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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 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 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.


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.


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.


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.


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.


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.


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.


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).


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.


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. 


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. 


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.


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. 


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. 


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.


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. 


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 . . . .


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.


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.


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.


CMS's failure to reivew Liablity Set Asides

Jul
28

CMS is routinely NOT reviewing proposed Liability Medicare Set Asides


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). 


CMS addresses Liability Medicare Set Asides in Conference Call

Mar
16

MMSEA TownHall Conference Call Addresses LMSAs



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