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

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.

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

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.

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. 

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 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. 

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. 

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 . . . .

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.

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. 

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. 

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.

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

MSPRC not hitting its contracting benchmarks. 

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

Medicare will not pay for certain treatment related to medical malpractice

MMSEA Reporting deadline pushed back again. 

Defendants increasingly want to put Medicare on the check.