MANDATORY INSURER REPORTING IS PLAINTIFF RECEIVING MEDICARE BENEFITS - - PowerPoint PPT Presentation

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MANDATORY INSURER REPORTING IS PLAINTIFF RECEIVING MEDICARE BENEFITS - - PowerPoint PPT Presentation

Dec 31, 2022 278 likes •602 views

MEDICARE SECONDARY PAYER ACT MANDATORY INSURER REPORTING IS PLAINTIFF RECEIVING MEDICARE BENEFITS IS PLAINTIFF MEDICARE ELIGIBLE IS PLAINTIFF REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 3O MONTHS IS SETTLEMENT OVER

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SLIDE 1

MEDICARE SECONDARY PAYER ACT MANDATORY INSURER REPORTING

  • IS PLAINTIFF RECEIVING MEDICARE BENEFITS
  • IS PLAINTIFF MEDICARE ELIGIBLE
  • IS PLAINTIFF REASONABLY EXPECTED TO

BECOME MEDICARE ELIGIBLE WITHIN 3O MONTHS

  • IS SETTLEMENT OVER $25,000 AND PLAINTIFF IS

MEDICARE ELIGIBLE

  • IS SETTLEMENT OVER $250,000 AND PLAINTIFF

REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 30 MONTHS

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SLIDE 2

MEDICARE - MANDATORY INSURER REPORTING

  • IS PLAINTIFF 65 YEARS OR OLDER
  • IS PLAINTIFF ON SSDI BUT NOT MEDICARE ELIGIBLE
  • HAS PLAINTIFF APPLIED FOR SSDI BENEFITS, BEEN DENIED

OR IS APPEALING

  • IS PLAINTIFF 62 ½ OR OLDER
  • HAS PLAINTIFF BEEN RECEIVING SSDI BENEFITS FOR 24

MONTHS OR LONGER

  • IS PLAINTIFF SUFFERING FROM END-STAGE RENAL DISEASE
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SLIDE 3

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

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SLIDE 4

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

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SLIDE 5

MEDICARE LIENS

NO FORMAL NOTICE REQUIREMENTS ENFORECEABLE AGAINST:

  • INJURED PARTY
  • INJURED PARTY’S ATTORNEY
  • TORTEASOR
  • TORTFEASOR’S INSURANCE CARRIER
  • UNINSURED MOTORIST CARRIER
  • MEDICAL PAYMENTS CARRIER

NOT SUBJECT TO FULL COMPENSATION DOCTRINE

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SLIDE 6

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR

DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION

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SLIDE 7

APPORTIONMENT - ZURICH AMERICAN V. HEARD 321 Ga. App. 325; 740 S.E.2d 429

51-12-33. (a) Where an action is brought against one or more persons for injury to. . . . (b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a)

  • f this Code section, if any, apportion its award of damages among

the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

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SLIDE 8

APPORTIONMENT

51-12-32. (a) Except as provided in Code Section 51-12-33, where a tortious (a) Except as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property

  • r for wrongful death and release therefrom.

(b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution. (c) Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom...

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SLIDE 9

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER

NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS

AT START OF MEDIATION

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SLIDE 10

MEDICAID LIENS - O.C.G.A. § 49-4-149

  • DEPARTMENT OF COMMUNITY HEALTH - LIEN FOR PAYMENT

OF MEDICAL CARE AND TREATMENT PROVIDED TO MEDICAID RECIPIENT

  • LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT

RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER

  • PERFECT LIEN BY COMPLYING WITH O.C.G.A §§ 44-14-470

THROUGH 44-14-473

  • FILE WITHIN ONE YEAR FROM LAST DATE OF TREATMENT
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SLIDE 11

MEDICAID LIENS - O.C.G.A. § 49-4-149

  • FILE IN COUNTY WHERE RECIPIENT RESIDES AND IN FULTON

COUNTY

  • SHALL NOT AFFECT PRIORITY OF ATTORNEY’S LIENS
  • SUBROGATED TO REASONABLE VALUE OF MEDICAL

ASSISTANCE PROVIDED AFTER WRITTEN NOTICE OF LIEN

  • SUBROGATION RIGHT ATTACHES WHEN SERVICES

PROVIDED

  • SUBROGATION ACTION MUST BE BROUGHT WITHIN ONE

YEAR OF LIABILITY BEING FINALLY DETERMINED

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SLIDE 12

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT

LOWER NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF

MEDIATION

  • PARTY HAS NOT PROVIDED IMPORTANT

INFORMATION OR IS NOT WILLING TO REVEAL IT

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SLIDE 13

MEDICAL LIENS - §§ 44-14-470-476

  • HOSPITALS; NURSING HOMES; PHYSICIANS; TRAUMATIC

BURN CARE FACILITITY (>$50,000)

  • LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT

RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER

  • NOT LESS THAN 15 DAYS BEFORE FILING LIEN PROVIDE

WRITTEN NOTICE TO PATIENT, THIRD PARTY TORTFEASOR AND THEIR INSURERS – FIRST-CLASS AND CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED

  • FILE LIEN NOTICE IN COUNTY WHERE SERVICES PROVIDED

AND IN COUNTY WHERE PATIENT RESIDES

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SLIDE 14

MEDICAL LIENS - §§ 44-14-470-476

  • LIEN NOTICE FILED WITHIN 75 DAYS OF DISCHARGE FROM

HOSPITAL, NURSING HOME OR TRAUMATIC BURN FACILITY

  • LIEN NOTICE FILED WITHIN 90 DAYS OF FIRST TREATMENT BY

PHYSICIAN

  • IMPROPER PERFECTION OF LIEN INVALIDATES LIEN EXCEPT TO

THOSE WHO RECEIVE ACTUAL NOTICE OF LIEN BY RELIABLE FORMS OF DELIVERY BEFORE SETTLEMENT

  • CAN ENFORCE LIEN AGAINST TORTFEASOR OR INSURER WITH

ACTUAL OR CONSTRUCTIVE KNOWLEDGE

  • MUST BRING ACTION WITHIN ONE YEAR OF FINAL

DETERMINATION OF LIABILITY

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SLIDE 15

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT

LOWER NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF

MEDIATION

  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT

WILLING TO REVEAL IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE

EARLY IN THE MEDIATION

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SLIDE 16

RIGHT OF REIMBURSEMENT – O.C.G.A. § 33-24-56.1 HEALTH AND DISABILITY INSURANCE

  • MAY RECOVER FROM INJURED PARTY IF THE AMOUNT OF THE

RECOVERY EXCEEDS THE SUM OF ALL ECONOMIC AND NONECONOMIC LOSSES INCURRED AS A RESULT OF THE INJURY, EXCLUSIVE OF LOSSES FOR WHICH REIMBURSEMENT MAY BE SOUGHT UNDER THIS CODE SECTION

  • A DECLARATORY JUDGMENT ACTION CAN BE FILED FOR COURT

TO DETERMINE WHETHER FULLY COMPENSATED

  • INJURED PARTY MUST PROVIDE NOTICE BY RELIABLE METHODS

TO BENEFITS PROVIDER NO LESS THAN 10 DAYS BEFORE CONSUMMATION OF SETTLEMENT OR TRIAL

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SLIDE 17

RIGHT OF REIMBURSEMENT – O.C.G.A. § 33-24-56.1

  • IF PROVIDE NOTICE, BENEFITS PROVIDER CAN ONLY

ASSERT REIMBURSEMENT RIGHTS IF IT HAS PROVIDED NOTICE BY RELIABLE METHODS TO INJURED PARTY OF ITS CLAIM FOR REIMBURSEMENT

  • IF NOTICE NOT PROVIDED BY INJURED PARTY, BENEFITS

PROVIDER NOT SUBJECT TO PRIOR NOTICE REQUIREMENT

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SLIDE 18

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT

LOWER NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF

MEDIATION

  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT

WILLING TO REVEAL IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE

MEDIATION

  • ONE OF THE PARTIES IS MAKING UNREASONABLE

MOVES WHICH POTENTIALLY COULD END THE MEDIATION

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SLIDE 19

ERISA LIEN

  • FEDERAL PREEMPTION
  • INSURED HEALTH PLAN VS. SELF-FUNDED HEALTH PLAN
  • PLAN MUST SPECIFICALLY PROVIDE FOR REIMBURSEMENT FROM

SETTLEMENT OR VERDICT PROCEEDS – SPECIFIC-FUND DOCTRINE

  • REIMBURSEMENT LIMITED TO AMOUNT PAID FOR INJURY-RELATED CARE
  • FOR REIMBURSEMENT, PLAN MUST SPECIFICALLY PROVIDE THAT MADE

WHOLE DOCTRINE DOES NOT APPLY

  • DEPENDING UPON LANGUAGE OF PLAN, INJURED PARTY’S ATTORNEY’ S

FEES MAY OR MAY NOT BE FACTORED IN

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SLIDE 20

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER

NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF

MEDIATION

  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING

TO REVEAL IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE

MEDIATION

  • ONE OF THE PARTIES IS MAKING UNREASONABLE MOVES WHICH

POTENTIALLY COULD END THE MEDIATION

  • DEFENDANTS HAVE UNDER-VALUED CASE
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SLIDE 21

LIEN ASSIGNMENTS

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SLIDE 22
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SLIDE 23
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SLIDE 24

ASSIGNMENTS – SANTIAGO V. SAFEWAY 196 Ga. App. 480; 396 S.E.2d 506

“ A debtor

  • f

the assignor, who has notice

  • f

the assignment, pays the debt to the assignor … at his own

  • peril. ‘It is the established rule in the United States that an

assignment for a valuable consideration, with notice to the debtor, imposes on him an equitable and moral obligation to pay the assignee.’ Here, Safeway had notice of the assignment but nevertheless paid all benefits to the insured rather than the assignee, Dr. Santiago. Thus, Safeway is liable to the assignee and Dr. Santiago is entitled to partial summary judgment.

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SLIDE 25

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER

NUMBER THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF

MEDIATION

  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING

TO REVEAL IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE

MEDIATION

  • DEFENDANTS HAVE UNDER-VALUED CASE
  • FIND OUT THAT TRUE DECISION MAKER OR SIGNIFICANT

INFLUENCE NOT PRESENT

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SLIDE 26

CHILD SUPPORT LIEN – O.C.G.A. § 19-11-18

  • CHILD SUPPORT RECOVERY ACT – DIVISION OF CHILD SUPPORT

SERVICES

  • LIEN FOR UNPAID CHILD SUPPORT
  • APPLIES TO PAST DUE CHILD SUPPORT AND ACCRUING CHILD

SUPPORT

  • UPON PROPER RECORDATION OR REGISTRATION, LIEN SHALL

ENBUMBER ALL TANGIBLE AND INTANGIBLE PROPERTY, WHETHER REAL OR PERSONAL, AND ANY INTEREST IN PROPERTY, WHETHER LEGAL OR EQUITABLE, BELONGING TO THE OBLIGOR.

  • LIEN APPLIES TO ANY PROPERTY INTEREST ACQUIRED BY

OBLIGOR AFTER THE CHILD SUPPORT LIEN ARISES.

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SLIDE 27

CHILD SUPPORT LIEN – O.C.G.A. § 19-11-18

  • NOTICE OF LIEN PROVIDED TO OBLIGOR BY FIRST CLASS MAIL, AT

LEAST ONCE A YEAR.

  • IF PROPER NOTICE HAS BEEN PROVIDED TO OBLIGOR AND CHILD

SUPPORT REMAINS UNPAID, DEMAND CAN BE MADE UPON ANY PERSON OR ENTITY IN POSSESSION OF PROPERTY SUBJECT TO THE LIEN TO TURN OVER POSSESSION OF THE PROPERTY TO THE DCSS.

  • IF PROPERTY NOT TURNED OVER TO DCSS, SUBJECT TO PAYING

THE AMOUNT OF PROPERTY HELD, TO EXTENT OF UNPAID CHILD SUPPORT, PLUS COSTS AND INTEREST.

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SLIDE 28

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER

THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION
  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL

IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION
  • ONE OF THE PARTIES IS MAKING UNREASONABLE MOVES WHICH POTENTIALLY

COULD END THE MEDIATION

  • DEFENDANTS HAVE UNDER-VALUED CASE
  • FIND OUT THAT TRUE DECISION MAKER OR SIGNIFICANT INFLUENCE NOT PRESENT
  • SPOUSE PLAINTIFFS HAVE DIFFERENT VIEWS OF CASE
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SLIDE 29

LAWSUIT LOANS

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SLIDE 30
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SLIDE 31

WHAT DO YOU DO?

  • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER

THAN PRE-MEDIATION

  • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION
  • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL

IT

  • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION
  • DEFENDANTS HAVE UNDER-VALUED CASE
  • FIND OUT THAT TRUE DECISION MAKER OR SIGNIFICANT INFLUENCE NOT PRESENT
  • SPOUSE PLAINTIFFS HAVE DIFFERENT VIEWS OF CASE
  • CLAIM BY INSURED AGAINST THEIR UNINSURED MOTORIST

CARRIER