Glenn B. Fair on TLV

Hello, Fellow Trial Lawyers!

In the latest episode of Trial Lawyer View, host Jason Lazarus speaks with Glenn Fair, whose military and law enforcement background profoundly influences his approach to personal injury law. Glenn discusses the discipline and leadership skills he brings to his practice, emphasizing the importance of connecting with clients and meeting their needs with care and support. He shares practical advice on trial preparation and handling difficult cases, drawing from his recent success with a $2.2 million verdict. He also explores how technology enhances his firm’s efficiency. Glenn’s insights offer valuable strategies for attorneys aiming to improve client advocacy and firm operations. With a focus on his learns from his life before becoming a lawyer, to outsourcing and using technology to its fullest, you will get some great tips. Including some key insights about voir dire.

Thanks for listening!

Jason D. Lazarus, Esq.

Achieving Total Medicare Compliance: Essential Steps for Personal Injury Lawyers

Navigating Medicare compliance is a critical task when handling personal injury settlements involving Medicare beneficiaries. Ensuring total compliance with the Medicare Secondary Payer Act (MSP) requires a strategic approach and thorough understanding of the law/regulations. This blog post is a basic guide for trial lawyers when it comes to Medicare Secondary Payer compliance.

Identifying and Reporting Medicare Beneficiaries

The first step in Medicare compliance is to identify clients who are current Medicare beneficiaries or those reasonably expected to become beneficiaries within 30 months. Implement a screening method to flag these cases within your firm. Once identified, contact Medicare and report the settlement to obtain a Conditional Payment letter and ultimately a Final Demand. Carefully audit the Conditional Payment Letter and use the compromise/waiver process to achieve further reductions post payment of the Final Demand. Additionally, identify and resolve any Part C/Medicare Advantage Organization (MAO) liens.

Release Language

Release language is a vital component in Medicare compliance. Avoid overbearing or irrelevant language that can negatively impact your client. For example, make sure that the release doesn’t take away specific rights related to their government benefits. Also, ensure the release does not make the settlement contingent on CMS approval or other requirements that have no legal basis.

Early Intervention and Collaboration

Start the compliance process early in your case. Confirm disability eligibility with Social Security and gather all relevant insurance and government assistance documentation. Collaborate with opposing counsel on the information reported under the Mandatory Insurer Reporting (MIR) requirements. Ensure proper ICD codes are included to avoid future Medicare claim rejections.

Advising Clients on Medicare Futures Implications – Education and Expert Consultation

When dealing with Medicare beneficiaries, it’s crucial to assess whether future medical expenses are being paid as part of the settlement. If so, then: Consult, Advise and Document.

Educate your clients about the impact of not setting aside funds for future Medicare-covered expenses. Proper documentation of all compliance steps is crucial. Consult with experts to navigate the complexities of the MSP, including lien identification, conditional payment resolution, MSA creation, and release language. Expert guidance is essential to avoid mistakes that could lead to client dissatisfaction or legal malpractice claims.

If clients opt out of creating a Medicare Set-Aside (MSA), ensure they acknowledge the implications in writing. For those who choose to create an MSA, work with specialized companies like Synergy to perform the analysis and document the process accurately.

Avoid Complications at Settlement

The key takeaway is to manage Medicare compliance issues proactively to avoid disputes that could land you in federal court. Ensure proper ICD codes are reported and evaluate the necessity of an MSA with your client. Collaborate with experts and consider the potential for using the MSA as a negotiation tool to enhance settlement value. Carefully word the release to protect your client’s interests and avoid inappropriate language.

Conclusion

By following these steps, you can achieve total Medicare compliance, safeguard your clients’ interests, and navigate the complexities of the MSP with confidence. Proper planning and expert consultation are paramount to ensuring a smooth settlement process and avoiding legal pitfalls.

Turn to Synergy for experts who can help create a Medicare compliance strategy for your firm to mitigate liability risks and protect clients. Inadequate compliance processes can result in financial liabilities and worse yet damage to your firm’s reputation. Having a Synergy expert perform a Medicare Expert Case Evaluation (MECE) helps you educate your client related to future potential denial of care and then document your file appropriately. Ensure your Medicare processes protect both your clients and your practice by partnering with Synergy for total Medicare compliance.

Written by: Jason D. Lazarus, J.D., LL.M., CSSC, MSCC

Using Contract Law to Combat an ERISA Health Insurance Lien on Your Settlement

Settling a personal injury case can be a moment of relief for both the plaintiff and their attorney. However, a significant hurdle often remains: resolving health insurance liens. These liens can significantly impact the final recovery amount for your client, making it crucial to address them effectively. This article focuses on ERISA plans and their policy documents related to liens.

Understanding Health Insurance Liens

When a plaintiff receives medical treatment for injuries related to a personal injury claim, their health insurance provider often pays the medical bills. In return, the insurer may have a lien interest in the amount of the medical expenses covered, providing a right to reimbursement from any settlement or judgment. This reimbursement claim, known as a health insurance lien, is based on the contractual and statutory rights of the insurer.

Steps to Resolving Health Insurance Liens

Identify and Notify All Potential Lienholders: Early in the case, identify all entities that may assert a lien. This includes health insurance companies, Medicare, Medicaid, and any other potential third-party payers. Notify these entities, in writing, of the pending litigation and request detailed lien information.
Review Plan Documents and Lien Claims: Carefully examine the insurance policy or plan documents to understand the basis and amount of the lien. Check for any errors or inaccuracies, and for relatedness in the lien claim. It’s also essential to scrutinize whether the lien is enforceable under federal or state law.
Negotiate the Lien Amount: Engage in negotiations with the lienholder. Highlight any equitable considerations, such as the extent of the damages, the plaintiff’s overall recovery, and the attorney’s fees and costs. Insurers should compromise on the lien amount when a persuasive argument is presented.
Utilize the Common Fund Doctrine: This doctrine can often reduce the lien amount by requiring the lienholder to share in the attorney’s fees and costs. The rationale is that the lienholder benefits from the attorney’s efforts to recover the settlement.
Document Everything: Keep meticulous records of all communications, negotiations, and agreements related to the lien. This documentation can be crucial if disputes arise later.

ERISA Liens

Plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) often have strong reimbursement rights. These plans, provided by private employers, can preempt state laws, making them particularly powerful. It is their policy language that controls the strength of their reimbursement right. The key issues include:

Federal vs. State Law: Self-funded ERISA plans can assert strong reimbursement rights that preempt state anti-subrogation laws, limiting the avenues for reduction or negotiation of the lien. Fully insured ERISA plans can also assert strong reimbursement rights even if those plans are indeed subject to state law. Some states allow a fully insured ERISA plan to override state law that would limit their reimbursement. Because of this, regardless of the funding status, obtaining all plan documents is crucial.
Plan Terms Interpretation: Courts often require strict adherence to the terms of the ERISA plan documents. The McCutchen case made this abundantly clear for self-funded ERISA plans. Understanding and interpreting these terms correctly is essential.

Right to Obtain the Plan Documents

Under ERISA, plan participants have specific rights to obtain plan documents from their plan administrators. These rights are crucial for participants to understand their benefits, how the plan operates, and their entitlements. Section 104(b)(4) of ERISA, codified as 29 U.S.C. § 1024(b)(4), outlines these rights.

The Plan Documents should be obtained directly from the Plan Administrator and not the insurance carrier or the subrogation vendor.

Written Request:
- Plan participants or beneficiaries can request copies of certain plan documents in writing from the plan administrator.
Types of Documents:
- Summary Plan Description (SPD): Provides a comprehensive overview of the plan, including benefits, rights, and obligations of participants.
- Summary of Material Modifications (SMM): Describes changes to the plan or the SPD.
- Annual Report (Form 5500): Contains financial information, plan operations, and compliance information.
- Plan Document: The formal written document that establishes the plan and its terms.
- Trust Agreement: If applicable, the document that sets up the trust to hold plan assets.
- Collective Bargaining Agreement: If the plan is subject to one, this document outlines the agreement between the employer and the union.
- Insurance Contract: For plans funded through insurance, the contract between the plan and the insurer.
Response Time
- Plan administrators are required to provide the requested documents within 30 days of receiving the written request.
Civil Penalties:
- If the plan administrator fails to comply with a request for documents within 30 days, they may be liable for a penalty of up to $110 per day (adjusted periodically for inflation) from the date of the failure to provide the documents.

Contract Law Principles and Strategies

Examine the Plan Language
- Ambiguities in the Plan Document: Carefully review the ERISA plan documents to identify any ambiguities in the reimbursement or subrogation clauses. Under the doctrine of contra proferentem, ambiguities in the contract are construed against the drafter. If the language is unclear, you may argue that it should be interpreted in favor of your client.
- Scope and Limits of Reimbursement: Ensure the plan’s reimbursement claim strictly adheres to the terms outlined in the plan document. Some plans may have specific provisions or limitations regarding the scope of their recovery rights.
Make Whole Doctrine
- Plan Language Examination: Assess whether the plan explicitly disclaims the “make whole” doctrine. If it does not, you can argue that the plan should only be reimbursed if and when your client has been fully compensated (made whole) for all their losses, including pain and suffering, lost wages, and future medical expenses.
- Equitable Arguments: Use the make whole doctrine to negotiate a reduction in the lien amount, arguing that the plaintiff has not been fully compensated for their total losses.
Common Fund Doctrine
- Attorney’s Fees and Costs: The common fund doctrine may require the ERISA plan to share in the attorney’s fees and costs incurred in obtaining the settlement. Argue that the plan’s recovery should be reduced proportionally to account for the legal expenses incurred in creating the settlement fund.
- Explicit Plan Language: Verify if the plan explicitly addresses the common fund doctrine. If the plan does not waive this doctrine, you can argue that it applies.
Analyze the Plan’s Equitable Lien by Agreement
- Equitable Lien Requirements: For an equitable lien by agreement to be enforceable, the plan must identify a specific fund (the settlement) and assert a right to a portion of that fund. Ensure the lien is tied to the settlement and not your client’s general assets.
- Constructive Trust: ERISA plans often seek a constructive trust on settlement funds. Argue that the plan’s right to recovery should be limited to specific funds clearly identified in the settlement agreement.
Proportional Allocation of Damages
- Detailed Settlement Allocation: Structure the settlement to allocate specific amounts to various categories of damages, such as medical expenses, pain and suffering, and lost wages. Argue that the ERISA lien should only apply to the portion allocated to medical expenses.
- Court Approval: Seek court approval of the settlement allocation to strengthen the argument against the ERISA lien’s applicability to non-medical portions of the settlement.
Equitable Relief
- Equitable Defenses: Use equitable defenses such as unjust enrichment, undue hardship, or the unclean hands doctrine to argue that full reimbursement would be inequitable under the circumstances, if applicable.
Negotiation and Settlement
- Negotiation Tactics: Engage in negotiations with the ERISA plan administrator, insurance carrier, subrogation vendor, etc., presenting all legal and equitable arguments to seek a reduction in the lien amount.

Conclusion

Combating an ERISA lien on a personal injury settlement requires a thorough understanding of both the specific plan language and applicable contract law principles. By carefully analyzing the plan documents, leveraging doctrines like make whole and common fund, and employing strategic negotiation tactics, personal injury attorneys can often reduce the impact of these liens on their clients’ recoveries. Effective use of these strategies not only maximizes the client’s net recovery but also ensures compliance with legal and ethical standards.

While a personal injury attorney may be able to resolve a lien on their own, it is more efficient and advantageous to engage Synergy for this specialized task. This allows attorneys to focus on other revenue generating cases, knowing that a team of lien experts are diligently working to achieve the best possible result for their client. Synergy’s expertise and hundreds of years of combined experience in handling ERISA liens ensure that the settlement process are preserved as much as possible, leading to optimal outcomes for the client.

Synergy is your lien resolution partner for all health insurance liens – ERISA, FEHBA, Military, Medicaid, Med Pay, Medicare, Hospital, Private and more. Partner with Synergy today to see what a difference it makes for the efficiency and profitability of your firm.

Written by: Teresa Kenyon | Vice President of Lien Resolution Services

When Is Medicare At Fault

Guest blog

When you visit a doctor, you expect a certain level of care. This comes from both the doctor and your health care coverage provider such as Medicare. Unfortunately, patients do not always receive the care they deserve, but when this happens, who is at fault? Is it the doctor’s office, or is it Medicare?

In some cases, one or the other fails to serve their patients properly. Sometimes it can even be both parties. As a medical malpractice lawyer can share, there are certain cases where it is difficult to determine fault, but a knowledgeable attorney can guide you through the process in order to get you the compensation you deserve.

A lawyer will examine all parties involved in your case, and they will be able to determine who was the at-fault party. Our friends at Cohen & Cohen are here to shed some light on examples of issues you might face from doctors versus Medicare so that you can be well-informed and prepared in case these incidents happen to you.

Discrimination

No kind of discrimination is tolerated within Medicare. This includes sex, gender, race, and more. At any time, if you believe this is what is happening to you, it is best to contact a lawyer for help. However, when it comes to discrimination it is most times at the level of your actual care provider and not your coverage provider. This means the doctors treating you are more likely to be at fault than Medicare. There are rare instances, however, where discrimination can occur within the Medicare system.

Privacy

You have a right for your medical records to be kept private unless you designate that they may be shared with another party. There might be a time when your records are shared without your consent. If your records are shared, this is a legal violation. It is Medicare’s duty to ensure the businesses they work with protect your information. If Medicare is found to have been negligent in this aspect, you may have a case. Oftentimes it is the actual doctor’s office that is at fault because they are the ones physically sharing the information, but if Medicare knew that a doctor had been sharing information and did nothing about it, this is where fault becomes tricky to establish.

Questions

A large part of Medicare is that you have the right to have your questions about the services rendered by Medicare answered. After all, if you do not know what is covered, then you may find yourself with a large hospital bill you were not planning on having. This scenario is extremely rare, but it can happen — and if you are directly asking the questions to Medicare and notice they are not answering you, then it is time to seek legal help.

In essence, you have a right to be treated fairly, have your privacy protected, and have all of your questions answered. These are a few of the basic premises upon which Medicare operates. If any of these are violated, it is time to seek an attorney. Even if you are not sure whether your issues stem from Medicare or your doctor, it is best to seek legal counsel to understand what your options are. Contact a lawyer near you today for more information.

Medicare Compliance: Reducing MSP Liability for your PI Firm

By Jason D. Lazarus, J.D., LL.M., MSCC

When representing a Medicare beneficiary, personal injury law firms should prioritize compliance with the Medicare Secondary Payer Act (MSP). Inadequate compliance processes can lead to severe consequences, including government actions against the firm. This blog post outlines the risks and best practices related to MSP compliance to safeguard both your firm and your clients.

Government Actions for Non-Compliance

The government’s enforcement of the MSPA is evident in several cases where personal injury law firms faced significant monetary liability for non-compliance:

Harrisburg, August 2020: A law firm paid $53,295 to resolve liability for non-repayment of Medicare conditional payments in a malpractice case against a pharmacy.

Philadelphia, January 2020: Another firm settled allegations of failure to reimburse Medicare by agreeing to pay $6,604.59, implementing compliance practices, and acknowledging potential liability under the False Claims Act.

Baltimore, November 2019: A law firm paid $91,406.98 to resolve allegations of failure to pay back Medicare, emphasizing that joint representation and referral cases must also comply. You can’t refer a case and be absolved of liability.

Maryland, March 2019: A firm settled for $250,000 due to reliance on an incorrect conditional payment letter rather than a final demand from Medicare.

Philadelphia, June 2018: A firm settled for $28k and agreed to initiate a compliance program as part of a settlement which was according to the US Attorney meant to remind attorneys of their obligation to reimburse Medicare.

These cases underscore the government’s commitment to bringing legal actions to recover Medicare dollars from personal injury law firms and holding attorneys accountable for non-compliance, regardless of the circumstances.

Best Practices for MSP Compliance

To navigate the complex regulatory landscape, personal injury law firms can adopt best practices for Medicare compliance. Firms should:

Identify Medicare Beneficiaries: Establish processes to determine if clients are Medicare beneficiaries early in the representation.

Understand Reporting Requirements: Make sure to appropriately report representation to Medicare and be aware of the medical information and ICD codes reported by defendant insurers under the Mandatory Insurer Reporting law (MIR) created by MMSEA.

Appropriate Release Language: Avoid agreeing to inaccurate or onerous Medicare compliance language in settlement documents prepared by the other side.

Resolve Conditional Payments: Ensure timely reporting and resolution of conditional payment obligations to avoid personal liability.

Utilize Compromise and Waiver Processes: Implement procedures to reclaim funds from Medicare when appropriate.

Educate Clients: Inform clients about Medicare compliance issues, especially regarding potential denial of future injury-related services.

Monitor Liens: Be vigilant about identifying and addressing all Medicare liens, including those from Medicare Part C lien holders.

Implementing a Compliance Strategy

Client education for those who are Medicare eligible is the cornerstone of a successful Medicare compliance strategy for law firms. Lawyers and their staff must be well-informed about MSP-related issues to identify potential problems before they escalate into malpractice claims or personal liability. Outsourcing to a strategic partner who has deep expertise in the Medicare Secondary Payer Act should also be considered. Developing a systematic approach to handle Medicare beneficiaries and related compliance concerns is essential for protecting both clients and the firm’s integrity.

Conclusion

The government’s enforcement of the Medicare Secondary Payer Act highlights the necessity for personal injury law firms to ensure MSP compliance thoroughly. Non-compliance can result in significant monetary consequences, personal liability, and damage to the firm’s reputation. By adopting best practices and ensuring thorough firm-wide processes, law firms can navigate the complexities of Medicare compliance, safeguarding their practice and serving their clients effectively.

Navigating the Uncharted Waters of Medicare Futures

By Jason D. Lazarus, J.D., LL.M., MSCC

Medicare’s clear as mud position on post-settlement care coverage in liability settlements poses significant challenges for personal injury attorneys. Understanding and addressing the potential denial of future injury-related care is crucial to safeguarding your clients’ future eligibility and ensuring compliance with the Medicare Secondary Payer Act (MSP). This blog post explores the unregulated frontier of Medicare futures and the critical steps law firms must take to navigate these complexities.

Medicare’s Potential Denial of Future Care

Personal injury settlements today come with a new, daunting reality: the threat of Medicare denying future care for injury-related conditions. This risk is automatically triggered by the Mandatory Insurer Reporting (MIR) system, which reports settlements over $750 along with specific injury-related ICD codes. Once a denial occurs, the appeal process is long and arduous, often spanning multiple levels of internal Medicare appeals and federal courts. This can be particularly devastating in catastrophic injury cases, where denied care severely impacts the victim’s quality of life.

Understanding the Risks and Liabilities

Historically, trial lawyers did not worry about Medicare’s payment for future care post-settlement. However, this landscape has changed dramatically. Consider a scenario where a Medicare beneficiary’s settlement triggers a denial of future care because the settlement included funds for future medical expenses. This reality was highlighted in 2018 when a personal injury victim received a denial notice from Medicare, stating that “you may have funds set aside from your settlement to pay for your future medical expenses and prescription drug treatment related to your injury(ies).” The denial was related to a 2014 personal injury settlement wherein the Medicare beneficiary was paid money as damages for future injury related care.

The Evolution of MSAs

For years, personal injury settlements did not consider Medicare’s secondary payer status, shifting the burden to Medicare for future care. This changed in 2001 when CMS introduced MSAs for Workers’ Compensation cases to prevent shifting the burden from primary payers to Medicare. This compliance tool ensures that settlement funds for future medical expenses are used before Medicare becomes the primary payer.

Addressing Medicare Compliance Related to Futures

There is no one-size-fits-all solution for Medicare compliance related to futures. Each case requires a thorough, individualized analysis. If future medical expenses are funded by the settlement, doing nothing is risky. A client facing a denial of care may endure a lengthy appeals process, deciding between paying out-of-pocket or delaying care.

For trial lawyers, the risk of malpractice claims looms if they fail to advise clients properly about setting aside funds. Though no cases have yet seen Medicare pursuing law firms for failing to establish Medicare Set-Asides (MSAs), recent Department of Justice actions on MSP compliance emphasize the importance of addressing Medicare related issues.

Fundamental Concepts Related to Set-Asides

Set-asides are only necessary when dealing with current Medicare beneficiaries or those expecting to become beneficiaries within 30 months. Although no statute or case law mandates MSAs, they are similar to special needs trusts used in Medicaid or SSI settlements. Clients should be educated about MSAs to protect future Medicare eligibility for injury-related care just like with SNTs. MSAs can also be used to strategically set a baseline for medical damages in negotiations.

Why Consider Setting Up an MSA?

Despite the absence of a legal requirement for MSAs, conducting a legal analysis to determine the necessity of setting aside funds is crucial. This issue primarily concerns plaintiffs, with the penalty for non-compliance being the potential loss of future Medicare coverage for injury-related care. CMS recommends establishing an MSA to protect future Medicare eligibility, ensuring Medicare becomes the primary payer once the MSA is exhausted.

Conclusion

Medicare beneficiaries who attempt to shift the burden of future injury-related care to Medicare after a settlement may face denial of coverage. Medicare interprets the MSP Act as requiring consideration of their future interests. While set-asides are not legally mandated, they are recommended by CMS to protect future Medicare eligibility. Failure to address this issue can result in denied care and significant complications for clients and attorneys alike.

James Swartz on TLV

Hello, Fellow Trial Lawyers!

In the latest episode of Trial Lawyer View, host Jason Lazarus speaks with James Swartz from Swartz & Swartz, delving into his pivotal role as a consumer advocate and founder of World Against Toys Causing Harm (WATCH). James emphasizes the crucial message that consumers should not assume toys are safe simply because they are on store shelves. He passionately highlights the overarching issue of manufacturers prioritizing marketing over safety, underscoring the need for stringent regulations and robust testing standards to prevent hazards like design flaws and inadequate warnings which harm children. Drawing from his extensive litigation experience, James shares some impactful examples of how litigation has spurred significant changes in product design and regulatory practices, ensuring accountability and advocating for safer consumer products. He highlights two cases, one involving the drowning of a child and another case where a child became entrapped by a container, where his legal tactics resulted in significant results for his clients.

Tune in to gain valuable insights from James Swartz’s extensive experience related to child consumer safety.

Thanks for listening!

Jason D. Lazarus, Esq.

Navigating the Maze: Understanding Medicare Compliance in Personal Injury Settlements

By Jason D. Lazarus, J.D., LL.M., MSCC

Representing Medicare-eligible clients in personal injury cases introduces a layer of complexity since it requires compliance with the Medicare Secondary Payer Act (MSP). As trial lawyers, your duty extends beyond securing settlements; you must ensure clients are safeguarded against the potential pitfalls of non-compliance with MSP regulations. Before touching on compliance, it is first important to understand Medicare’s various components and their implications for the injured.

Medicare Program Overview

Medicare is divided into four parts:

Part A – Covers inpatient hospital and skilled nursing facility care.

Part B – Covers outpatient medical services, including physician visits and durable medical equipment.

Part D – Provides prescription drug coverage through private insurers.

Part C (Medicare Advantage Plans) – Offers an alternative, bundling Parts A, B, and D through private insurers.

Eligibility for Medicare typically begins at age 65 or after two years of receiving Social Security Disability Insurance (SSDI) benefits, crucial for many injury victims who qualify due to disability.

The Challenge of MSP Compliance

The MSP Act, established to curb federal healthcare costs, stipulates that Medicare acts as a secondary payer when other insurance (e.g., workers’ compensation, liability insurance and no-fault) is available. This secondary payer status necessitates careful navigation to ensure that Medicare’s interests are considered, particularly when dealing with conditional payments and future medical costs.

Navigating Conditional Payments and Medicare Set-Asides

Two primary issues arise related to MSP compliance:

Conditional Payments – Medicare payments made prior to settlement, which must be reimbursed/ addressed

Medicare Set-Asides (MSAs) – Future medical expenses that Medicare would otherwise cover.

The Medicare, Medicaid, and SCHIP Extension Act (MMSEA) of 2007 heightened the focus on MSP compliance by introducing the Section 111 Mandatory Insurer Reporting (MIR) requirements. Insurers must report the Medicare status of claimants, along with relevant details, to Centers for Medicare & Medicaid Services (CMS)upon settlement. Failure to comply by defendant Responsible Reporting Entities can result in significant penalties which is why you may experience hypervigilance with defense counsel related to Medicare.

Practical Challenges and Solutions

The advent of MIR has introduced challenges, such as ensuring the accurate reporting of medical diagnosis codes (ICD codes) and the correct date of accident. Errors in reporting these data points can lead to problems such as more complicated conditional payment resolution or potential future Medicare claims being denied. To mitigate these issues, trial lawyers should:

Work with opposing counsel to ensure accurate information is reported.

Only agree to precise release language that addresses MSP compliance without imposing unnecessary burdens on the injured party.

Stay informed and proactive in resolving conditional payments and considering MSAs where applicable.

Conclusion

Understanding and navigating Medicare compliance under the MSP Act is essential for trial lawyers. The complexities introduced by the MSP and MMSEA demand a thorough grasp of the regulations and a strategic approach to settlements involving Medicare beneficiaries. By doing so, lawyers can protect their clients’ interests and ensure compliance, avoiding the costly repercussions of non-compliance. Ensuring compliance not only protects clients but also shields the legal practice against potential liabilities. By acknowledging the complexities of MSP compliance and proactively addressing the associated challenges, trial lawyers can better serve their clients and navigate the maze of Medicare settlements with confidence.

Turn to Synergy for experts who can help create a Medicare compliance strategy for your firm to mitigate liability risks and protect clients. Inadequate compliance processes can result in financial liabilities and worse yet damage to your firm’s reputation. Ensure your Medicare processes protect both your clients and your practice by partnering with Synergy for total Medicare compliance. Learn more here.

Goodbye Chevron deference: What does this mean for Medicare Secondary Payer compliance?

By: Rasa Fumagalli, JD, MSCC, CMSP-F

The United States Supreme Court overruled the Chevron doctrine in the recent case of Loper Bright Enterprises et al v Raimondo , Secretary of Commerce , et al. ( No. 22-451, 604 U.S. ____(2024)22-451). The Chevron doctrine was previously established by the Supreme Court in the 1984 Chevron U.S.A. Inc v Natural Resources Defense Counsil, Inc. case ( 467 U.S. 837 (1984)) which involved the Environmental Protection Agency’s (EPA) interpretation of the language of the Clean Air Act Amendments of 1997. In agreeing with the EPA’s interpretation, the Court established a two-step approach for review of agency action. The first step requires an examination of whether Congress has directly spoken to the precise question at issue. If it has not, a court should defer to the agency’s interpretation if it has offered a permissible construction of the statute, even if it is not the same reading a court would have reached.

In overruling the Chevron doctrine in the Loper Bright Enterprises case, the Supreme Court considered challenges to a rule promulgated by the National Marine Fisheries Service pursuant to the Magnuson-Stevens Act, 16 U.S.C. Section 1801 et seq, which incorporates the Administrative Procedure Act (APA) 5 USC sec 551 et seq. Although the government argued that the Supreme Court should defer to the agency’s interpretation, the Court held that the APA instead required it to exercise independent judgment in deciding whether an agency has acted within its statutory authority. Under the APA, courts should not defer to an agency interpretation of law simply because a statute is ambiguous. The Court’s decision contains a lengthy examination of the judiciary’s responsibilities when it comes to interpreting law and adjudicating cases and controversies. Agency interpretations of federal statutes should be accorded respect instead of deference.

So how will the death of Chevron deference impact parties that are seeking to comply with the Medicare Secondary Payer (MSP) Act and regulations in their settlements?

As a starting point, it is important to remember that CMS is the agency charged with interpreting the Medicare Secondary Payer Act (MSP Act or MSPA). The language of the MSP Act and supporting regulations specifically state that Medicare is precluded from making payments for services to the extent that payment has been made or can reasonably be expected to be made promptly under any of the following” (i) workers’ compensation; (ii)liability insurance; (iii) no-fault insurance. (42 U.S.C.§1395y(b)(2)(A)(ii), 42 C.F.R.§411.20 (a)(2)). A primary payer’s responsibility for payment may be demonstrated by “a judgment, payment conditioned upon the beneficiary’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary payer or the primary payer’s insured or by other means…” (42 C.F. R§411.22). These provisions are enforced through Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) which provides for mandatory insurer reporting for Medicare beneficiaries who receive settlements, judgments, awards or other payments.

The interpretation of the MSP has been described by many courts as notoriously “complex.” The true impact of the death of the Chevron deference won’t be known until we see litigation against the Center for Medicare and Medicaid Services (CMS) related to its interpretation of the MSPA. The main areas that may lead to this litigation might involve the additional mandatory insurer reporting requirement of the amount of the Workers’ Compensation Medicare Set-Aside as well as civil monetary penalty calculations. In addition, since workers compensation settlements have a great deal of agency guidance when it comes to post settlement injury related care, ie the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, and a Medicare Set-Aside review process, it wouldn’t be surprising to see challenges to CMS’ actions in this area. On the other hand, Liability MSA’s have only been addressed by two CMS memos and remain largely unregulated. The best course of action for liability settlements continues to be a case specific approach which includes a discussion with the Medicare beneficiary client about the potential impact of a Medicare denial of post settlement injury related care when a settlement includes an element of future medical. The consultation and supporting documentation provided by an MSP compliance expert will show that Medicare’s interests were reasonably addressed in the settlement.

It is important to keep in mind that although the Chevron doctrine has been overruled, agency interpretation will still be given a certain degree of respect or weight. Until a body of case law is developed in the area of MSP compliance, it is prudent to stay committed to resolving conditional payments, coordinating Section 111 mandatory insurer reporting and addressing Medicare’s potential interest in post settlement injury related care.

Synergy’s MSP compliance experts are here to help you navigate the complexities of the MSP Act and supporting regulations. Partner with Synergy to make sure your practice and your client are protected when it comes to the Medicare Secondary Payer Act.