MSP Attorneys’ Fees in New Jersey

Medicare Set-Aside Blog on June 12, 2012
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New Jersey remains on the forefront of attorneys’ fees determinations in conjunction with MSP compliance. You may recall the Hinsinger v. Showboat case last year supported the idea that 42 C.F.R. 411.37 permitted deduction of attorneys’ fees from MSA. Well last week, Director and Chief Judge Pete Calderone issued a memorandum to all New Jersey work comp judges and attorneys regarding attorneys’ fees in Medicare conditional payment recoveries. With regard to denied claims later found to be compensable and respondent is reimbursing CMS, it was determined that just because the recovery was Medicare related didn’t have any impact on petitioners’ attorney fees awarded under Section 64. The second question dealt with situations where the employer/insurer transferred Medicare reimbursements into Petitioner attorneys’ trust accounts from which the petitioner attorney would bear the responsibility of finalizing CMS reimbursement. Because the attorney may be entitled to a fee directly from the reimbursement from CMS, it was recognized that there was a benefit to petitioners’ attorneys handling the matter. The memo ends with the note that trial judges have discretion in setting the counsel allowance; therefore, it may ultimately be up to them to determine appropriate counsel allowance.

These questions and responses were presented for open and review and consideration; therefore, it is assumed that comments would be welcome. The full text of the memo can be found here.