Presenting a live 90-minute webinar with interactive Q&A Resolving Medicare and Medicaid Liens in Personal Injury Cases Negotiating Healthcare Liens or Claims for Reimbursement, Maximizing Settlement Awards WEDNESDAY, OCTOBER 21, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Nick D’Aquilla , Special Counsel, Garretson Resolution Group , New Orleans Andrew D. Myers, Attorney, Law Offices of Andrew D. Myers , North Andover, Mass. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800- 926-7926 ext. 10 .
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PART I. NEGOTIATING MEDICARE LIENS October 21, 2015 Attorney Andrew D. Myers Law Offices of Andrew D. Myers Massachusetts - New Hampshire
Reporting of Claim • All settlements, judgements, awards or other payments resolving medical for a Medicare Beneficiary claimant must be reported. 42 USC 1395y (b)(8) and 42 C.F.R. § 411.25 • Reported by Payer- not Claimant or Plaintiff • Failure to give timely notice to Medicare of a settlement exposes violator to civil liability of $1,000 for each day of noncompliance with respect to each claimant. 42 U.S.C. 1395y(b)(8)(E)(i) 6
Who is entitled to Medicare? • 65 years of age or older • Disabled • Entitled to DDS for 24 months • Child or adult with permanent Kidney failure • Lou Gehrig’s Disease 7
Conditional Payments • Medicare has the right to recover any conditional payment made against settlement proceeds of a tort case such as third party liability case or Workers Compensation claim • Called “Conditional Payment” because Medicare pays the medical bill on condition or recoupment if another source is available. 8
Super Lien • CMS has broad powers to collect • Payment recouped from date of loss through date of settlement 9
Resolution Process 1. Contact Benefits Coordination & Recovery Center (B.C.R.C.) Benefits Coordination and Recovery Center P.O. Box 138832 Oklahoma City, OK 73113 10
Include: Beneficiary Information Case • Name Information • Address • Date of Injury • Phone Number • Brief description of alleged injury or illness, or harm • Claim Number (HICN) • Type of claim • Gender • Date of Birth 11
Include: Representative Information: • Attorney name, address, and phone number • Copy of Contingent Fee Agreement 12
Resolution Process Receipt of Rights and Responsibilities Letter 2. • Outlines Process • Correspondence Cover Sheet 13
Resolution Process 3. Receipt of Conditional Payment Letter • Includes full itemization of all medical charges • Amount of Charge • Payment Amount: “Conditional Payment” Review each line item with client: • Unrelated Charges • Duplicate Charges 14
Resolution Process 4. Contact BCRC with proposed deletions BCRC FAX: (405) 869-3309 • Use Correspondence Cover Sheet • Cross out items [do not highlight] • Explain proposed removal of items 15
Resolution Process 5. Notify BCRC of Settlement Immediately Final Settlement Detail Document: • Total Amount of Settlement • Total Amount of Med-Pay or PIP • Attorney Fee Amount • Costs- Procurement Expenses • Date Case Settled 16
Resolution Process 6. Never let the Insurance Company put Medicare on Settlement Check Never Mail Settlement Check to BCRC/ Medicare for Endorsement 17
Resolution Process 7. Receipt of Final Demand 3 Choices: • Pay • Appeal • Request Waiver 18
Medicare Trumps State Law & Court Apportionments • Taransky v. Secretary, HHS July, 2014. Third Circuit Court of Appeals 19
Medicare Set Asides • If a settlement exceeds $25,000 and the claimant is currently eligible for Medicare • If settlement is for more than $250,000 and Plaintiff can be expected to be eligible for Medicare in the next 30 months. 20
How Calculated: • Gauged by past medical treatment, current medical condition & probability of future needs • Covers only those medical expenses Medicare would pay • Submitted to Medicare in Workers Compensation Cases- Medicare not bound by parties’ allocations in private settlements 21
Overview • At initial client intake obtain information about Medicare, Medicaid, and all potential other sources of payment including insurance. • Notify client early in process of repayment obligation • Start Medicare Lien resolution process early 22
Thank You Attorney Andrew D. Myers Law Offices of Andrew D. Myers Massachusetts - New Hampshire andrew@attorney-myers.com 23
Resolving Medicaid Liens in Personal Injury Settlements – An Update and Practical Tips October 21, 2015 NICK D’AQUILLA, SPECIAL COUNSEL • GARRETSON RESOLUTION GROUP • NEW ORLEANS, LA
Medicaid 101 • Companion program to Medicare est. in 1965 • Means-based eligibility • Unique cooperative between states and federal gov. • Programs implemented at state level • An average of approximately 72 million beneficiaries 25
Medicaid Liens 101 • Federal statutes require states to implement recovery “lien” laws • See, 42 U.S.C. § 1396a et seq. • 50+ implementing frameworks (50 states & 3 territories) • Anti-lien statute prohibits Medicaid liens on the personal property of a beneficiary prior to death • See, 42 U.S.C. § 1396p(a)(1)(A) • Ahlborn and Wos 26
Supreme Court Decisions in Ahlborn and Wos Shape Medicaid Lien Implementation • Ahlborn • Arkansas Dept. of Health and Human Services v. Ahlborn , 547 U.S. 268 (2006) • A beneficiary’s settlement proceeds are considered his or her property • The anti-lien statute prohibits Medicaid liens on any portion of a settlement not attributable to past medical expenses • Lump sum settlements? • Wos • Wos v. E.M.A. , 133 S.Ct. 1391 (2013) • States must have non- arbitrary mechanisms for determining which portion of a beneficiary’s lump sum settlement is attributable to payment for past medical expenses • Statutory allocation scheme must be reasonable in “the mine run of cases” 27
Medicaid Liens 101 Cont’d • Ahlborn and Wos • State Medicaid programs cannot recover lien amounts from any portion of a beneficiary’s settlement not attributable to past medical care, and states must establish non-arbitrary mechanisms for determining settlement dollars comprising past medical care when the parties do not • 2013 Bipartisan Budget Act • Congressional override of Ahlborn and Wos: creates a Medicaid “super lien” and allows state Medicaid agencies to create state laws effective Oct. 1, 2015 to recover from the entire amount of a beneficiary’s settlement, not just the portion attributable to past medical expenses • Protecting Access to Medicare Act of 2014 • Delayed the implementation of the Medicaid super lien provision until October 1, 2016 • Medicare Access and CHIP Reauthorization Act of 2015 • Delayed the implementation of the Medicaid super lien provision until October 1, 2017 28
Practical Tips – Identification • Identify Medicaid beneficiaries at case intake or through the discovery process • Who is eligible (generally)? Low income and: • Receive SSI benefits • Disabled • A parent of a child under age 19 • A child under age 19 • Pregnant • Have no insurance but need treatment for breast or cervical cancer • Receive Medicare coverage • Section 1115 waiver program • Childless adult in an ACA expansion state 29
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