th of his total damages.

With case law piling up all over the country with differing results post Ahlborn, the US Supreme Court granted the North Carolina Attorney General’s Petition for Writ of Certiorari from a 4^th Circuit decision regarding the application of the Ahlborn decision to NC state law. 

The SMART Act is a piece of legislation designed to make the Medicare Secondary Payer Act more user friendly.  It addresses current issues with the conditional payment recovery process.  The legislation has been sitting in the House Energy & Commerce Health Subcommittee for quite some time.  On 9/11/12, it passed the committee with markup that has changed some of the key provisions.

On May 3 of 2012, the Office of Management and Budget received advanced notice of proposed rulemaking (ANPRM) entitled “Medicare Secondary Payer and ‘Future Medicals’ (CMS-6047-ANPRM)” from CMS. On June 14^th, the contents of the proposal were released by CMS.  A sixty day comment period began on 6/14 which expires tomorrow on 8/14.

In Sipler, a NJ Federal District Court Ruled that an MSA was not necessary in a liability settlement.  However, the ruling was in the context of a motion to enforce settlement over a dispute about release language.  An MSA is never required, however if one isn’t done the injury victim might have no Medicare coverage in the future for injury related care.  This decision does not change anything in that regard.

On June 6^th, I participated in a meeting with CMS officials regarding MSP related issues in Washington, DC.  I also spent some time lobbying a couple of members of the House on behalf of the SMART Act. 

The agency charged with administering the Medicare system, CMS has filed a proposed rule with the Office of Management and Budget entitled “Medicare Secondary Payer and ‘Future Medicals’ (CMS-6047-ANPRM)”.

On April 12th, the Florida Supreme Court ruled on the proposed amendment to rule 4-1.5 and rejected it.  What does this mean for lien resolution outsourcing?  Read more about it in the post. 

Wife awarded 17.5% of funds set aside in a WCMSA as part of a marital dissolution upheld by Illinois appellate court.

Hadden is a case of extreme importance in the field of Medicare conditional payment resolution.  Medicare currently does not take into account factors that lead to reduced recovery when resolving conditional payments.  Hadden attempted this approach but lost at the Federal District court level and the 6^th Circuit Court of Appeals.  A Petition for Writ of Certiorari to the US Supreme Court was filed last week.

In Frank, the United States District Court for the Western District of Louisiana addressed a motion for “Determination of Need for, and Amount of Medicare Set Aside for the purpose of complying with the Medicare Secondary Payer Statute.”  The decision is most noteworthy because CMS refused to show up for the hearing after being on notice indicating they do not determine whether future medicals are funded or the amount of any set aside.  The Louisiana Federal District Court determined the amount of the set aside and cited Bradley suggesting that CMS was not entitled to “Chevron deference” regarding its field manual which only respects allocations by a court if on the merits of the case.  The Frank court discussed the Bradley court’s holding that the field manual was not law thus, implicitly; the agency must abide by the court’s allocation.

The MSPRC announced today a new option for resolving Medicare conditonal payment obligations for settlements $25,000 or below.  The new option allows for self calculation of the amount and submission to the MSPRC for review then ultimately issuance of a final demand (assuming MSPRC agrees with the figure). 

In Hadden v. US, the 6^th Circuit rejected an argument for equitable distribution of a Medicare conditional payment obligation similar to Ahlborn.

With all of the changes on the liability Medicare set aside front, this blog post will summarize all of the relevant issues present in today's settlement landscape. 

Smith involves the approval of a Medicare set aside in a Longshore/Jones Act matter.  It is another in the line of orders that seemingly presume that MSAs are required in settlements pursuant to the MSP.  It is an important decision because it provides a path to total MSP compliance when CMS has refused to review a proposed MSA.

For settlements of $5,000 or less there is now an option to pay 25% of the settlement proceeds to Medicare to resolve the conditional payments regardless of the amount of the payments made by Medicare.

On 10/17/11, Senators Wyden (OR) and Portman (OH) introduced the SMART Act.

On 9/29/11, CMS issued a memorandum indicating there is no need for a liability Medicare set aside and that its interests would be satisfied if the treating physician certifies in writing that treatment for the alleged injury related to the liability insurance has been completed as of the date of settlement.

CMS issued an alert on 9/29/11 regarding the implementation of the Section 111 mandatory Medicare insurer reporting requirements.

Is the MSP recovery contractor going to change?

The AAJ sent out an announcement today to members about forthcoming guidance from CMS regarding MSP issues.

The MSPRC issues a new alert indicating a $300 low dollar threshold for condtional payment recovery. 

A United States District Court in Louisiana cites the Sally Stalcup Region 6 Liability Medicare Set Aside Memo as authority in its order.  This case is a shining example of the massive confusion over Medicare secondary payer compliance issues (conditional payments and MSAs).

On June 27^th, Medicare formally resumed issuing demand letters after it halted issuance in response apparently to the Haro v. Sebelius decision.  I will summarize what is new in the demand letter.

While there is no apparent legislative fix to the Medicare Set Aside conundrum, there are legislative efforts underway with regard to conditional payments with the SMART Act (H.R. 1063).  As a follow up to the recent House committee meeting with CMS, the Committee Chairman, Fred Upton from Michigan, sent a letter to Kathleen Sebelius, Secretary of Health and Human Services and Dr. Donald Berwick, CMS’s administrator requesting CMS’s insight regarding several key issues.

In Wilson v. State Farm Mutual, a Kentucky federal district court found there was no bad faith where the insurer refused to pay a settlement until Medicare made a determination on the amount of the repayment obligation for conditional payments.

CMS Region 6 issued a memorandum on liability Medicare set asides (“LMSA”) which has some useful information but has limited application outside of Texas, Oklahoma, New Mexico, Louisiana and Arkansas.

The House Energy and Commerce Committee met on 6/22 in response to the SMART Act (reform of the MSP).  The purpose of the meeting was to take testimony and to discuss the problems with Medicare’s collection practices in group health plan & Non-group heal plan situations.

The MSPRC’s new RAR letters offers little change, but definitely was altered due to the Haro case in AZ.

In Hinsinger, a New Jersey trial court found that a Medicare Set Aside established in a liability case should be reduced by procurement costs with plaintiff counsel being allowed to get his fees based upon the method set out in 42 CFR 411.37. 

The MSPRC announced resumption of RAR letters as of 6/10, but not demand letters. 

In Southwest Fiduciary v. Willingham, an Indiana court of appeals ruled that the state’s Medicaid lien on the settlement proceeds must be based upon the actual payments made by Medicaid and not the total amount billed by the healthcare provider. 

In Donna Black v. John/Jane Doe Employee Et Al, a Kentucky United States Federal District Court dismisses all of the causes of action against Medicare because of ripeness issues.

The MSPRC has temporarily suspended issuance of Rights and Responsibilities letters as well as demand letters.  The MSPRC is still working on resolving conditional payments, this is just a hold on issuing the RAR and demand letters.

Assistant U.S. Attorney Robert Trusiak of the Western District of New York develops protocols for Liability Medicare Set Asides.  This unprecedented action is perhaps the first in a line of similar actions in the face of inaction by CMS regarding Liability Medicare Set Asides.  Unfortunately, these protocols do little to clear up the mess that is the current settlement landscape for liability cases involving Medicare beneficiaries. 

In sure to be highly litigated issue, Medicare has been enjoined by a United States District Court in Arizona from certain enforcement practices under the MSP.

The United States District Court in the Western District of Michigan holds MSP cause of action to determine conditional payment amounts is premature because there was not settlement, judgment or award.

The Florida Bar, in response to a personal injury lawyer’s request, issues Staff Opinion 30310 finding it unethical for defense counsel to request plaintiff counsel sign a release which includes indemnification/hold harmless language regarding the Medicare Secondary Payer Act.

The First District Court of Appeal in United Airlines v. Nemoto held that an agreement to settlement was enforceable despite an apparent contingency regarding a Medicare Set Aside which had not been fulfilled.

An Arizona Federal District court finds PacifiCare of Arizona, a Medicare Advantage plan (Part C), does not have a private cause of action to recover payments it made on behalf of an injury victim like Medicare.

The Benson v. Sebelius decision reaches a result opposite to Bradley because medical expenses were claimed in the wrongful death action on behalf of the survivors instead of the estate. 

In Alcorn, a federal district court refused the plaintiff’s attempt to bring in CMS to determine the amount of a potential conditional payment obligation prior to a settlement, judgment or award.

The ABA house of delegates, during its 2011 mid-year meeting, adopted a resolution regarding Medicare Set Asides and reform of the Medicare Secondary Payer Act.  It is the same old thing though, nothing new.

Upcoming seminar on Medicare Secondary Payer compliance and I will be presenting.

When a Medicare Set Aside is implemented, there are different options as far as how they are administered.  The injury victim can self administer the set aside.  In the alternative, a professional administrator can be hired.  This may be through a custodial arrangement or a trust. 

Medicare’s administrative procedures regarding conditional payments must be exhausted before bringing suit against Medicare.  A federal district court lacks subject matter jurisdiction to determine conditional payments prior to judgment, settlement or award AND a final decision is obtained from the Secretary. 

Defendant’s may try to use liability set aside allocations to limit the injury victim’s damages. 

HR 1063 was introduced in the 112^th Congress by Representative Tim Murphy (R-PA) and Representative Ron Kind (D-WI) on March 14^th, 2011.  The bill is titled the Strengthening Medicare and Repaying Taxpayers Act of 2011 (SMART Act) and it is an attempt to streamline the Medicare conditional payment resolution process. 

An Arizona Court of Appeals held that Ahlborn is applicable to reduce Arizona Medicaid’s recovery of a lien against a 3^rd party tort recovery.

A complete absence of an MSA allocation amount precludes the enforcement of an alleged agreement to settle according to Hudson v. Cave Hill Cemetery.

In the absence of an agreement as to who pays if an MSAT comes back substantially higher, you can’t have an enforceable settlement according to the ArvinMeritor v. Johnson decision.  Neither party can be forced to pay more than it agreed to.

A federal district court dismisses a 3^rd party complaint against the Department of Health & Human Services because it wasn’t ripe since the personal injury action giving rise to potential Medicare conditional payments was still being litigated. 

A federal district court in Virginia rules that Medicare regulations do not pre-empt a state law motion to enforce a settlement.  The defendant refused to pay a settlement claiming CMS had not sent written confirmation of the amount it was entitled to for conditional payments made on behalf of the plaintiff. 

A class action has been certified as it relates to application of Ahlborn to Missouri Medicaid liens.

Ohio addresses the issue of indemnification, by a plaintiff attorney, of a third party’s interests in settlement proceeds

A Federal Judge in the Southern District of Florida dismissed Humana’s cause of action for reimbursement pursuant to 42 USC 1395y(b)(2) finding only the US Government could bring such an action.

A Florida Circuit Court Follows Ahlbornand significantly reduces Medicaid Lien

Favorable decision for the plaintiff brought under 1983 seeking an Ahlborn reduction.

This is a summary of the steps to be taken for Medicare conditional payment resolution and also addresses the question of the applicable SOL for Medicare conditional payments. 

The Benoit case is important because it judicially acknowledges an obligation to set aside monies for Medicare future expenses in a non-Workers’ Compensation case. 

The Forkey decision reaches the opposite result from Bradley in terms of the priority of competing claims between a death beneficiary and Medicare. 

Due to mandatory insurer reporting of settlements with Medicare beneficiaries pursuant to Section 111 of the MMSEA, many insurers are inserting indemnification clauses into settlement agreement and releases.  This NYC Bar opinion addresses whether it is permissible for defense counsel to request plaintiff counsel to sign off on a release with an indemnification clause.

NJ WC Chief Judge's memo highlights problematic language being requested by defendants regarding Medicare condtional payments. 

PA court holds MSPA does not require Medicare on the check.

US v. Stricker is not done despite the dismissal issued previously.  Read on . . .

Where does "consider Medicare's futuer interest" come from and what does it mean?  Read on if you want to know . . . .

This is part 1 of a series on ethical issues at settlement that every personal injury lawyer should be familiar with. 

CMS has once again pushed back the start of reporting of settlements with Medicare beneficiaries by insurers.  It was set to start on 1/1/11.  It has now been pushed back to 1/1/12. 

How do you deal with a liability Medicare set aside allocation that exceeds the client’s net settlement proceeds?  One approach would be to use an Ahlborn type of formula to reduce the set aside amount.  Since there is no guidance on that particular subject, I would argue for the use of such a formula.

PCIP stands for “Pre-Existing Condition Insurance Plan” and is health care coverage that everyone lawfully in the United States has access to if they have a pre-existing condition that they were denied care for by an insurer or have been uninsured for 6 months.

House Rep. Pete Stark asks GAO to investigate MSP related issues.

In U.S. v. Stricker, the government’s claims against personal injury attorneys, corporations and insurers which settled a mass tort suit without resolving Medicare conditional payments were held to be time barred because they were not filed within the, arguably, applicable six year statute of limitations.

In Bradley v. Sebelius, the 11^th Circuit Court of Appeals approved a probate court’s equitable distribution findings to reduce a Medicare conditional payment obligation. 

In Hadden v. US, a federal district court rejected argument for equitable distribution of a Medicare conditional payment obligation similar to Ahlborn. 

The MSPEA is designed to streamline and fix problems with the Medicare conditional payment system. This post provides an update of the status of the bill.

In Finke, a federal district court held that a liability Medicare set aside was not necessary where the client was covered by a group health plan that was primary.

While Mandatory Insurer Reporting under Section 111 of the Medicare, Medicaid & SCHIP Extension Act until 1/1/2011, reporting must be done retroactively to 10/1/2010. 

In a sure to be cited case, a Federal Judge in the Eastern District of Pennsylvania follows the Ahlborn decision and cuts a Medicaid lien by more than 50%.

In Spencer v. Hartford, the Hartford was sued for alleged fraudlent practices related to structured settlements offerred to injury victims as part of settlements.  The case is landmark and illustrates the need for a personal injury victim to have a plaintiff based settlement planner assisting them with all phases of settlement. 

I was recently asked what an personal injury attorney's obligations are when it comes to advising about structured settlements.  This post, in a cursory fashion, addresses some of the important issues to consider and is based on my response back to the attorney.  

There is much confusion these days by liability insurers and defense counsel regarding when an MSA is necessary.  I thought it might make sense to discuss when they are definitely not necessary.

In Hackley, a CT court followed Seger and compeled the plaintiff to provide his Social Security number which was requested as a term of settlement.  However, there was no settlement since the parties didn't agree to that as a term of settlement. 

In Seger, a federal district court ordered the plaintiff to comply with a MMSEA based discovery request. 

The Adrian v. Mesirow case holds an important lesson for trial lawyers. 

This is a summary of the Florida post-Ahlborn case law.

CMS is routinely NOT reviewing proposed Liability Medicare Set Asides

The Price decision illustrates the need to present evidence, at a hearing, regarding the total value of an injury claim for purposes of an Ahlborn reduction. 

Armstrong v. Cansler affirms the Andrews v. Haygood decision that NC's Medicaid lien statute does not violate the US Supreme Court's holding in Ahlborn. 

The Florida Bar committee looking at lien resolution outsourcing has a new proposed rule to govern fees.  It allows a lawyer to outsource if that is disclosed in the initial fee contract and the fees must be reasonable. 

Personal physical injury damages are not taxable under 104(a)(2) of the IRC.

Plaintiff attempted to use Ahlborn to argue for an allocation hearing before the trial court. 

CMS has set up a query system for defendants to use to verify Medicare eligibility.

Planning for those that are dual eligible is critical.

Medicaid programs available to those that are dual eligible. 

Some injury victims are eligible for both Medicaid and Medicare.  These clients need special settlement planning.  This is part one of three in a series on dual eligibles.

HR 2641 addresses some of the problems with Workers' Compensation Medicare Set Asides (WCMSA) but it fails to address Liability Medicare Set Asides (LMSA). 

Qualified Settlement Funds are a great tool for settling complicated cases. 

MSPRC not hitting its contracting benchmarks. 

Haro v. Sebelius - Challenge to MSP Collection Practices

Some public benefits are needs based and some are not.  Knowing the difference is critical.

CMS Alert About Collection of Medicare Numbers, Social Security Numbers and EINs

Expansion of Medicaid

Florida has a statutory reduction formula for Medicaid liens.

Medicare will not pay for certain treatment related to medical malpractice

Scharba v. Braden, an important Florida Ahlborn decision. 

MMSEA TownHall Conference Call Addresses LMSAs

Medicare Secondary Payer Enhancement Act of 2010

The US filed a motion for partial summary judgment in Stricker on 1/28/2010.

The import of USA v. Stricker

MMSEA Reporting deadline pushed back again. 

Defendants increasingly want to put Medicare on the check.