Work-Accident -Compensation Accident Claim Work: Medicare Secondary Payer Act

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Selasa, 22 November 2011

The Doctrine of Equitable Allocation Not Applicable in a Medicare Secondary Payment Reimbursement Claim

The 6th Circuit Court of Appeals has ruled that The Center for Medicare and Medicaid Services (CMS) is entitle to complete reimbursement of Medicare payments under the Medicare Secondary Payer Act (MSP) from a liability claim even though the beneficiary claimed that the settlement required allocation due to the law allocating liability.

"We address only one of them here: specifically, under § 1395y(b)(2)(B)(ii) as amended, if a beneficiary makes a “claim against [a] primary plan[,]” and later receives a “payment” from the plan in return for a “release” as to that claim, then the plan is deemed “responsib [le]” for payment of the “items or services included in” the claim. Id. Consequently, the scope of the plan's “responsibility” for the beneficiary's medical expenses—and thus of his own obligation to reimburse Medicare-is ultimately defined by the scope of his own claim against the third party. That is true even if the beneficiary later “compromise[s]” as to the amount owed on the claim, and even if the third party never admits liability. And thus a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other."

Hadden v. U.S., --- F.3d ----, 2011 WL 5828931, C.A.6 (Ky.), 2011. Decided November 21, 2011.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Selasa, 24 Mei 2011

Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim

Following the guidelines of the CMS Management Memo entitled "Medicare Secondary Payer - Workers Compensation (WC) Information" dated May 7, 2004, and the interpretation of 42 CFR 411.37, a NJ Court granted an attorney the deduction of procurement costs from a Medicare Set-Aside Trust.

"This court's decision to apply 42 C.F.R. § 411.37 to funds obtained in a civil action and placed in a Medicare set aside is also in line with general principles of equity. Where a plaintiff is, or will within a short time become, a Medicare recipient, the plaintiff's attorney also works on behalf of Medicare to secure funds to pay future medical expenses Medicare would otherwise pay. To allow Medicare to avoid paying an equitable share of the procurement fees for a judgment or settlement amount, forcing the plaintiff to cover all the fees, would be unfair to plaintiffs. In some situations, a plaintiff may end up getting nothing after creating the set aside and paying attorneys' fees or may even have to pay money out of pocket to his attorney after a lengthy trial. Such a result would not only be inequitable, it would deter persons on Medicare who are injured by the tortious acts of others from bringing claims."

Hinsinger v. Showboat Atlantic City, L-3460-07, 2011 WL 1885980 (NJ Super Law Division 2011), decided May 19, 2011.

Sabtu, 04 September 2010

CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

The claim filed by the US government for reimbursement against multiple law firms and insurance companies has been scheduled for a hearing September 13, 2010 on the pending motions. The Federal government, who has claimed that the Statute of Limitation was tolled, is seeking reimbursement involving over 900 specific claims that were paid involving a liability action. The gross settlement was $275 Million for which payment was made in 2003.

The Centers for Medicare and Medicad Services (CMS) under the Medicare Secondary Payer Act has alleged that it was not reimbursed. The Government contends that the Statute of Limitations under 28 U.S.C.2415 is 6 years and not three years. Alternatively the Government has argued that the Statute f Limitations was tolled under 28 U.S,C, 2416(c), which permits tolling where a claim has accrued, but "facts material to the right of action are not known and reasonably could not be known" by the Government.

The attorneys and insurance companies contend that the Statute of Limitations is a valid defense since the the claim arose when the defendants were originally obligated under the settlement agreement to make payment. Travelers and AIG, as parent companies, claim that they are not proper parties to the case and should be removed as parties. The insurance companies, in a brief filed in June 2003, also allege that the bar to permitted the statute of limitation tolling should have been dropped under Federal statute. The stated in "....once the facts making up the 'very essence of the right of action' are reasonably knowable."

United States of America v. James J. Stricker, et al., Case No. 1:09-cv-02423-KOB (USDCT AL).

Amended Complaint Filed in CMS Recovery Action Against Law Firms

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For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational exposures.