Chris Zachar on TLV Podcast

Hello, Fellow Trial Lawyers!

📧🎙️ Join host Jason Lazarus on Trial Lawyer View for an enlightening episode featuring Christopher Zachar from Zachar Law Firm. This captivating episode unveils the extraordinary legal journey of Christopher, who has masterfully secured over $150 million in verdicts and settlements for individuals in Arizona. Buckle up as we delve into the depths of his legal prowess and discover the secrets to his remarkable success. ⚖️💼

🌟 Christopher’s exceptional case acquisition strategies take center stage in this discussion. Learn how he skillfully attracts high-quality cases without relying on traditional advertising methods. Unlock the techniques that set him apart and discover how his innovative approaches continue to drive his firm’s growth and reputation. 🌐📈

💼 In this episode, gain valuable insights into the challenges Christopher confronted while building and trying his cases. Explore the intricate dynamics of managing client expectations, and uncover how his unique approach fosters trust and client satisfaction. Discover the delicate balance between legal expertise and client communication. 💬🤝

🌟 Prepare to be inspired as Christopher shares the finer points of his niche personal injury practice and the strategies that have propelled his firm to unprecedented heights. Discover the key elements of his successful law firm management techniques and how he navigates the complexities of running a thriving legal practice. 📚💼

Tune in for an engaging discussion that offers a deep dive into the world of trial law, client-centered legal strategies, and the pursuit of justice. Don’t miss this enlightening episode that provides a window into the triumphs and challenges of Christopher Zachar’s exceptional legal career.

Thanks for listening,

Jason D. Lazarus, Esq.

Health Insurance Impact on Injured Parties and Navigating Subrogation Vendors

July 13, 2023

Teresa Kenyon, Esq.

Introduction:

When it comes to settling a personal injury case, the complexities of health insurance subrogation can significantly impact the disbursement of settlement funds. Attorneys handling these cases must navigate the intricate dynamics at play, especially when dealing with subrogation vendors who specialize in recovering funds on behalf of health insurance carriers. This article aims to shed light on the workings of health insurance subrogation, exploring the evolution of subrogation, its impact on the injured party, and the role of subrogation vendors. Lastly and most importantly, it argues in the conclusion why personal injury plaintiffs and plaintiff counsel need knowledgeable experts on their side like the recovery vendors who fight for the plan’s subrogation rights.

The Evolution of Subrogation:

Subrogation as a practice has undergone significant evolution over the years to address the rights and obligations of interested parties. Subrogation defined is when an insurance company seeks reimbursement from a responsible party for a claim they’ve already paid according to their contractual requirements. Although some of these health insurance companies have their own internal subrogation departments, many choose to outsource. To navigate the complex landscape that surrounds the various legal theories, those health insurance companies often outsource to subrogation vendors who specialize in recovering funds. They are essentially their expert partner for lien resolution. It allows the insurance carrier to do what they do best – reviewing and paying insurance claims. And it allows the subrogation vendor to do what they do best by handling the collection and battle associated with clawing funds from an injured party’s settlement and sending those funds back into the insurance company’s bank accounts, with a large cut going to the subrogation vendor for collection.

Subrogation vendors like The Rawlings Company, Optum, and Conduent typically enter into contractual agreements with health insurance companies or other entities, outlining the terms and conditions of their services. These agreements specify the scope of work, responsibilities and authority, fees for service, and other relevant details. To initiate the subrogation process, subrogation vendors gather relevant data from insurance companies claims database including all relevant information related to the submission and payment of insurance claims. They analyze this data to identify potential subrogation opportunities where the insurance company may have a right to recover funds.

The concept of subrogation has evolved over time as a legal principle to address certain situations involving the rights and obligations of parties in insurance and contract law. While it is difficult to pinpoint an exact moment when subrogation became a “thing,” its origins can be traced back to ancient legal principles and practices. Historically, subrogation emerged from the doctrine of equity, which aimed to provide fairness and justice in legal matters. In its simplest form, subrogation refers to the substitution of one person or entity in place of another with respect to certain rights or claims. This helps prevent unjust enrichment and ensures that the responsible party bears the financial responsibility for their actions or negligence. Over time, subrogation has become a well-established legal doctrine through court decisions, statutes, and contractual provisions.

The Unintended Consequences:

Unfortunately, the evolution of health insurance subrogation and the introduction and spread of expert subrogation vendors has led to unintended consequences, deviating from the principles of equity and fairness. The original purpose of subrogation, which was aimed to ensure responsible parties bear the financial responsibility of their actions, has been overshadowed by a corporate pursuit of monetary gain at the expense of the injured person. Equity is the farthest thought in the mind of most subrogation vendors. In fact, they are trained to disregard the injured person, their injury and how it may truly negatively impact their entire life.

When a health insurance company exercises its subrogation rights, it is asserting its subrogation claim to recover from the total available settlement. Consequently, the injured party’s compensation is reduced, potentially leaving them with a smaller financial recovery than they anticipated or deserve to adequately cover their future needs or compensate them for their prior trauma. Herein lies the inequity and unfairness.

The subrogation process is meant to prevent double recovery by ensuring that the responsible party bears the financial responsibility for their actions. However, in most cases, the subrogation process fails to fully account for additional costs incurred by the injured party to secure a recovery, the non-medical economic damages or the non-economic damages they have suffered. In most cases, a settlement does not allow an injured party to receive full compensation for their loss, and the subrogation claim by the health insurer further reduces their recovery since it is asserted against all damages instead of being limited to past medical expenses.

Pursuing a personal injury claim is already a time-consuming and emotionally draining process. The introduction of health insurance recovery rights adds more uncertainty regarding the amount and timing of the compensation. This can create additional financial burdens for individuals already grappling with the consequences of their injury or illness.

Vulnerable individuals, such as those with severe injuries, chronic conditions, or significant medical expenses, are disproportionately impacted by health insurance subrogation. They heavily rely on the compensation received from liable third parties to cover ongoing medical costs, rehabilitation, and other essential needs. When a portion of their recovery is usurped by the insurance company through subrogation for past medical care, it exacerbates financial hardships and impedes their ability to pay for necessary care.

In some cases, and for certain health insurance benefit programs, laws and regulations have been enacted to protect the interests of the injured party and strike a balance with insurance companies. These laws provide certain protections or limitations on health insurance subrogation, mitigating the concerns raised by the disproportionate impact on injured individuals. However, the unfortunate evolution of health insurance subrogation has allowed certain health plans, such as ERISA, FEHBA, and others, to divert more settlement dollars away from the injured person, emphasizing the need for continued subrogation reform.

Understanding Subrogation Vendors:

Focusing on subrogation vendors is essential as they have played a significant role in shaping laws that favor their corporate clients. This alignment with insurance companies not only benefits the vendors financially but also strengthens their relationship with their health insurance clients. By collecting in more situations and recovering higher amounts, they can generate larger compensation for themselves. As partners for insurance carriers, subrogation vendors enter into contractual agreements with big insurance companies that outline the terms of their services. They analyze data from insurance claims databases to identify subrogation opportunities and work to collect funds from the injured party’s settlement, receiving a significant portion of the recovery as their fee.

Negotiating with subrogation vendors can be challenging for attorneys and their clients. Here are a couple quick hitting facts about most subrogation vendors handling ERISA subrogation claims. Most are understaffed. They juggle between 700-1000 cases, leading to significant delays and often, overlooked details. And no, they aren’t reading your lengthy letter on ERISA lien law. They are swamped. Representatives are typically narrowly trained, limiting their ability to appreciate counterarguments or understand complex subrogation issues outside their training sphere. They love to twist and misinterpret their recovery rights in their favor. Contrary to their statements, simply being an ERISA self-funded plan does not mean they can’t reduce their lien. It means they don’t want to because this lien type could produce the highest recovery for them. But their rights are only as strong as the plan language dictates. Even if it’s an ERISA plan, it doesn’t necessarily mean they are entitled to recover 100% of their claimed lien. The actual recovery amount able to be collected varies based on the plan language and the case specifics.

Although it’s lost some of its pizazz because it’s now 10 years old, the US Supreme Court case of U.S. Airways v. McCutchen has been used to spread a misunderstanding of the law. Contrary to popular belief, the McCutchen case did not ultimately force the injured party to repay the plan 100% of their expenses. This is a commonly misunderstood aspect that many recovery contractors exploit. On remand, the plan got even less once plan documents were reviewed with a closer eye. Speaking of plan documents, not all plans are self-funded, contrary to what they might claim. Funding status matters. Don’t rely upon what you are told; obtain and review the relevant plan documents yourself. The Cigna v Amara case held that the Master Plan Document (MPD) is the controlling document. A subrogation vendor may claim that the plan does not have an MPD. However, often, they either don’t want to retrieve it from the self-funded group or already have it and it’s not favorable to their recovery. Instead of producing the MPD, they misdirect you to the Summary Plan Description (SPD). Because it’s what they have in house. Usually this is because the document was created by the insurance carrier whereas the Master Plan Document was created by the actual self-funded employer group, making it harder for the recovery vendor to obtain.

Believe it or not, most reduction requests never actually make it to the client or plan. This is a well-kept secret that significantly impacts the resolution process. Subrogation vendor representatives will commonly refer to their client as having the decision making power. It gives the illusion that it is the insurance company who is a Claims Administrator or the self-funded employer is calling the shots. But for many subrogation vendors, they have complete discretion in house based on their subrogation contracts with their health insurance clients. This means that they internally get to make reduction decisions without clearing through the outside party they are working on behalf of. There are internal authority processes but only in narrow situations does the representative have the file reviewed outside the subrogation vendor’s internal team.

Aside from internal processes and financial incentive of the subrogation vendor itself, another big reason why many subrogation representatives are not open to reduction is because they have a personal stake in collecting that check from the injured party’s settlement. For most subrogation vendors, employees get a bonus for each recovery check they receive whether it be based on the dollar amount of the recovery, the number of recoveries they make in a month, or the percentage of reduction they provide on all of their closed files for the month.

Conclusion:

Attorneys play a crucial role in advocating for the injured party’s rights during the subrogation process. Attorneys must be knowledgeable and strategic in their interactions with subrogation vendors to ensure their clients keep a fair and equitable portion of their settlement. Understanding how subrogation vendors operate, their financial incentives, and the importance of obtaining and reviewing relevant plan documents can assist attorneys in effectively interacting with these vendors.

All of that still might not be enough though given the unlevel playing field when fighting a subrogation vendor. That is why outsourcing to experts in the field of lien resolution, like the health insurance plans do with recovery vendors, fights fire with fire. Having a team of experts who understand the ins and outs of these recovery vendors can level the playing field making sure your client keeps every penny of their recovery that they should.

Synergy is here to be that expert for trial attorneys and their injury victim clients. With our expertise and understanding of the intricacies of subrogation, we develop strategies to maximize the available settlement funds for injured people. Our focus is on achieving equity and fairness in the subrogation process thereby ensuring health insurance companies aren’t collecting more than they are entitled to. Trust Synergy to navigate the complexities of subrogation and provide exceptional lien resolution services for you and your clients. Together, we can ensure that injured individuals receive the compensation they very much deserve. Contact us today to learn how to partner with Synergy.

Michael Mogill on TLV Podcast

Hello, Fellow Trial Lawyers!

🎙️🔥 Are you ready to take your law firm’s practice to the next level? Get ready for an extraordinary episode of the Trial Lawyer View podcast! Join our esteemed host, Jason D. Lazarus, as he engages in an enlightening conversation with the brilliant Michael Mogill, the founder of Crisp. Prepare to be blown away by the wealth of knowledge and insights they will share in this transformative discussion.

💼💥 Michael Mogill is renowned for his innovative strategies that have revolutionized law firms across the industry. In this episode, you’ll embark on a deep dive into the essentials of optimizing law firm operations. Discover the art of assembling a stellar team, standing out in a highly competitive market, and achieving your firm’s goals with clarity and vision. This is your chance to learn from one of the industry’s brightest minds and propel your firm toward unprecedented success. 🌟✨

📚💡 But that’s not all! Prepare to uncover the power of crafting a unique value proposition and delivering an exceptional client experience. Explore how the quality of client interaction can have a profound impact, surpassing even the largest verdicts. Gain a fresh perspective on taking calculated risks and investing in your firm’s future. This episode will inspire you to embrace innovation and elevate your practice to new heights. 🚀💼

🎧⚖️ Don’t miss this incredible opportunity for inspiration and insights! Tune in to the Trial Lawyer View podcast and discover the secrets to accelerating your law firm’s practice. Get ready to transform your approach, gain a fresh perspective, and unlock unparalleled success. Join us on this exciting journey of growth and achievement!

Thanks for listening,

Jason D. Lazarus, Esq.

Understanding Medicare Advantage Plans: A Comprehensive Overview

June 9, 2023

Introduction:

Medicare Advantage plans have emerged as a popular option for individuals seeking comprehensive healthcare coverage beyond what traditional Medicare (Part A/B) offers. These plans, also known as Medicare Part C, provide a unique alternative to traditional fee-for-service Medicare by combining various medical services into a single, all-inclusive package. In this article, we will provide a high-level overview of Medicare Advantage plans, helping you understand the key aspects and benefits they offer.

What is a Medicare Advantage Plan?

Medicare Advantage plans are private health insurance options offered by Medicare-approved insurance companies. They work by bundling together the benefits of Medicare Part A (hospital insurance) and Part B (medical insurance) into a single plan. In addition, most Medicare Advantage plans often include prescription drug coverage (Part D) as well. These plans are required to provide at least the same level of coverage as Original Medicare, but many go beyond by offering additional benefits such as dental, vision, hearing, and fitness programs.

Coverage and Benefits:

Medicare Advantage plans typically provide coverage through a network of healthcare providers, including doctors, hospitals, and specialists. There are different types of Medicare Advantage plans, including Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), and Special Needs Plans (SNPs). Each type has its own network rules and coverage options. Some plans may require you to get referrals from a primary care physician before seeing a specialist, while others offer more flexibility to see out-of-network providers at a higher cost.

Costs and Enrollment:

Enrolling in a Medicare Advantage plan requires individuals to be eligible for Medicare Part A and Part B. While Original Medicare has standardized premiums, Medicare Advantage plans often have their own premiums, deductibles, and cost-sharing arrangements. Some plans have low or even $0 premiums, but you still need to pay your Part B premium. It’s crucial to review and compare the costs and coverage details of different plans to find the best fit for your healthcare needs and budget.

Additional Considerations:

When considering a Medicare Advantage plan, it’s important to understand that these plans have certain limitations. For instance, they have specific enrollment periods and geographical limitations. Moreover, Medicare Advantage plans may require prior authorization for certain procedures or medications. It’s essential to carefully review the plan’s rules and restrictions before making a decision.

Personal Injuries & Medicare Advantage

Medicare Advantage plans enjoy the same rights as traditional Medicare does under the Medicare Secondary Payer Act (MSP) when a personal injury settlement occurs, and the Advantage plan makes payments for injury-related care. The Advantage plan will have a lien. Pursuant to the MSP, their repayment formulas are the same as Medicare under 411.37 (c) and (d) which only requires a procurement cost reduction. The key for personal injury victims is making sure you discover all Medicare claims since Medicare itself doesn’t alert you to an Advantage plan lien. Failing to reimburse a Medicare Advantage plan could expose the parties to a claim of double the lien amount. In addition, Medicare Set-Aside considerations may need to be addressed since it is always possible to switch back to traditional Medicare under Part A/B. Avoiding a denial of future injury-related care is always a prudent course of action by exploring the Medicare Set-Aside issue.

Conclusion:

Medicare Advantage plans offer an alternative approach to healthcare coverage by combining the benefits of Original Medicare with additional services and potentially lower out-of-pocket costs. By understanding the basics of these plans, you can make an informed decision about your healthcare needs. Remember to review the available plans, compare their coverage and costs, and consult with a licensed insurance professional or Medicare counselor to ensure the plan aligns with your specific requirements. It is also important that if you get injured while being covered by an Advantage plan that you understand the implications of a settlement in terms of reimbursement of the plan as well as future eligibility.

Contact Synergy to see how we can help your firm.

Synergy’s Workers’ Compensation Medicare Secondary Payer Advice Column

June 6, 2023

Rasa Fumagalli JD, MSCC, CMSP-F

The Medicare Secondary Payer Act impacts workers’ compensation, liability, and no-fault settlements involving a Medicare beneficiary. This month’s “Since You Asked” column addresses a situation where Medicare incorrectly denies non-injury-related treatment after a workers’ compensation case settles.

Question:

My client settled a workers’ compensation case that involved an injury to the metatarsals of her right foot about six months ago. Since she was on Medicare at the time of the settlement, the workers’ compensation insurance carrier reported the settlement to Medicare. My client is now receiving treatment for a completely unrelated right ankle condition which is being denied by Medicare because of her workers’ compensation settlement. What is going on here?

Answer:

This situation may be due to an issue with Section 111 Mandatory Insurer Reporting that was done by the workers’ compensation insurance carrier’s Responsible Reporting Entity (RRE). Section 111’s Mandatory Insurer Reporting (MIR) provisions generally require workers’ compensation insurers to report all workers’ compensation settlements to Medicare that involve Medicare beneficiaries. This is called a Total Payment Obligation to Claimant (TPOC) report. There is also an obligation to report the assumption of an Ongoing Responsibility for Medical (ORM) when the accident is accepted. This reporting requirement helps Medicare recover improper payments and avoid making inappropriate payments in the future.

When a workers’ compensation insurer reports a settlement to Medicare, the RRE must provide the injury victim’s first name, last name, date of birth, gender, Medicare Beneficiary Identifier (MBI), and Social Security Number (or the last five digits). Additionally, the RRE must report International Classification of Diseases (“ICD”)-10 diagnosis codes for the illnesses/injuries alleged, claimed, or released in the settlement. CMS encourages RREs to supply as many valid ICD-9/ICD-10 Diagnosis Codes as possible for the most accurate coordination of benefits. In your client’s case, the RRE may have reported an overly broad diagnosis code for an injury to the right leg, instead of a specific injury to the metatarsals of the right foot resulting in Medicare’s denial of the post-settlement treatment.

The beneficiary’s medical provider may be able to help address this situation. The February 23, 2021, Medicare Learning Network article (MLN Matters Number: SE21002) advises providers about the appeal process to follow when Medicare denies treatment due to an open or closed Liability, No-Fault, or Workers’ Compensation MSP record on the beneficiary’s Medicare file.[1] When Medicare inappropriately denies a claim because the diagnosis code on the unrelated claim and in the beneficiary’s MSP Section 111 settlement reporting record are the same or similar, the provider should appeal the inappropriately denied claim with the Medicare Administrative Contractors (MACs). The appeal should explain and provide support that shows the services are not related to the injury reported on the MSP record. The article also advises the provider not to bill the Medicare beneficiary for the inappropriately denied claim but to resolve the claims issue with the appropriate MAC.

When faced with this unfortunate situation, we recommend that you reach out to the workers’ compensation insurance carrier to seek assistance in correcting the Section 111 settlement report. The provider should also be able to assist with the inappropriate denial by filing an appeal with the MAC. A proactive approach whereby both parties discuss and agree upon the diagnosis codes to be reported under Section 111 Mandatory Insurer Reporting when settling, generally helps to limit these types of problems post wash out of the claim.

Given these complexities, turn to Synergy Settlement Services team of MSP compliance attorneys to help guide you in the MSP compliance maze.

[1] https://www.cms.gov/files/document/se21002.pdf

Galen Hair on TLV Podcast

Hello, Fellow Trial Lawyers!

Join us on Trial Lawyer View as we embark on an extraordinary exploration of first-party insurance claims and the art of advocacy with the remarkable trial lawyer, Galen Hair. Galen, hailing from the esteemed Hair Shunnarah Trial Attorneys and Insurance Claim HQ, has dedicated his career to fighting for justice and the rights of policyholders. Prepare to be captivated by his wealth of knowledge and passion for making a difference in the world of first-party litigation.

In this highly anticipated episode, Galen takes us on a deep dive into the complexities of first-party insurance law. With meticulous attention to detail and a profound understanding of the intricacies involved, he shares invaluable insights, strategies, and best practices for navigating the often challenging landscape of insurance claims. Whether you’re a policyholder seeking justice or a legal professional looking to expand your expertise, this episode promises to be a goldmine of information.

One of the key aspects that sets Galen apart is his unwavering commitment to understanding the unique stories behind each case. He believes that empathy is a powerful tool in the pursuit of justice, and he shares inspiring anecdotes and real-life experiences that highlight the transformative impact of truly understanding and connecting with his clients. Galen’s dedication to his craft and his clients is palpable, and his approach serves as an inspiration to legal professionals and advocates across the industry.

As you tune in to this thought-provoking episode, be prepared to be enlightened, inspired, and empowered. Galen’s expertise and passion shine through as he sheds light on the importance of effective advocacy and the profound impact it can have on the lives of policyholders. Gain valuable insights into the inner workings of first-party insurance claims, discover strategies for achieving favorable outcomes, and uncover the true essence of justice.

We invite you to join us on this enlightening journey with Galen Hair on Trial Lawyer View. Immerse yourself in his wisdom, be captivated by his storytelling, and embrace the power of advocacy in the world of first-party insurance claims.

Don’t miss out on this extraordinary episode. Tune in now to embark on a transformative exploration of first-party insurance claims and advocacy with Galen Hair.

Thanks for listening!

Jason D. Lazarus, Esq.

An Ethical and Effective Solution for Personal Injury Attorneys

May 11, 2023

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

In the complex world of personal injury law, litigating trial lawyers must prove causation, liability, and damages to ensure their clients receive the compensation they deserve. To navigate this challenging landscape, personal injury law firms often rely on specialized experts to help them with and prove their case. Personal injury lawyers routinely engage experts in other complex areas of law, such as probate, guardianship, government benefit preservation, tax, or bankruptcy. Attorneys also frequently rely on accident reconstructionist experts, economic damages experts, and Medicare experts.

Settlement is no different! Lien resolution is a prime example of a specialized area where outsourcing at settlement makes sense, both ethically and professionally. By enlisting subrogation experts, personal injury lawyers can enhance their clients’ net recovery while navigating the potential pitfalls inherent in the resolution process.

Ethics of Outsourcing Lien Resolution

Lien resolution is complicated by the varied and extensive laws governing health insurance subrogation claims. ERISA, the Medicare Secondary Payer Act, Medicaid, FEHBA, and other types of private insurance liens are specialties unto themselves. Each type of lien has its own statutory and regulatory body of law, can be subject to different state regulations, and can often coexist on the same case. A single personal injury victim may have multiple liens asserted against their recovery, which further complicates the lien resolution process.

Outsourcing lien resolution services is ethical because it allows trial lawyers to secure the best possible outcome for their clients, and ensures that all subrogation claims, reimbursement obligations, and liens are resolved in accordance with the law. The liability falls on the trial lawyer to protect their client from litigation and potential loss of health care coverage by properly addressing valid lien holders. Failure to do so could result in legal malpractice or personal liability, for example, for double the lien amount under the Medicare Secondary Payer Act’s double damages provision.

The American Bar Association (ABA) Model Rule 1.15 sets the standard for the ethical duty of trial lawyers to protect disputed funds when a lien holder claims more than they are entitled to from a settlement, judgment, or award. Many states have ethical rules or opinions which mirrors Model Rule 1.15 which can be read to impose a duty upon trial lawyers to safeguard disputed funds. Furthermore, Model Rule 1.1 requires a lawyer to have the necessary knowledge, skill, thoroughness, and preparation to undertake lien resolution. If a lawyer lacks the expertise to resolve liens, they must ensure competent representation through other means, such as retaining experts.

The ABA’s Formal Ethics Opinion 08-451 provides guidance on the ethical rules for outsourcing legal and nonlegal support services. It states that a lawyer may outsource services as long as they remain ultimately responsible for rendering competent legal services to the client under Model Rule 1.1. The lawyer must also comply with Rules 5.1 and 5.3, protect confidential information, ensure the competence and training of the provider, and obtain disclosure and informed consent from the client.

Several states have further defined the ethical requirements for outsourcing lien resolution. New York, Ohio, and Utah, for example, all permit personal injury lawyers to retain an outside lien resolution firm and charge its fee as an expense of litigation paid by the client, as long as certain conditions are met. These conditions include obtaining informed consent from the client, charging reasonable fees, ensuring a net benefit to the client on each lien negotiated, complying with state-specific bar rules and substantive law, and maintaining ultimate responsibility for the work product.

Conclusion

In conclusion, outsourcing lien resolution services is an ethical and effective solution for personal injury attorneys. By partnering with expert lien resolution providers, lawyers can ensure the best possible outcomes for their clients while adhering to the highest professional standards. By following the ethical guidelines set forth by the ABA and state bar associations, attorneys can confidently outsource lien resolution services and focus on their primary responsibility: advocating for their clients and securing just compensation for their injuries.

The benefits of outsourcing lien resolution services go beyond merely complying with ethical guidelines. By engaging experts in the field, personal injury attorneys can save valuable time and resources, allowing them to dedicate more attention to their clients and their cases. This collaboration also enables personal injury lawyers to provide a higher level of service, as they can leverage the specialized knowledge and experience of lien resolution professionals to negotiate better outcomes for their clients.

Additionally, outsourcing lien resolution services can help law firms manage risk more effectively. Given the complexity and potential consequences of mishandling liens, partnering with specialists can significantly reduce the likelihood of errors and oversights that could lead to litigation, professional liability, or damage to the firm’s reputation. This risk management benefit further supports the ethical rationale for outsourcing these services.

In summary, outsourcing lien resolution services is not only an ethical decision, but it also offers numerous advantages for personal injury attorneys and their clients. By partnering with expert providers, attorneys can focus on their core competencies, offer enhanced services, and manage risks more effectively.

Brian Poulter on TLV Podcast

Hello, Fellow Trial Lawyers!

🎙️✨ Unveiling the exciting new episode of our Trial Lawyer View podcast! Join our host Jason Lazarus as he dives deep into the world of top-tier trial lawyering with the dynamic Brian Poulter from Stalwart Law Group.

In this must-listen episode, Brian pulls back the curtain on his incredible journey as a trial lawyer, revealing the secrets of success in complex catastrophic injury and wrongful death cases. Discover how his distinctive background became a powerful asset in his legal career. Prepare to be riveted by Brian’s compelling discussion of the groundbreaking Phillips elder abuse case and his transformative approach to school liability cases, which has sparked real change in schools’ conduct.

Get an exclusive peek into Brian’s winning formula for trials and his exceptional preparation techniques, credited as the game-changer behind his soaring success. He even spills a one-of-a-kind tip that could revolutionize the careers of fellow trial lawyers! Plus, hear about the upcoming trials where his innovative approach will take center stage.

Tune in to hear Brian’s candid take on the most challenging issues he encounters in resolving cases, particularly when it comes to settlements. Don’t miss this treasure trove of wisdom from a seasoned trial lawyer! Listen to the latest episode on our website or your favorite podcast platform.

Thanks for listening!

Jason D. Lazarus, Esq.

Would Better Billing by Providers Result in Fewer MSP Recovery Claims Cases?

April 20, 2023

Rasa Fumagalli, JD, MSCC, CMSP-F

MSP Recovery Claims, Series LLC, and MSPA Claims 1, LLC have filed several cases on behalf of Medicare Advantage Organizations (MAOs) against insurers for failing to reimburse the MAOs for injury-related medical payments made on behalf of their enrollees. These cases often originate from a glitch in the coordination of benefits process during initial treatment. This article provides an overview of the Medicare Secondary Payer (MSP) billing policies and recent cases, including the consolidated MSP Recovery Claims, Series LLC v. United Automobile Insurance Company and MSPA Claims 1, LLC v. Covington Specialty Insurance Company cases (Nos. 21-12439, 21-12428) in the United States Court of Appeals, Eleventh Circuit.

The Medicare Secondary Payer Act and regulations provide a framework for Medicare to recover conditional payments from settlements involving Medicare beneficiaries and to avoid making improper payments. The Act prohibits Medicare from making payments for services “to the extent that payment has been made or can reasonably be expected to be made under any of the following: (i) workers’ compensation; (ii) liability insurance; (iii) no-fault insurance” (42 C.F.R. § 411.20; 42 U.S.C. § 1395y(b)(2)(A)). A primary payer’s obligation to reimburse Medicare for conditional payments may be shown by a judgment, payment conditioned upon release of liability, or other means. If Medicare makes a conditional payment, it has the right to recover payments from providers, suppliers, physicians, attorneys, state agencies, or private insurers that have received a primary payment (42 CFR Sections 411.24). Medicare Advantage Plans have the same recovery rights as traditional Medicare.

Chapter 3 of the Medicare Secondary Payer (MSP) Internet Only Manual (IOM) provides detailed instructions to providers to enable them to bill a primary plan before Medicare is billed. Providers are instructed to alert the MSP contractor, the entity responsible for coordination of benefits, whenever they receive a request from an attorney or insurance company for a copy of the billing or medical records of a Medicare beneficiary. Providers are also instructed to obtain information regarding possible MSP situations. This may be done by asking the Medicare patients if the requested services are for treatment of an injury resulting from an automobile accident or other incident for which liability or no-fault insurance may pay, or for which another party may be responsible. Section 20.2.1 provides model admission questions to ask Medicare beneficiaries to enable proper coordination of benefits.

In addition to the guidance in the Manual, the Medicare Learning Network (MLN) periodically releases memos for physicians and other providers about billing procedures in situations where Medicare is a Secondary Payer. The February 19, 2020 memo discusses the use of a Medicare Set-Aside Arrangement (MSA) to pay for injury-related services. The February 23, 2021 memo advises providers about the appeal process to follow when Medicare denies treatment due to an open or closed Liability, No-Fault, or Workers’ Compensation MSP record on the beneficiary’s Medicare file.

Despite the IOM and MLN guidance provided by CMS, providers may, at times, submit bills to Medicare or the MAO plans instead of the primary payer. This can result in cases settling without the primary payer reimbursing the MAO plan for their payments. As noted above, this fact pattern has been the subject of numerous cases brought by MSP Recovery on behalf of MAOs against various insurance companies.

The most recent consolidated cases, MSP Recovery Claims, Series LLC v. United Automobile Insurance Company and MSPA Claims 1, LLC v. Covington Specialty Insurance Company, Nos. 21-12439, 21-12428 before the United States Court of Appeals, Eleventh Circuit (February 22, 2023 These cases involve situations where United Automobile Insurance Company and Covington Specialty Insurance Company settled cases without reimbursing the MAO plans for their payments. Rather than seeking reimbursement from the injury victims and their attorneys, MSP Recovery Claims and MSPA Claims pursued the insurance plans for double damages.

MSPA Claims 1 LLC, as the assignee of the Florida Healthcare Plus Inc, a Medicare Advantage Organization, brought an exemplar claim against Covington in a putative class action. It involved a Medicare beneficiary, known as “P.M.” who injured her ankle and foot in February of 2014 when she fell down stairs at a property owned by 3550 Palm Beach Holdings, LLC. Although Covington insured the property under general liability and no-fault policies, P.M.’s medical providers billed the Florida Healthcare Plus plan and received payment for her medical expenses. Florida Healthcare Plus’s right to reimbursement as a secondary payer was assigned to MSPA.

MSPA advised Covington of its reimbursement rights in July of 2015. Covington declined to reimburse the Florida Healthcare Plus plan, arguing that the medical expenses were not reported to Covington within the policy’s one-year provision from the date of the accident. Covington settled the claim directly with P.M in 2016. MSPA argued that the claims filing deadline in the Covington Insurance policy was preempted by the Medicare Secondary Payer Act. The district court granted summary judgment in favor of Covington. MSPA Claims 1, LLC brought this appeal.

The US Court of Appeals, 11th Circuit, was not persuaded by MSPA’s argument that there is no time limit for an MAO seeking reimbursement from a primary plan. Although the Medicare Secondary Payer Act applied a three-year claim filing period to employer group health plans, there was no basis for the Court to infer that the provision preempts a claims-filing deadline in a no-fault or general liability policy. MSPA’s attempt to argue that Covington’s primary payer status could be established based on its settlement with P.M. was also barred since it was not pled in the complaint. Since MSPA’s initial argument focused on Covington’s status as a primary payer based on the terms of its insurance policy, Covington’s defense that was based on the one-year claims-filing deadline was valid. The Court affirmed the district court’s ruling that granted summary judgment.

The MSP Recovery Claims, Series LLC v. United Auto cases involved two exemplar Medicare beneficiaries, “W.T.” and “W.M.,” who sustained injuries in accidents covered under United Auto’s no-fault policies. United Auto sought summary judgment based on MSP Recovery’s failure to send United Auto a “pre-suit demand letter” as required by the Florida Motor Vehicle No-Fault Law. Although MSP Recovery argued that the Medicare Secondary Payer Act preempted Florida’s pre-suit demand requirements, the district court granted summary judgment to United Auto.

The US Court of Appeals agreed with the district court’s ruling. Although MSP Recovery argued that the Court’s prior decisions compelled the conclusion that the Medicare Secondary Payer Act preempted this provision of the Florida Motor Vehicle Act, the Court disagreed with MSP Recovery’s interpretation of their decisions. The Court also declined to hold as a matter of first impression that the Medicare Secondary Payer Act preempts the Florida Motor Vehicle Act’s requirement of a pre-suit demand letter. In reaching this decision, it considered the three classes of preemption. Preemption exists when a congressional legislative scheme is so pervasive that Congress left no room for the states to supplement it; when the text of a federal statute explicitly manifests Congress’ intent to displace state law, and when it is physically impossible to comply with both federal and state law. The Court found that the provisions of the Florida Motor Vehicle Code do not create an unconstitutional obstacle to the operation of the Medicare Secondary Payer Act.

Although MSP Recovery Claims, Series LLC, and MSPA Claims 1 did not prevail in these cases against the insureds, it would appear that they may have prevailed in their collection efforts against the injured party and/or their counsel. This path, however, is inconsistent with MSP Recovery’s business model that targets insurers. Considering the potential exposure that an injured party and their counsel may face, best practices dictate the need to proactively address payments made by any MAOs in connection with a settlement. Whenever insurance information is available, it should also be shared with the providers so that the correct plans may be billed before Medicare.

In conclusion, these cases highlight the importance of proper coordination of benefits in the Medicare Secondary Payer system. Providers must follow the guidance provided by the Medicare Secondary Payer Act and regulations, as well as the Medicare Learning Network, to ensure that they bill the primary payer before billing Medicare or an MAO. Insurers must also be aware of their obligations to reimburse MAOs for conditional payments made on behalf of their enrollees. Failure to comply with these requirements can result in costly litigation and potentially double damages for insurers.