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 Name Address Phone Number Claim Number (HICN) Gender Date of Birth Date of Injury Case Information 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 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
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