Resolving Medicare and Medicaid Liens in Personal Injury Cases - - PowerPoint PPT Presentation

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.

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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, OCTOBER 21, 2015

Nick D’Aquilla, Special Counsel, Garretson Resolution Group, New Orleans Andrew D. Myers, Attorney, Law Offices of Andrew D. Myers, North Andover, Mass.

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet connection.

If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your

screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's

program.

• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

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

• Name
• Address
• Phone Number
• Claim Number (HICN)
• Gender
• Date of Birth

Case Information

• Date of Injury
• Brief description of alleged

injury or illness, or harm

• Type of claim

11

Include:

Representative Information:

• Attorney name, address, and phone number
• Copy of Contingent Fee Agreement

12

Resolution Process

2.

Receipt of Rights and Responsibilities Letter

• 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
• f 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

Practical Tips – Identification/Start Early

• Medicaid Managed Care
• All but 3 states utilize MMC
• Approximately 70 – 75% of beneficiaries are enrolled
• Intake process and discovery is key
• Contact your state Medicaid agency for information on active MMC plans
• Request the names of all MMC plans
• MMC plans generally stand in the shoes of Medicaid agency (statute is key)
• Start Early
• Identify whether your client/the plaintiff is a Medicaid beneficiary
• Open a record with the appropriate agency and comply with any notice requirements
• Have a standard operating procedure to move data and correspondence with the agency
• Avoid settlement delays later

30

Practical Tips – Notice Requirements

• Notice requirement generally placed on the plaintiff-beneficiary and his or her counsel
• Notice at the time of filing suit
• Service according to civil procedure rules
• Informal notice
• Notice required at a defined point in time prior to any compromise or settlement of claim
• Reporting requirement placed on defendant(s)
• Penalties for failure to notify (full reimbursement)
• Practical application
• Dependent on the individual state’s statutory scheme

31

Practical Tips – Audit, Dispute, Offsets

• Establish and utilize an audit protocol for deciphering related v. unrelated healthcare charges
• Audit lien amounts from receipt of the initial claims listing “lien” and continuously thereafter
• Have staff trained in billing & coding or medical record review or consult an expert
• Transition from ICD-9 to ICD-10 on October 1, 2015
• Establish and utilize a dispute protocol to negotiate out any unrelated healthcare charges
• Depending on the state, the formality of this process will vary
• Be mindful of financial hardship waivers or other administrative remedies
• Efficacy will depend on the state (aggressive vs. passive/overburdened)
• Determine whether your state statute allows for an offset of attorney’s fees
• Make the argument regardless of statutory silence or language to the contrary

32

Practical Tips – Ahlborn/Wos Lever

• Don’t forget that Ahlborn and Wos can be used as a lever
• Medicaid agencies have no right to recover lien amounts from any portion of a beneficiary’s settlement

not attributable to payment for past medical expenses

• Keep overly aggressive agencies or plans at bay
• The Congressional abolitions are delayed until 2017
• Address allocation issues prior to settlement
• Request that the agency or plan participate in the settlement negotiations
• Have the parties stipulate to an allocation and have the trial court approve the figures
• Support your allocations with substantive information or expert opinions
• Noncompliance with Ahlborn/Wos does not make an entire statute void

33

Practical Tips – Benefit Protection

• Asset threshold prohibitions subject settling Medicaid beneficiaries to extra considerations
• Cannot take constructive control of proceeds
• Special Needs Trust (SNT)
• Qualified Settlement Fund (QSF)
• State by state consideration
• Ethical considerations of counsel to protect client property

34

Practical Tips – Summary

• Identify Medicaid beneficiaries through intake procedures or discovery
• Start addressing Medicaid considerations early and avoid delays later
• Comply with statutory notice or reporting requirements
• Establish and utilize audit, dispute, and negotiation protocols
• Remember Ahlborn & Wos
• Protect the beneficiary’s benefits
• Know your state agency’s process and operating procedures

35

Contact Information

Nick D’Aquilla, Special Counsel • Garretson Resolution Group • New Orleans, LA ndaquilla@garretsongroup.com 504.487.0860

36