Archive for the ‘MEDVAL News’ Category
Q & A from Medicare Secondary Payer Act: Protecting Medicare’s Interest in Insurance Settlements Audio Conference
Monday, April 25th, 2011Jennifer Jordan recently presented Medicare Secondary Payer Act: Protecting Medicare’s Interest in Insurance Settlements for Lorman Education Services. The following is a transcript of questions and answers from the audio conference.
Our firm currently has a claim where the claimant has a reasonable expectation of Medicare entitled in the next 30 months but the settlement amount is less than 250K. We had an MSA prepared and it is our position that in doing so, we have taken Medicare’s interests into consideration and that is all we need to do. Our client, however, insists that is not the case. My question is: is it?
It is all you need to do as far as I am concerned from a MSP compliance standpoint, but as you will recall from the presentation, you can do more with regard to funding and administration to make sure that the money meets its intended purpose and Medicare not placed in a position in the future of making payments even though its interests were considered and funded at settlement. You cannot force CMS to opine as to the sufficiency if doesn’t meet the criteria for review, and in fact CMS has complained recently that about a third of its submissions are non-threshold and rejecting those is bogging down its process. Another thing I’ve seen is adopting a statement of understanding as an appendix to the settlement agreement, outlining the responsibilities and understanding of all parties with regard to the MSP. Like I said in the presentation, adopt a level of compliance that you are fully prepared to defend if and when the time comes – that’s all you can do right now.
According to the presentation, an insurer is required to report a settlement. It is my understanding that a hospital is required to report any possible liable third parties that are discovered to CMS; however, is a hospital required to notify CMS at the time of settlement (if the hospital knows of the settlement) that the Medicare beneficiary is about to receive settlement proceeds? Or is it sufficient for a hospital to inquire of the patient/their representative as to whether any Medicare liens have been satisfied? (The general practice at the hospital in question is to wait to receive payment until any outstanding Medicare lien is satisfied).
The hospital has no MMSEA reporting requirement of a third party liability settlement where it is not the RRE. As a Medicare provider it has an obligation to ask all the right questions about a potential primary payer situation and report those back to Medicare, but no obligation that I am aware of to continue to follow the matter and report developments [but that is not an area of Medicare knowledge that I am proficient in so don't hold me to that]. I’m assuming you are referring to a situation where the hospital is holding a lien against the settlement rather than accepting the Medicare payment pursuant to chapter 2 of the MSP manual § 40.2. In that case, the general practice is prudent because if the hospital accepts payment from the settlement proceeds prior to Medicare being reimbursed, it is subject to a reimbursement claim pursuant to 42 USC 1395y(b)(2)(B)(ii) as a party in receipt of settlement funds.
To what degree will weak causation assist in minimizing the amount of an MSA (e.g. toxic tort case where it is questionable whether case would even survive summary judgment)?
Again I reiterate the significance of the Bradley v. Sebelius decision in the 11th circuit [621 F3d 1330]. Unless and until CMS understands that full recovery in liability settlements is uncommon and influenced by a number of legal and financial factors, we will continue to struggle with its insistence that it is entitled to full reimbursement from dollar 1 for all related medical, past and future. For those accepting of the fact that Medicare does have a future interest to protect, I merely recommend that they allocate with the means of their settlements and explain as much as they can within the settlement docs what MSP compliance measures they were able to provide. Break down the settlement amount into its component parts and the fair & reasonable portion that represents medical is what it is. Artificially inflating other claims will basically push CMS to assert its usual claim that it is not bound by such designations. Until we get more definitive guidance from CMS, Congress or the Courts, we can only adopt a defensible position and hope for a reasonable court and a better understanding of the MSP when the time comes, if it comes.
If funds are set aside and the beneficiary does not survive long enough to spend the money on treatment, who owns the remaining money?
Medicare only has rights to reimbursement for payments made, so after repaid, the money reverts to the estate of the deceased unless in some kind of a custodial situation where the carrier retained a reversionary interest or perhaps a pooled trust situation where the funds remain with the trust for the benefit of other trustees.
Jane Doe is seriously injured on 1/1/11 and incurs $250,000 in medical expense in the first 2 weeks of treatment. The adverse driver is clearly at fault and has a liability policy limit of only $100,000. The insurer wants to settle for the policy limit on 2/1/2011.before any of the medical expenses have been paid by Medicare. Can I request the conditional payment letter, which will presumably show “0″ in payments, and settle case and allow Medicare to pay the medical expenses after the settlement is completed?
You likely can’t outrun or defraud Medicare simply by acting quickly. MSPRC will never issue a demand with 30 days not matter what the circumstances, and until a demand is made, you cannot make a final payment, even if it is zero. They know the providers have 180 days to submit billing and they hold out in all cases as long as they can to make sure that they captured as much billing as they can before making demand. Because there is a demonstration of Medicare payments which would trigger the reporting to the COBC under 42 CFR 411.25 anyway, you’d be hard pressed to convince CMS that you disbursed funds unknowingly and not find yourself on the other end of a reimbursement action as a person in possession of funds from the settlement.
Do Medicare Advantage Plans have to act on behalf of Medicare to enforce Medicare’s rights to recover settlement proceeds? And, if so, to what extent are Medicare Advantage Plans obligated to pursue such Medicare rights? Can Medicare Advantage Plans settle claims without Medicare’s approval and, if so, to what extent do they have to pursue such claims?
Interestingly, the answer is yes & no. MA Plan is secondary and obligated to coordinate benefits and seek reimbursement where applicable, but does not have the power to file a claim in court for recovery. There’s a technicality in the Medicare statute that only confers all of the powers of the “Secretary of Health and Human Services” upon the MA Plan, meaning that it may make a conditional payment, charge interest and waive rights, but cannot bring an action, subrogate or seek recovery within the 3 year period beginning 3 years from the date of services (that no one uses) because those sections of the MSP state that the “United States” may…. There have been 2 cases in just the past few months that discuss the issue: Parra v. PacifiCare [2011 U.S. Dist. LEXIS 33630] and Humana v. Reale [2011 US Dist LEXIS 8909]. So in the end, it appears that not only is the MA Plan able to but required to purse recovery & completely authorized to negotiate without any input from Medicare, but should it need to pursue court action, the MS Plan needs to rely upon contract law in state court or possibly refer the claim to the DOJ where I assume that a claim for double damages would be possible since a recovery of a Medicare payment is still involved.
Hospitals can choose to bill the liability carrier, in lieu of Medicare, where liability insurance is available. You discussed the issue of future medicals related to the accident, incurred after the date of accident. If Medicare were to pay for treatment related to the accident (after the settlement), would the hospital still be a possible liable party from which Medicare could try to recover its payments? Or, if the hospital accepted its payment at a time when Medicare did not have a lien, would the hospital be free of any such liability?
If the hospital lien was satisfied from settlement proceeds and Medicare has a claim for conditional payment reimbursement, it may seek repayment from anyone in possession of settlement funds pursuant to 42 USC 1395y(b)(2)(B)(iii) and 42 CFR 411.24(g) which includes the hospital. What we don’t have is any evidence of CMS successfully asserting claims for post-settlement conditional payments, only its intent to do so as demonstrated in Stricker.
Medicare billing policy permits providers like 180 days to submit billing, so just because you managed to conclude a claim prior to Medicare being billed for related services does not diminish its reimbursement rights.
I just settled a liability bodily injury case for $125K at Friday’s mediation (4/15/11). The plaintiff had health insurance, which covered his treatment/oral surgery. Do I need to report this settlement to Medicare now?
MMSEA Section 111 reporting would not apply since does not start until 1/1/12 for claims settlement on or after 10/1/11. Reporting under 42 CFR 411.25 wouldn’t apply since there is no demonstration that Medicare made payment. While you could voluntarily report to COBC to make sure Medicare wasn’t owed, there does not appear to be any obligation to do so.
I am a Plaintiff’s attorney. I received a jury verdict and the insurance company sent me two checks, one for the Medicare conditional amount and one for the balance. The conditional payment was payable to my firm and Medicare, and I forwarded it to Medicare. I then received the final settlement letter, which was less than the conditional payment amount. I called Medicare and was told that a “Closing letter” would be sent, and 14 weeks later, the balance of the conditional payment minus final settlement would be sent back to me for my client.
3 questions:
Are you familiar with the closing letter, 14 week wait scenario?
Not surprised actually. If just making a conditional payment inquiry, MSPRC has 45 days to respond, if to do nothing but notify the parties that it will be needing more time. On average, this process takes us 3 to 6 months to obtain a demand. If you’ve reached conclusion in 14 weeks, you are still better off than waiting for all settlement checks to be issued once demand finally made.
What can I do to expedite receipt of the balance?
Typically you want to initiate a conditional payment search prior to settlement so that the balls are in motion when the check sent for final endorsement. If MSPRC is getting hit cold with a check, 120 days is not surprising nor would I think unreasonable. However given that I’d be happy with 120 days from request to demand, I still think that the 3 party check makes them act faster.
You mentioned a CA case setting a 30 day limit for returning the balance. Can you foreword that cite?
Wall v. Leavitt [2008 US Dist LEXIS 23956] (note that the court didn’t say there was a 30 day limit, only that even 30 days in this case would have been reasonable since the funds were turned around in a record 11 days)
Some health care systems have fronting PL/GL policies from domestic U.S. insurers that are 100% reinsured by the systems’ offshore captive insurance companies. If the system is self-administering the claims, the U.S. insurer typically requires that the system pay the claimants directly for settlements. The systems realize that they should be the RRE in this situation, rather than the U.S. insurer. However, they have questions about how to populate certain reporting fields, specifically fields 72, 73, and 75 (see attached). Does the system use its own TIN, office code/site ID, and claim number, or the fronting insurance company’s TIN, office code ID, and claim number?
I think you need to review the Alert from April 5, 2010 (also may be implemented in the latest user guide under foreign RREs). If the system is making payments directly than it is the RRE and the answers to your data fields lie in the creation of the fake TIN in field 72 and utilizing the options to populate the other fields with zeros or spaces pursuant to the descriptions in the chart for the other fields. The form for the fake TIN is 9999xxxxx, the x’s representing a 5 digit number of the system’s selection.
With regard to “negotiating” the amount due on the conditional payment letter – you gave a “formula” to determine the ratio of procurement – I didn’t quite catch it all – will you please provide me with the formula…..it was atty fees + expenses…….
[(attorneys' fees + expenses) / total settlement amount] x Medicare demand
See 42 CFR 411.37
If you have a Plaintiff that claims they do not have Medicare, they have a letter that shows they have been denied SSDI, but a query regarding Medicare shows this Plaintiff eligible, how can you determine whether or not they actually have Medicare? Do you have to go through the lengthy process with Medicare or is there some other way? Plaintiffs counsel believes that the letter from SSDI should be enough and is bringing a Motion to Compel. As a side note, I believe the Plaintiff did have Medicare in the past but claims that was years ago.
If the plaintiff executes a form SSA 3288, you can go to any social security office to request Medicare statue information. The problem with the query appears to be if the plaintiff was ever entitled to Medicare for any period of time, the system is continuing to kick out false positives and that sounds like what happened here.
I wondered whether there is any guidance re how to treat plaintiffs in a medical monitoring claim against defendants with liability insurance — because those types of damages are possibly similar to future-oriented medical payments under a workers comp setting. Would defendants need to determine who is likely to be eligible for Medicare in 30 months, as in a workers’ compensation setting, as opposed to who is eligible at the time of settlement?
Might need more info here. I don’t understand if you’re proactively funding the monitoring MSA style whether ultimately needed or not, or monitoring for some period to provide treatment if needed when needed. Either way, the 30 months only applies if you are seeking CMS review in a WC settlement so kind of irrelevant. If Medicare eligible during this period of time and funds provided or treatment provided if needed, you’d be in compliance by making sure that Medicare not pay. Thing I’d wonder about is the reporting requirement if providing a promise to treat if needed, because that technically would be ORM and need to be reported. Not sure if you want to flesh out that question a little more so I understand the question better
Leading New York Defense Attorney Endorses LexisNexis Medicare Secondary Payer Book
Monday, March 28th, 2011“The Complete Guide to Medicare Secondary Payer Compliance (LexisNexis) is a long awaited one-stop resource for the myriad of statutes, regulations, manuals, and memoranda proliferated by the Centers for Medicare and Medicaid Services. Ms. Jordan and her contributors provide concise, practical analysis of the multiple layers and nuances of Medical Secondary Payer compliance. The Guide is a valuable resource for plaintiff and defense counsel, as well as – insurance carriers, employers, and third party administrators, working to fulfill their responsibilities under the MSP Laws.”
- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York.
Analysis of H.R. 1063
Thursday, March 17th, 2011On March 14, 2011, Congressman Murphy of Pennsylvania introduced H.R. 1063 to Congress, titled “Strengthening Medicare and Repaying Taxpayers Act of 2011.” Despite the pandering title that forms a such a clever acronym, the new bill appears to have removed most of the blatantly self-serving provisions for its promoters that would have prevented H.R. 4796 from ever scoring. In essence, H.R. 1063 calls for adjustments to the MSP that would ease burdens on both CMS and the insurance industry.
The bill begins with a much needed timeline for conditional payments. Within 120 days of an expected settlement, judgment or award, parties may request the conditional payment letter and CMS has 65 days to respond. If CMS fails to respond in time, the parties would serve notice of the failure and if the reimbursement amount is not provided within 30 days of that notice, then the Secretary loses her recovery right against all parties susceptible to recovery from that claim. If the case doesn’t settle, the Secretary is entitled to notice within the original 120 window. And finally, an appeal is provided which appears to be the same as the current Medicare appeal process where one would dispute claims anyway. The bill remains silent as to impact of the appeal on payment, implying that payment will still have to be made on demand and the appeal used to seek reimbursement.
Next the bill carves out a certain subset of claims, triggered by a dollar amount determined on a variable basis annually by the Chief Actuary of CMS, where the MSP simply wouldn’t apply – no reporting, no reimbursement. The previous bill set the amount at $5,000 and was likely one of the key problems with scoring. By setting a variable threshold, it is up to the Chief Actuary to find the sweet spot where the amount that they are letting go equals the cost of the recovery (I would hate to be that poor guy). Personally I feel like the cost of recovery should be minimal since the millions invested in electronic infrastructure since the MMSEA amendment was enacted should automate the process, and therefore no exclusion would apply. The cases that are costly to recover are more than likely those with high value and in dispute, and CMS would certainly be better served by establishing criteria for compromise where Medicare’s recovery right exceeds the available insurance rather than waiving the easy ones. If the amount demanded was reasonable in light of all else and known at the time of settlement, CMS would find that insurers would be far more forthcoming with payment.
The bill then carves out some safe harbors from the MMSEA penalty, currently expressed as a mandatory $1,000 assessment for each day of noncompliance regardless. The bill changes the word “shall” to “may,” making the imposition discretionary rather than mandatory. Additionally it seeks to establish criteria for when the penalty would not apply at all. This is a much needed solution to some mass tort situations where the insurance payment will be made into a fund that will payout claims to claimants unknown at the time of settlement. The uncertainty of not knowing if CMS would impose a fine for failure to report those unknown individuals has stalled some agreed settlements, leaving claimants angry that payments are not being made.
Now Section 5 is a mystery to me. It proposes to make disclosure of social security or health identification claim numbers in the reporting essentially voluntary. How exactly is the reported data to be correlated to the proper individual otherwise? The problem the bill is looking to overcome is the fact that there is no legal obligation to disclose that information in the underlying state law giving rise to the claim, nor in the MSP, and the burden of trying to extract that information from noncooperative parties is great. Despite already having a protocol for demonstrating good faith efforts at compliance in those situations, the new legislation could easily obligate an individual contractually bound to Medicare to disclose such information to a third party insurer for coordination of benefits purposes. Frankly making the change in the next User Guide would accomplish the same thing without Congress’ help.
Finally, Section 6 adds a much needed statute of limitations to the time the US may bring claims for recovery or assess penalties. The intent was to limit repayment to 3 years from the date of demand and penalties to 3 years from the date the reporting should have taken place. However what we got was a 3 year limit to when the United States can file an action. Recall the lesson learned from the Humana case in that the wording and placement in the statute will be strictly construed. That leaves Medicare’s subrogation right in (2)(B)(iv) and the private cause of action in (3)(A) open to interpretation. And let us not forget that this fails to address the original conflicting limitation of 3 years from the date of service found in (2)(B)(vi) gifted to us by the 105th Congress in the Balanced Budget Act of 1997 conveniently ignored in all MSP litigation to date
All in all, the new bill reflects an improved effort but it could still use some work. The manner in which the bill attempts revenue neutrality is intriguing and those supporting the bill will ultimately benefit from how many $600 light bulbs illuminate the desks of those government workers involved in the recovery effort.
See full text of the bill at: http://thomas.loc.gov/
MEDVAL is Proud to Support Wells for Life
Tuesday, March 15th, 2011For the cost of one MSA
For a little less than the cost of the average MSA, you could provide clean drinking water for ten years to an entire village in India. It is estimated nearly one billion people worldwide do not have access to clean drinking water. Here are some other facts you may not know collected from the website of Wells for Life www.wellsforlife.org
- 98% of water-related deaths occur in the developing world.
- Poor people living in the slums often pay 5-10 times more per liter of water than wealthy people living in the same city.
- Women walk on average 3.5 miles a day to collect water and spend around 3 hours collecting and carrying water. The average weight of water carried on their heads is 45 pounds.
- Over 6,000 children die daily due to sickness and disease directly attributable to bad water and poor sanitation.
- Infant Mortality Rate: 1 out of every 9 boys dies in India before the age of 5. 1 out of every 10 girls dies in India before the age of 5.
- The following diseases are the result of unclean water ingested through the stomach: Diarrhea, Dysentery, Cholera, Typhoid, Hepatitis, Polio (In India, diarrhea alone causes more than 1,600 deaths daily).
Additionally, through standing water, stagnated water and drainage the following diseases get into our bodies through insect bites: Malaria, Encephalitis, Dengue fever - The average American spends $240 per month on fast food but only $5 per month helping the poor.
MEDVAL strongly supports the mission of Wells for Life and encourages others in the Insurance/MSP industry to donate the cost of one MSA to the cause. For the rest of 2011, we will match any donations up to $30,000 (the total will build 60 wells and serve over 30,000 people) from others that wish to join this worthy cause of helping to alleviate the poverty and suffering caused by not having access to clean drinking water.
To donate, contact Jon Gunter at jgunter@medval.com or 1-888-SET-ASIDE x486. Plus you will get a snazzy little plaque like the one below on your well.
Ryan
PS Structured settlement brokers and Custodial Administrators, don’t feel left out. For the commission on one $37,500 annuity or one year’s set-up fee on a custodial account, you can get in on the action too. Wells for Life is the only charitable organization I know where 100% of donated funds go directly to a water project.
Jennifer Jordan Recognized as One of Workers’ Compensation Notable People for 2010
Friday, February 25th, 2011MEDVAL is pleased to announce that Jennifer Jordan, General Counsel and founding member, has been recognized as a Workers’ Compensation Notable Person for 2010 by the LexisNexis Workers’ Compensation Law Community.
Jennifer was recognized as a Visionary and “a leading authority on Medicare Secondary Payer compliance. She has provided practical advice and in-depth knowledge to virtually every type of entity subject to Medicare Secondary Payer (MSP) compliance.”
“It is her belief that the only way to overcome this substantial and costly hurdle to insurance settlements imposed upon the industry by the federal government is to first reach a common understanding of what the MSP actually requires, and then utilize that knowledge to develop alternative compliance strategies; therefore, she has devoted considerable time over the years to educating attorneys and other professionals on MSP-related matters.”
In 2010, she served as Editor-in-Chief of The Complete Guide to Medicare Secondary Payer Compliance (LexisNexis), a comprehensive resource designed to help attorneys and others take control of their insurance settlements. She also writes the popular “Ask Jen” column on MEDVAL’s blog (www.medicaresetasideblog.com) where she answers questions from professionals across the country.
Read the full announcement here.
About the Award
The LexisNexis Workers’ Compensation Law Community is proud to sponsor the awards for Workers’ Compensation Notable People for 2010. These exceptional people have worked tirelessly on behalf of their clients and have made significant contributions this past year to the workers’ compensation system and/or the workplace.
The recipients of the 2010 awards were selected by LexisNexis with feedback from various organizations and experts in the field, including the Workers Injury Law & Advocacy Group (WILG), the National Workers’ Compensation Defense Network (NWCDN), the Work Comp Analysis Group on LinkedIn, and selected members of the Larson’s National Workers’ Compensation Advisory Board.
MEDVAL’s MEDICARE SET-ASIDE BLOG wins Top Blog Award from Lexis/Nexis
Wednesday, November 10th, 2010MEDVAL is pleased to announce that the OFFICIAL MEDICARE SET-ASIDE BLOG AND INFORMATION RESOURCE has been selected by LexisNexis as one of the 2010 Top 25 Blogs for Workers’ Compensation and Workplace Issues. The LexisNexis announcement proclaimed “These top blogsites contain some of the best writing out there on workers’ compensation and workplace issues. They contain a wealth of information for the workers’ compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers’ compensation and workplace issues.”
MEDVAL was selected in the niche blog category and the judges noted “The Official Medicare Set Aside Blog provides up-to-date and pertinent analysis of one of the most complex areas within the workers’ compensation arena: Medicare Set Asides. Of the many informative sections of the Blog, many readers turn first to the section entitled “Ask Jen.” There, Jennifer Jordan, General Counsel for MedVal, provides clear answers to even the testiest MSA questions. The site includes in-depth commentary on a host of other issues, including post-settlement custodial administration, structured settlement funding and conditional payment negotiations.”
This is the second year in a row that the blog has been recognized. By Lexis/Nexis.
CMS RO contacts for Liability MSAs
Wednesday, November 10th, 2010MEDVAL contacted CMS regional offices and compiled a contact list, LMSA reviewers name and their thresholds for reviewing LMSAs. As with all things CMS, this list is accurate as of 11/10/2010 but beware of unannounced changes.
US v Stricker Opinion
Monday, October 4th, 2010On September 30, 2010, the Stricker opinion was released by the Alabama District Court. The opinion validated all of the rumors as to the case being dismissed due to statute of limitations issues. As suspected, the case was dismissed on the fact that regardless of whether a three or six year statute of limitations was appropriate, the federal government’s filing was untimely because it missed in either case. The Abernathy settlement was announced on August 20, 2003, $75M transferred into court escrow on August 26, 2003, settlement was approved by the state court on September 10, 2003 and a week later, Defendants paid $200M into the court settlement account; however the settlement was technically not final until December 2, 2003 when the plaintiffs’ counsel filed certification with the court that the last conditions had been met and distribution of funds could commence. While the government relied upon the December date in all of its filings, the Defendants made very convincing arguments that the earlier dates, at which time the actual “insurance payments” were made, was the appropriate triggering event pursuant to the Medicare manuals and that regardless of which statute of limitations the court applied, the government’s filling was not timely on December 1, 2009.
While disappointing that the case did not provide all of the much desired judicial interpretation with regard to the claim for six years of post-settlement conditional payment recovery and the use of the Federal Claims Collection Act (FCCA) statute of limitations as opposed to the one expressly provided in the MSP, the court rationale did add a new flavor to the MSP debate. The court relied upon the parties’ pleadings and stated that because the parties agreed that the MSP is silent as to a deadline for filing a claim for recovery, the relevant statute of limitations is the FCCA. Technically, they are right in that the MSP only states that the United States “may seek to recover conditional payments … within the 3-year period beginning on the date on which the item or service was furnished” and does not in fact say when it may bring that claim. The interesting twist the opinion took unnecessarily, because the point was moot as to all the parties, was the distinction between a recovery based upon tort or contract under the FCCA. The FCCA provides an action founded upon a tort a three year filing period, whereas an action founded upon any contract, express or implied, is given six years. In the analysis, the corporate defendants were deemed to have been subject only to the three year SOL because there were no contractual ties to the government, only the statutory obligation triggered by the underlying tort claim. The defendant attorneys on the other hand were granted contractual status as fiduciaries of Medicare beneficiaries contractually bound to the Medicare program to assist with its recovery program when necessary, and therefore were subject to the six year SOL. A tenuous but interesting position to take.
Again the point was irrelevant because the December 2nd date was not adopted by the court as the triggering event, but an interesting distinction made by the court that could set up the government for an appeal. The one date that the opinion is silent to is the date upon which the attorneys took their fee from the settlement funds. The opinion notes that on October 29, 2010, the defendants attorneys were transferred the settlement funds held by the court after certifying that 75% of the adult plaintiffs had signed releases; but the funds were not to be distributed until 97% had signed. If the attorneys’ fee was included in the restriction on distribution, the government could still have an argument against the defendant attorneys. The government apparently made the argument about “receipt” in its pleadings; however it was dismissed without much respect to the concepts of actual verses constructive receipt. Is constructive receipt truly enough to trigger the MSP obligations as contemplated by the 110th Congress when it adopted the MMA Section 301 amendment to the MSP three days after the Abernathy settlement was certified on December 2, 2003? Unlikely as the Congressional record does not reflect much contemplation at all as to the MSP amendment, but that’s a discussion for another time.
If the government is so bold as to appeal this decision considering $69 million dollars is at stake, an appeal to the 11th Circuit would be most interesting. Just last week, the 11th Circuit Court of Appeals handed down the opinion in Bradley v. Sebelius essentially adopting apportionment in MSP recovery actions regardless of all existing statutory and regulatory authority granting Medicare a right to 100% reimbursement. Medicare’s statutory right applies from dollar one of any insurance recovery regardless of amount or admission of liability, and all of the subsequent case law supports that right. Bradley was the first MSP action to move in the direction that the Supreme Court took in ADHS v. Ahlborn in 2006 supporting apportionment in Medicaid recovery actions despite state law that granted the program similar rights as granted Medicare under the MSP regulations. Given that court’s existing subject matter knowledge, further analysis of the MSP could get interesting should this case land on its doorstep.
Read the complete opinion here.
MEDVAL joins the 2010 Inc. 5000
Monday, August 30th, 2010MEDVAL joins the 2010 Inc. 5000 with Three-Year Sales Growth of 342%
Columbia MD, August 30, 2010 — Inc. magazine ranked MEDVAL LLC number 884 on its fourth annual Inc. 5000, an exclusive ranking of the nation’s fastest-growing private companies. The list represents the most comprehensive look at the most important segment of the economy—America’s independent-minded entrepreneurs. This year marks the first time MEDVAL has appeared on the list. MEDVAL also ranked 19th in the Baltimore region and 14th in the insurance industry category.
“The leaders of the companies on this year’s Inc. 5000 have figured out how to grow their businesses during the longest recession since the Great Depression,” said Inc. president Bob LaPointe. “The 2010 Inc. 5000 showcases a particularly hardy group of entrepreneurs.”
MEDVAL President, Ryan Roth commented “We are honored to receive this recognition for our growth. More importantly, our growth reflects a continuous focus on providing our customers the service and expertise they need to meet the challenge of compliance with complex Medicare Secondary Payer regulations. “
For more information, visit Inc.com
MMSEA Section 111 – Summaries of CMS Teleconferences
Thursday, August 19th, 2010This document (pdf) contains summaries of CMS teleconferences regarding Implementation of MSP Mandatory Reporting Provisions Liability for Insurance, Self-Insurance, No-Fault Insurance and Workers’ Compensation (NGHP) per Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007. The summaries cover October 2008 to the present. The document is indexed by program date and is searchable.
Additional information on the teleconferences is available from the CMS website.
