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Congress Reverses Ahlborn & Wos - Medicaid Liens Now Superliens

Jan
3

Unfortunately, as part of the budget signed by President Obama on the 26th of December (Merry Xmas), a legislative fix for Ahlborn & Wos was made law. 


Protecting Supplemental Security Income and Medicaid Eligibility for Injury Victims: Special Needs Trusts

Jul
12

The receipt of personal injury proceeds by someone who is disabled can cause ineligibility for means based tested government benefit programs.  Medicaid and SSI are two such programs.  However, there are planning devices that can be utilized to preserve eligibility for those who have become disabled due to injury.  Learn more in this post.

 


Part 7 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
19

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance.


Part 6 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
17

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance.


Part 5 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
14

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance. 


Part 4 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
13

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance. 


Part 3 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
9

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance.  


Part 2 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
6

Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance.   


Part 1 - Debunking the MSA Mystery: Clues to Solving Medicare Secondary Payer Compliance in Liability Settlements

Jun
5
Liability MSAs issue and MSP compliance can be difficult to navigate.  In this multi-part blog post, these issues are examined in detail to give trial lawyers better guidance.

Benoit v. Neustrom: United States District Court Applies a Reduction Methodology to Liability Medicare Set Aside

Apr
24

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.


WOS v. EMA – US Supreme Court Affirms Ahlborn Striking a Blow to State Medicaid Agency Third Party Recovery Efforts

Mar
20

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.


Sterrett v. Klebart: CT Court Decides Future Medicals Not Funded So No MSA

Mar
11

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


Welch v. American Home Assurance: Federal Court Finds LMSA Necessary and Determines Amount

Mar
6

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 - Florida District Court Refuses to Issue Advisory Opinion on Liability Medicare Set Aside Necessity

Feb
18

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.


Hadden v. US a No-Go: SCOTUS Denies Cert

Oct
10

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 6th Circuit’s ruling that Medicare may seek full reimbursement even when Mr. Hadden only recovered 1/10th of his total damages.


E.M.A. ex rel. Plyler v. Cansler: SCOTUS Grants Cert. on 1st Post Ahlborn Decision

Oct
10

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 4th Circuit decision regarding the application of the Ahlborn decision to NC state law. 


The SMART Act Passes Energy and Commerce Health Subcommittee on 9-11

Sep
17

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.


Liability Medicare Set Aside Rules - Commentary

Aug
13

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 14th, the contents of the proposal were released by CMS.  A sixty day comment period began on 6/14 which expires tomorrow on 8/14.


Sipler v. Trans Am Trucking, Inc: Federal District Court Rules No MSA But Not So Fast . . .

Aug
6

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.


Liability Set Aside & SMART Act Update

Jun
12

On June 6th, 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. 


Are Regulations Regarding Medicare Set Asides Coming from CMS? 0938-AR43 May Indicate So

May
11

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)”.


Lien Resolution Outsourcing - The Florida Supreme Court's Ruling on 4-1.5 amendments

Apr
17

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. 


GAO Report Issued in Response to Rep. Stark’s MSP NGHP Process Inquiry

Apr
9

In August of 2010, Pete Stark Chairman of the Subcommittee on Health for the House Ways and Means Committee sent a letter to the GAO requesting an examination of “issues surrounding Medicare Secondary Payer rules as they apply to Non-Group Health Plans.  In March of 2012, the GAO issued a 47 page report in response to the inquiry.


In re MARRIAGE OF CHRISTOPHER WASHKOWIAK – Is an MSA a marital asset subject to division? Apparently yes in Illinois

Apr
2

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


Hadden v. US: Petition for Cert filed, will the SCOTUS take Cert?

Apr
1

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 6th Circuit Court of Appeals.  A Petition for Writ of Certiorari to the US Supreme Court was filed last week.


Frank v. Gateway Insurance Company: Federal District Court Cites Bradley in Approving LMSA since CMS Does Not Show Up for Hearing

Mar
19

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.


MSPRC Announces New Self Calculation Option for Conditional Payments

Dec
16

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). 


Hadden v. US – 6th Circuit Affirms Federal District Court’s Rejection of Ahlborn Approach for Medicare Conditional Payments

Nov
29

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


The New Frontier of Liability Medicare Set Asides: What Should be Done when Settling a Liability Claim with a Medicare Beneficiary?

Nov
28

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 v. Marine Terminals of Arkansas: Can a Federal Court Approve an MSA when CMS Refuses to Review? YES

Nov
2

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.


MSPRC Announces Fixed Percentage Option for Resolving Conditional Payments in Low Dollar Settlements

Nov
2

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.


SMART Act (S. 1718) Introduced in Senate – MSP Reform is Rolling Forward

Oct
19

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


CMS Issues Important Memo Regarding Liability Medicare Set Asides

Oct
3

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 Issues Alert Regarding Medicare Mandatory Insurer Reporting – More Delays

Oct
3

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


MSPRC Going to Self Service?

Sep
26

New MSPRC self service feature announced. 


Winds of Change Blowing at the MSPRC?

Sep
23

Is the MSP recovery contractor going to change?


The AAJ Announced CMS New MSP Guidelines "Coming"

Sep
20

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


MSPRC Announces Low Dollar Threshold for Conditional Payments

Sep
7

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


Schexnayder v. Scottsdale Insurance Company: Cites Stalcup LMSA Memo as Authority but Confusion Remains

Aug
15

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).


Medicare's Final Demand Letters: Subtle Changes Due to Haro

Aug
3

On June 27th, 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.


House Energy and Commerce Committee Sends a Letter to Secretary of HHS Regarding Medicare Conditional Payment Recovery Process

Jul
28

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.


Wilson v. State Farm Mutual: No Bad Faith where Insurer Refuses to Pay Limits until Medicare Lien Amount is Determined

Jul
26

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 memo on Liability Medicare Set Asides – A must read!

Jul
24

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.


House Energy and Commerce Committee Meeting on MSP Held on 6/22 – CMS CFO Grilled

Jun
23

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 Revamped Rights and Responsibilities Letter isn’t a Radical Change

Jun
20

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


Hinsinger v. Showboat Atlantic City – Should a Liability MSA be Reduced by Procurement Costs? One court says yes

Jun
13

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. 


MSPRC to Resume Issuing RAR Letters as of 6/10

May
31

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


Southwest Fiduciary v. Willingham – Medicaid is limited in its lien to what was actually paid, not the total of the claimed medical damages.

May
31

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. 


Donna Black v. John/Jane Doe Employee Et Al – Another Federal Court Ruling on Ripeness of Medicare Secondary Payer Act Related Claims

May
31

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.


MSPRC Issues Alert that it is Temporarily Suspending Issuance of Rights and Responsibilities Letters as well as Demand Letters

May
25

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.

May
19

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. 


Haro v. Sebelius – US District Court Enjoins Medicare on Behalf of Putative Class Plaintiffs, Medicare beneficiaries, over MSP Collection Practices

May
13

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.


Sullivan v. Farm Bureau Mutual Insurance Co. of Michigan – Another Case of a Premature MSP Action

May
10

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.


Florida Bar Staff Opinion 30310 – It is Unethical for Defense Counsel to Request indemnification/hold harmless regarding MSP Executed by Plaintiff Counsel

May
2

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.


United Airlines v. Nemoto – Medicare Set Aside Contingencies Can Cause Settlements to Fail or Not

May
1

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.


Parra v. PacifiCare – Federal District Court Rejects Jurisdiction on Medicare Advantage Plan’s Reimbursement Action

Apr
15

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.


Benson v. Sebelius – DC District Court follows 8th & 9th Circuit in terms of results for Medicare conditional payment recovery in wrongful death cases

Apr
11

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. 


Alcorn v. Pepples – Medicare conditional payments aren’t ripe until there is a settlement, judgment or award

Apr
11

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.


ABA Passes Resolution Regarding Medicare Set Asides and the MSP

Mar
29

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.


Medicare Secondary Payer Compliance in 2011 & Winning Lien Resolution Techniques Seminar

Mar
28

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


Medicare Set Asides – How are they Administered?

Mar
28

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. 


Hicks v. Chamberlin – Medicare’s Administrative Process Must Be Exhausted Before Dragging CMS Into a Case over Conditional Payments

Mar
21

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. 


Be Leary of MSA Allocations Prepared by the Defense- It Could Be an Attempt to Limit Damages

Mar
20

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


HR 1063, the Strengthening Medicare and Repaying Taxpayers Act of 2011 (“SMART Act”) was introduced into Congress with bi-partisan support on March 14th, 2011

Mar
18

HR 1063 was introduced in the 112th Congress by Representative Tim Murphy (R-PA) and Representative Ron Kind (D-WI) on March 14th, 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. 


Southwest Fiduciary v. Arizona Health – AZ Court of Appeals Applies Ahlborn & Approves Limited Reimbursement of Medicaid

Mar
13

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


Hudson v. Cave Hill Cemetery – Absence of MSA Allocation Amount Precluded Alleged Settlement from being Enforced

Mar
13

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


ArvinMeritor v. Johnson - Who pays when an MSAT comes back higher than anticipated?

Mar
13

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.


Portman v. Goodson - Defendant can't get declartory judgment regarding Medicare conditional payment while still litigating PI claim

Mar
12

A federal district court dismisses a 3rd 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. 


Hensley v. Marion - Medicare Regs don't Preempt State Enforcement Action

Mar
3

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. 


Wilhoite v. Missouri Dept. of Social Services - Ahlborn Class Action?

Feb
27

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


Ohio Bar Opinion Addresses Indemnification Clauses

Feb
27

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


Humana Medical Plan, Inc. v. Reale - FL Fed Dist Court Limits Medicare Advantage Plan's Recovery Rights

Feb
9

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.


Goulet v. Woman’s Touch in Healthcare: Florida Circuit Court follows Ahlborn and significantly reduces Medicaid Lien

Jan
23

A Florida Circuit Court Follows Ahlbornand significantly reduces Medicaid Lien


Smalley v. Nebraska Department of Health & Human Services

Jan
23

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


Basic Steps for Medicare Conditional Payment Resolution

Jan
12

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. 


Big R Towing, Inc. v Benoit, et al. - US District Court Finds MSA Necessary in Jones Act Case and Allocates Future Medical

Jan
12

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. 


Ninth Circuit Disagrees with Bradley v. Sebelius - Farmers Insurance Exchange v. Leona Forkey

Jan
5

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


NYC Bar Opinion Addresses Defense Requests for Medicare Conditional Payment Indemnification Clauses

Nov
28

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 Judges bar Medicare indemnification language from releases

Nov
20

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


Medicare on the Check – Zaleppa v. Seiwell follows Tomlinson v. Landers

Nov
20

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


US v. Stricker done? Not so fast my friends!

Nov
20

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


Liability Medicare Set Asides - Considering Medicare's Future Interests?

Nov
20

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


Part 5: Ethical Issues at Settlement – Protecting the Injury Victim Client

Nov
20

This is part 5 of a series on ethical issues at settlement that every personal injury lawyer should be familiar with. 


Part 4: Ethical Issues at Settlement – Protecting the Injury Victim Client

Nov
20

This is part 4 of a series on ethical issues at settlement that every personal injury lawyer should be familiar with. 

 


Part 3: Ethical Issues at Settlement – Protecting the Injury Victim Client

Nov
20

This is part 3 of a series on ethical issues at settlement that every personal injury lawyer should be familiar with. 


Part 2: Ethical Issues at Settlement – Protecting the Injury Victim Client

Nov
20

This is part 2 of a series on ethical issues at settlement that every personal injury lawyer should be familiar with. 

 


Part 1: Ethical Issues at Settlement – Protecting the Injury Victim Client

Nov
20

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


Medicare Mandatory Insurer Reporting Pushed Back AGAIN!

Nov
15

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. 


Ahlborn – Application to Liability Medicare Set Asides?

Oct
26

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 – Know what it means? You should if you represent injury victims

Oct
24

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 Requests GAO Perform a Study on MSP Related Issues

Oct
6

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


US v. Stricker – Government loses on a statute of limitations argument

Oct
4

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.


Bradley v. Sebelius – 11th Circuit Approves Equitable Distribution of a Settlement to Reduce Medicare Conditional Payment

Oct
4

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


Hadden v. US – Federal District Court Rejects Ahlborn Approach for Medicare Conditional Payments

Oct
4

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


HR 4796 (MSP Enhancement Act) Status Update

Oct
4

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.


Finke v. Hunter’s View, LTD. – Federal District Court Finds No Liability Medicare Set Aside Allocation Necessary

Oct
4

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.


10/1/2010 was MMSEA TPOC Day!

Oct
4

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. 


A Federal Judge Reduces Medicaid Lien from 1.2 Million to $537,448.43 based upon Ahlborn

Aug
29

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%.


Spencer v. Hartford - Hartford Agrees to Pay $72.5 Million in Structured Settlement Class Action

Aug
29

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. 


What are a personal injury attorney's obligations in regards to structured settlements

Aug
29

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.  


When is an MSA definitively not necessary?

Aug
20

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.


Hackley v. Garofano - CT court follows Seger and compels plaintiff to provide Social Security Number

Aug
16

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. 


Seger v. Tank Connection - Court Compels Plaintiff to Respond to MMSEA Discovery

Aug
3

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


Adrian v. Mesirow - Defense Settlment Planner not liable to the plaintiff

Aug
1

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


Lessons Learned from Smith, Russell & Scharba

Jul
30

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


CMS's failure to reivew Liablity Set Asides

Jul
28

CMS is routinely NOT reviewing proposed Liability Medicare Set Asides


Price v. Wolford – 10th Circuit Court of Appeals Voids Ahlborn Allocation for Lack of Evidence

Jun
30

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. 


NC Federal District Court Upholds State's Medicaid Lien Statute

Jun
29

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


Florida Bar Committee Proposes New Rule for Lien Resolution Outsourcing

Jun
28

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. 


Taxation of Physical Injury Damages

Jun
15

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


Ahlborn Reduction Argument Rejected by New Jersey Court in Medicare Conditional Payment Case

Jun
2

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


CMS Query for Section 111 Reporting

May
16

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


Dual Eligibility - Medicaid & Medicare Beneficiaries

May
12

Planning for those that are dual eligible is critical.


Dual Eligibility - Medicaid & Medicare Beneficiaries

May
12

Medicaid programs available to those that are dual eligible. 


Dual Eligibility - Medicaid & Medicare Beneficiaries

May
12

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 - Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act of 2009

May
11

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

May
11

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


Senate Hearing on MSPRC

May
11

MSPRC not hitting its contracting benchmarks. 


Haro v. Sebelius - Challenge to MSP Collection Practices

May
4

Haro v. Sebelius - Challenge to MSP Collection Practices


Know Your Public Benefits

May
3

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

Apr
20

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


Expansion of Medicaid

Apr
19

Expansion of Medicaid


Florida's Medicaid Lien Reduction Formula

Apr
14

Florida has a statutory reduction formula for Medicaid liens.


Medicare will not pay for certain treatments due to medical malpractice

Apr
9

Medicare will not pay for certain treatment related to medical malpractice


Scharba v. Braden - Ahlborn Decision

Apr
1

Scharba v. Braden, an important Florida Ahlborn decision. 


CMS addresses Liability Medicare Set Asides in Conference Call

Mar
16

MMSEA TownHall Conference Call Addresses LMSAs


Medicare Secondary Payer Enhancement Act of 2010

Mar
11

Medicare Secondary Payer Enhancement Act of 2010


USA v. Stricker Part Two - Government's MSJ

Mar
1

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


USA v. Stricker

Feb
26

The import of USA v. Stricker


Medicare Mandatory Insurer Reporting (MMSEA - Section 111)

Feb
17

MMSEA Reporting deadline pushed back again. 


Medicare on the Settlement Check

Apr
30

Defendants increasingly want to put Medicare on the check.



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