Ethical Considerations for Handling Liens and Dealing with the Shifting Sands of Medicare Set-Aside Accounts Sylvius von Saucken John V. Cattie, Jr. Garretson Firm Resolution Group South Carolina Injured Workers’ Advocates November 6, 2009 Asheville, NC
One More Thing To Worry About … � Medicare in 2003 � MMA � Medicare in 2006 � Changes in MSPRC � Medicare Part D � Medicaid in 2006 � Ahlborn Decision � ERISA – 2006/07 � Sereboff ; Wal-Mart Case � Medicare in 2009 � MMSEA, HR 2641 � SSDI Offsets � Tricare; VA; DOD, HMOs
Statistics – How Many are Impacted? • Statistics – How many cases does this issue Medicare, 14% Other, 16% impact? � 44 million Americans (14%) are on Medicare Medicaid, 13% � 40 million Americans (13%) are on Medicaid � 175 million Americans (57%) are on Private Plans, including ERISA Plans Private Health Insurance, 57%
Compliance – What is required of counsel? Historically, the affirmative obligations have been focused on plaintiff’s counsel….. That is changing.
Compliance – What is required of counsel? � Compliance (federal and state statutes as well as ABA Model Rules of Professional Medicare Responsibility) – What is • According to 42 U.S.C. required of plaintiffs’ § 1395y(b)), when a Medicare counsel? beneficiary retains an attorney to represent � Medicare & Medicaid him/her in a liability case, it is the attorney's responsibility to notify the � Other federally funded Medicare Coordination of healthcare plans Benefits Contractor – Veterans Administration (COBC). (“VA”) – TRICARE – Department of Defense � Private / ERISA health insurance plans
Compliance – What is required of counsel? � Compliance (federal and state statutes as well as Medicaid ABA Model Rules of • example is OH § 5101.58 (c) – (e) prior to initiation of action when medical expenses have been Professional received; disclose to county and to state dept.; Medicare Responsibility) – What is settlement/judgment not final until notice • According to 42 U.S.C. given; required of plaintiffs’ § 1395y(b)), when a Medicare • "(C) A recipient or participant, and the recipient's or counsel? participant's attorney, if any, shall cooperate with the beneficiary retains an departments. In furtherance of this requirement, the attorney to represent � Medicare & Medicaid recipient or participant, or the recipient's or him/her in a liability case, participant's attorney, if any, shall, not it is the attorney's later than thirty days after initiating responsibility to notify the informal recovery activity or filing a legal � Other federally funded Medicare Coordination of recovery action against a third party, healthcare plans provide written notice of the activity or action to the Benefits Contractor appropriate department or departments as follows: – Veterans Administration (COBC). •(1) To only the department of job and family (“VA”) services when medical assistance under medicaid – TRICARE has been paid; – Department of Defense •(2) To the department of job and family services and the appropriate county department of job and family services when medical assistance under the disability medical assistance program has been � Private / ERISA health paid. insurance plans
Compliance – What is required of counsel? � Compliance (federal and state statutes as well as Medicaid Medicaid (continued) ABA Model Rules of • example is OH § 5101.58 (c) – (e) prior to initiation • (D) The written notice that must be given under of action when medical expenses have been Professional division (C) of this section shall disclose the received; disclose to county and to state dept.; Medicare identity and address of any third party against Responsibility) – What is settlement/judgment not final until notice whom the recipient or participant has or may have • According to 42 U.S.C. given; required of plaintiffs’ a right of recovery. § 1395y(b)), when a Medicare • "(C) A recipient or participant, and the recipient's or • (E) No settlement, compromise, judgment, or counsel? participant's attorney, if any, shall cooperate with the beneficiary retains an award or any recovery in any action or claim by a departments. In furtherance of this requirement, the attorney to represent � Medicare & Medicaid recipient or participant, or the recipient's or recipient or participant where the departments him/her in a liability case, have a right of recovery shall be made final participant's attorney, if any, shall, not it is the attorney's without first giving the appropriate departments later than thirty days after initiating responsibility to notify the written notice as described in division (C) of this informal recovery activity or filing a legal � Other federally funded section and a reasonable opportunity to perfect Medicare Coordination of recovery action against a third party, healthcare plans provide written notice of the activity or action to the their rights of recovery. If the departments Benefits Contractor appropriate department or departments as follows: – Veterans Administration (COBC). are not given the appropriate written notice , the recipient or participant and, if there is •(1) To only the department of job and family (“VA”) services when medical assistance under medicaid one, the recipient's or participant's attorney, – TRICARE has been paid; are liable to reimburse the departments – Department of Defense •(2) To the department of job and family services for the recovery received to the extent of medical and the appropriate county department of job and payments made by the departments." family services when medical assistance under the disability medical assistance program has been � Private / ERISA health paid. insurance plans
Compliance – What is required of counsel? � Compliance (federal and Veterans Administration state statutes as well as 38 CFR § 17.1007 Independent right of recovery. Medicaid Medicaid (continued) ABA Model Rules of • (a) VA has the right to recover its payment under this • example is OH § 5101.58 (c) – (e) prior to initiation • (D) The written notice that must be given under section when, and to the extent that, a third party of action when medical expenses have been Professional division (C) of this section shall disclose the makes payment for all or part of the same emergency received; disclose to county and to state dept.; Medicare identity and address of any third party against treatment for which VA reimbursed or made payment Responsibility) – What is settlement/judgment not final until notice under this section. whom the recipient or participant has or may have • According to 42 U.S.C. given; required of plaintiffs’ a right of recovery. • (1) Under 38 U.S.C. 1725(d)(4), the veteran (or § 1395y(b)), when a Medicare • "(C) A recipient or participant, and the recipient's or • (E) No settlement, compromise, judgment, or the veteran’s personal representative, counsel? participant's attorney, if any, shall cooperate with the beneficiary retains an successor, dependents, or survivors) or claimant award or any recovery in any action or claim by a departments. In furtherance of this requirement, the attorney to represent � Medicare & Medicaid shall ensure that the Secretary is promptly recipient or participant where the departments recipient or participant, or the recipient's or him/her in a liability case, have a right of recovery shall be made final notified of any payment received from any participant's attorney, if any, shall, not it is the attorney's without first giving the appropriate departments third party for emergency treatment later than thirty days after initiating responsibility to notify the written notice as described in division (C) of this furnished to the veteran. The veteran (or the informal recovery activity or filing a legal � Other federally funded section and a reasonable opportunity to perfect veteran’s personal representative, successor, Medicare Coordination of recovery action against a third party, healthcare plans dependents, or survivors) or claimant shall provide written notice of the activity or action to the their rights of recovery. If the departments Benefits Contractor immediately forward all documents relating to appropriate department or departments as follows: – Veterans Administration (COBC). are not given the appropriate written such payment, cooperate with the Secretary in notice , the recipient or participant and, if there is •(1) To only the department of job and family (“VA”) the investigation of such payment and assist the services when medical assistance under medicaid Secretary in enforcing the United States’ right to one, the recipient's or participant's attorney, – TRICARE has been paid; recover any payment made and accepted under are liable to reimburse the departments this section. The required notification and – Department of Defense •(2) To the department of job and family services for the recovery received to the extent of medical submission of documentation must be provided and the appropriate county department of job and payments made by the departments." by the veteran or claimant to the VA medical family services when medical assistance under the facility of jurisdiction within three working days of disability medical assistance program has been � Private / ERISA health receipt of notice of the duplicate payment. paid. insurance plans
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