7 Common Workplace Injuries That Could Require Medicare Set Aside Services
Utilizing a Medicare Set Aside for personal injurycan be confusing without the help of an experienced settlement consultant from Synergy Settlement Services. Fortunately, our Medicare Set Aside (MSA) services help attorneys focus on the case at hand by allowing an experienced professional to handle the details of their client’s settlement.
It’s easy to get lost in the confusing world of settlement planning, which includes mass torts, pooled trusts, asset management services, and more, when you take on this burden alone, especially when you consider the broad range of personal injuries that can require Medicare Set Aside services. In this article, we will discuss seven common injuries that often require our settlement services.
Violent Acts in the Workplace
Conflict is common in the workplace. Sometimes, these arguments escalate to fights which can lead to serious physical injuries. Depending on the circumstances of the violent act, an MSA may be required.
Vehicular Accidents
If your client was injured while driving a vehicle, such as a bulldozer or a crane, for business purposes, they could be eligible for a workplace personal injury claim. This is especially true if their employer failed to utilize effective training programs to teach workers about safety.
Machine Entanglement
People who work in close proximity to machines should be aware of how to safely interact with these mechanisms. Machine entanglement occurs when clothing, shoes, or body parts are snagged by moving machinery.
Repetitive Motion Injuries
Repetitive motion injuries are extremely common and oftentimes undiagnosed. This type of injury occurs when workers perform the same action for too long. For example, typing or extensive computer usage can lead to muscle strain, vision problems, and even carpal tunnel syndrome.
Falling Objects
Workers, especially those in the construction industry, are often at risk of being injured by falling objects. Typically, this results in head injuries. Employers are responsible for maintaining safe workplaces and supplying workers with any appropriate protective gear.
Falling Personnel
On elevated project sites, the risk of workers being injured from a fall is increased substantially. Slip and fall accidents can be attributed to faulty equipment, poorly implemented safety precautions, or a lack of personal protective equipment. Falling personnel are a common source of workplace personal injury claims.
Overexertion
Overworked employees can easily injure themselves during actions like pulling, lifting, pushing, holding, carrying, or throwing objects in the workplace. Overexertion is one of the most common causes of workplace injuries that could require Medicare Set Aside services.
If your client is collecting a settlement for a workplace injury, regardless of the type of injury, Synergy Settlement Services is prepared to offer our services.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
The Most Common Types of Mass Tort Cases Part 2
In this two-part article, we are discussing the most common types of mass tort cases. By design, mass tort cases help trial attorneys consolidate the best interest of several people (claimants) who suffered damages into a civil action against the entity that caused this occurrence (the defendant). Because this is an extremely tedious and time-consuming process for an attorney, hiring a specialized professional to assist with the settlement process can be greatly beneficial. As the attorney focuses on the legal nuances of the case, our experts maximize the value of the settlement while also providing settlement planning services that protect those assets long-term.
In the first section of this two-part series, we discussed mass tort cases that involve pharmaceutical drugs. Whether it’s a defective drug that was manufactured and sold, there were unknown side effects associated with the drug, or the drug was poorly marketed, these are common cases. Here are four other common types of incidents that affect several people and can result in a mass tort case.
Medical Devices
Similar to pharmaceutical drugs, another serious issue in the medical field is injuries that occur after a medical procedure. Unfortunately, the medical device industry is poorly regulated and in many cases, devices that are utilized do not undergo significant testing before they are applied. If a defective device is implanted in a patient, this can seriously impact their health and wellness in a variety of ways.
Product Liability
Many people suffer damages because they utilized a defective or harmful product. Whether the manufacturer was at fault, the design of the product was inherently dangerous, or the product failed to provide the consumer with proper instructions or warnings, these negative experiences can lead to a mass tort case. Product liability claims can span from the automotive industry to retail products to the medical industry.
Environmental and Toxic Contamination
There are a variety of ways that the environment and chemical exposure can damage the health of public bystanders. Here are some examples of toxic or environmental contamination mass torts:
Asbestos, silica, mold, chemical, and fumes exposure
Contaminated natural resources like soil, water, and air
Long-term pollution in a redeveloped toxic area
Failure to mitigate emergency contamination accidents
Large Scale Catastrophe
When a disaster happens, like when a fire occurs in an apartment complex or manufacturing plant, this tragic occurrence can be consolidated into a mass tort. During a large scale catastrophe, a variety of injuries occur that can uniquely impact each victim.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
The Special Needs Trust: 3 Types
The Special Needs Trust (SNT) is designed to protect individuals with disabilities who are receiving money through a trust. The SNT is an effective tool because it places funds and other relevant assets in the control of a trustee to make it easier for an individual with special needs to save money while avoiding any possible breaches such as spending more than the active Supplemental Security Income/Social Security Disability (SSI/SSDI) resource limit of $2,000.
Few realize that breaching a trust can lead to a recipient losing their eligibility for federal and state benefits, so it is important to work with a settlement planner from Synergy Settlement Services who understands the nuances of SNTs. In this article, we will discuss the three types of trusts associated with SNTs: the First-Party Trust, the Third-Party Supplemental Trust, and the Pooled Trust.
First-Party Trust
This trust must be filed and completed by a parent, grandparent, or the court. It cannot be filed by the special needs beneficiary although this trust is funded by the assets of the beneficiary. As long as the beneficiary is living, the funds in the trust can be utilized for their benefit. Once the beneficiary passes away, the government is reimbursed for their Medicaid costs, often referred to as a payback provision.
Third-Party Supplemental Trust
Like the First-Party Trust, a Third-Party Supplemental Trust allows a disabled beneficiary to relinquish control of their trust to an entity who may be able to more suitably manage finances for long-term success. This is a common form of SNT because the trust is permitted to hold any type of asset from the donor including a house, stocks and bonds, or alternative types of investments. This type of trust also applies to beneficiaries of life insurance policies. Arguably the most important thing to understand about this trust is that since the SNT is never placed in the beneficiary’s name, the remaining funds will be passed on to family members or a preferred charity instead of the government if the beneficiary passes away.
Pooled Trust
When utilizing the Pooled Trust, all trust money is held and distributed by a non-profit 501c3. This can help avoid conflicts of interest and ensures that all money is issued according to necessity. Like the First-Party Trust, it also includes a payback provision. Is there not enough money for a stand-alone SNT for your client? This type of trust allows beneficiaries to combine their resources in a “pool.” This makes it easier for beneficiaries to invest their money wisely. Once again, if the beneficiary dies, the remaining money is passed on to another, non-government entity. Although a portion will often be given to the non-profit trust manager.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Negotiating Catastrophic Workers’ Comp Claims
It is a very common practice for insurance carriers to negotiate catastrophic workers’ compensation claims using offers in the form of both upfront cash to the claimant and a structured settlement. At a minimum, any case involving a Medicare set aside will typically be funded with a structured settlement annuity. AIG, Berkshire Hathaway, and USAA not only have property and casualty companies which ensure the employers, but they also have their own in-house structured settlement programs. If they can get the claimant to agree to a structured settlement with their own company, they may see additional financial benefits at the expense of the claimant. This is why it is imperative for attorneys who represent injured workers to have their own settlement consultant to ensure that if any settlement offers are made in the form of a structured settlement, that the claimant will, in fact, get the largest payout available from the highest rated company/companies.
In a recent case, we were asked to attend a settlement conference for a paraplegic where AIG was the excess carrier. There was a $550k WCMSA and the claimant was receiving 12 hours a day of attendant care. Every offer made during the mediation contained a structured settlement payout for not only funding the WCMSA obligation but also for the attendant care for the lifetime of the claimant. The case ultimately resolved for $3.0 million, of which $1.25 million was used to fund a structured settlement. What is important to note is that Synergy was able to hold AIG’s feet to the fire regarding what companies to use for funding the structured settlements. We were able to put nearly $88k in additional dollars directly in the claimant’s pockets in the form of a cost savings to purchase those same structured settlements since the employer/carrier’s structure broker was only quoting AIG. Prior to mediation, we had priced out the entire annuity marketplace and knew that New York Life and Pacific Life had the best rates respectively, not AIG. We were able to leverage that information for the benefit of our clients.
There is a difference between a settlement consultant/planner and a structured settlement “broker”. A broker sells structured settlement annuities while a settlement consultation/planner is an expert who provides a “settlement plan”. A settlement consultant should have an arsenal of options for the claimant to consider as part of any settlement plan. A structured settlement is generally the cornerstone of any settlement plan for a catastrophic workers’ comp claim, but it cannot be the only component for consideration by the injured worker. A qualified expert should also have extensive knowledge in dealing with trusts, Medicare Set-Asides, MSP compliance as well as public benefit protection. Most importantly, they should have the experience in assisting both claimants and claimant’s attorneys on catastrophic workers’ compensation cases.
At Synergy, we frequently attend settlement conferences/mediations either in person or by phone at NO COST to the attorney or injured worker. Our expert settlement consultants can quarterback the settlement process as part of a holistic settlement team approach. This approach may include utilizing our certified Medicare set aside specialists, certified financial planners, nurse allocators, economists, subrogation analysts, or public benefits attorneys to provide direct support before, during and after the negotiations. Don’t rely upon the employer/carrier’s “structure specialist”. Those “specialists” are brokers and are there to protect the employer/carrier, not the claimant and the claimant’s attorney. The earlier Synergy gets involved in the settlement process, the better equipped you will be to recover maximum available dollars. Call us today to show you how we can help increase the value of the case, protect your firm/your client and assist in getting catastrophic claims to the finish line expeditiously when dealing with CMS or Medicare eligible claimant.
Liability MSAs: The Whole Truth and Nothing But the Truth
B. Josh Pettingill
Problem 1) There is still an incredible amount of misinformation in the marketplace about Liability MSAs.
Despite efforts to raise awareness and educate stakeholders about LMSAs, many of the largest liability insurance carriers are still convinced that failure to address Medicare’s future interests on liability case creates exposure for them. There is a contingent of MSP compliance “experts” and MSA vendors who have persuaded the insurance industry that if they do not establish an MSA when resolving a liability claim, then CMS can levy serious fines, penalties, or bring legal action against them. These scare tactics can adversely impact the resolution of a liability claim. The carriers have become so concerned about the issue that they have started to mandate an MSA on every liability case involving a Medicare-eligible plaintiff where future medical costs were either claimed or released.
The most common issue regarding exposure raised by some MSA vendors is that CMS can impose a lien post-settlement on a closed case; thereby retroactively exposing the carrier for not properly extinguishing all the liens. This argument is completely without merit. Since there are no regulations or statutes empowering Medicare to take any punitive action against a carrier related to Medicare-covered services after settlement, insurance carriers should concentrate on liability for conditional payments and Section 111 reporting requirements.
Problem 2) Attorneys are ignoring the potential MSA issue instead of proactively addressing it early on with the plaintiff.
The MSA issue is most frequently brought up at the end of the settlement when there has never been a prior discussion during negotiations. As such, plaintiff attorneys are often caught off guard with unsubstantiated demands by the defendant. The injury victim is blindsided as well by the fact they may be getting less money in their pocket to spend freely because some of it will need to be earmarked for Medicare’s purposes. The insurance carriers are worried because they firmly believe they have exposure for failure to address the issue. Therefore, the carriers are oftentimes pushing the MSA as a contingency of the settlement. In situations where the MSA is not a material term of the settlement, MSP provisions are frequently presented at the time the release is signed; which is typically done through an MSA addendum with numerous stipulations. Disagreement on whether an MSA is appropriate has, unfortunately, become the norm when settling catastrophic liability cases with a Medicare-eligible plaintiff. These frequent occurrences leave all involved with a bad taste in their mouth about “Medicare Set-Asides”.
The plaintiff’s bar can no longer pretend as if the MSA issue does not exist. Many plaintiff attorneys believe that they do not need to do anything with respect to protecting Medicare’s future interests. While it is true there is currently no regulation or law that mandates a Medicare Set-Aside, it does not mean there will be no consequences if a plaintiff attempts to shift the burden to Medicare for future injury-related care. It is very clear from Medicare’s public statements that the agency believes that set-asides are the best method to protect the program from paying for injury-related care when future medical costs are funded by a settlement[1]. Additionally, and most importantly for trial lawyers, CMS has stated in recent meetings with stakeholders that the MSA issue is strictly a plaintiff issue[2]. This means plaintiff counsel has the liability and exposure for a malpractice claim if things go wrong post-settlement.
Action Step: Start early in educating the injury victim about all MSP compliance issues.
Instead of ignoring the MSA issue or being reactive to it when the defendant brings it up at the end of the case, it is incumbent on the plaintiff attorney to introduce the possibility and concept of an MSA to their Medicare-eligible client at the very beginning of the case. Plaintiff’s counsel has legal malpractice risks if they fail to properly advise the client regarding the set-aside issue when they are currently eligible to receive Medicare benefits. Best practices are for plaintiff’s counsel to consult with experts about proper Medicare compliance techniques, educate the plaintiff on the issues surrounding the MSP statute and then document what they have done to comply with the MSP statute.
The MSA is an insurance policy, not a scare tactic.
A Medicare Set-Aside account is an insurance policy for all parties involved. If the plaintiff spends down the MSA funds appropriately, then their medical insurance (Medicare benefits) will never be disrupted. Once the set-aside account is exhausted, an injury victim gets full Medicare coverage without Medicare ever looking to the remaining settlement dollars to provide for any Medicare-covered health care. It is like an insurance deductible in the sense that once the funds have been spent down appropriately, Medicare will then kick in and start to pay again. If the plaintiff were to pass away prematurely, then the MSA funds remaining in the account would go to the plaintiff’s beneficiaries.
From the plaintiff attorney’s standpoint, simply having a discussion with the plaintiff about the potential implications of failing to protect the Medicare Trust Fund is protection against getting sued for legal malpractice. Take as an example, Synergy received a panic-stricken call from a plaintiff attorney who told us that he resolved a claim for $80k several years prior but recently had received a disturbing phone call from his former client who informed him that Medicare refused to pay for a shoulder surgery on the basis that it was related to her accident. This former client was threatening a legal malpractice claim and a bar complaint because the trial attorney never advised the client that there was any possibility that Medicare could deny benefits. This type of scenario can be avoided by a conversation with the plaintiff about the MSP statute and properly considering Medicare’s future interests.
When discussing the potential for an MSA, one way it can be presented to the plaintiff is that there is a very high likelihood that Medicare will continue to pay for their ongoing, accident-related care post-settlement. However, if Medicare happens to audit their file, CMS does have the authority under the MSP statute, to deny making payments on their behalf, either temporarily or indefinitely until Medicare’s interests have been properly considered.
Will Medicare continue to pay for future injury-related care going forward? That is anyone’s best guess, but CMS has spent a tremendous amount of time and resources to ensure the Medicare trust fund gets protected. If the plaintiff agrees to set aside funds in a self-administered MSA account, they may opt to take a “wait and see” approach as it relates to medical care. If Medicare continues to pay for treatment, then the MSA account would simply function as a specialty savings account. If after a prolonged period, Medicare has been paying for their accident-related care, then they may elect to do something else with their MSA monies. If Medicare ever came back and said they should not have paid a bill or attempted to deny benefits, the plaintiff would still have the set-aside in place and would possibly get the benefit of reimbursing Medicare at the Medicare allowable rate. That would mean fewer dollars spent on medical care if they had paid directly at the time of the treatment[3]. If the plaintiff is proactively using the set-aside account, they are billed at the usual and customary fee schedule or the cash price (AKA the lowest rate they could negotiate with the provider).
Conclusion
An MSA potentially introduces another level of complexity to the file, which may contribute to unwanted delays in receiving the settlement funds. We frequently get involved in cases where the defendant insists on an MSA or the plaintiff is not even eligible for Medicare benefits. It is not always a cut-and-dry issue of whether the MSA is appropriate. Synergy has also seen firsthand on many occasions where there is agreement by the respective settlement parties to do a set-aside but there is a large discrepancy on the amount that should be earmarked for the MSA account.
Due to the foregoing, there needs to be greater education amongst the plaintiff and defense about the real potential implications of failing to adequately consider Medicare’s future interests. The settlement parties must be proactive regarding the potential for an LMSA: which party is going to handle the preparation of the MSA analysis, and how much, if any, is going to be set aside, based on all the facts of the case. Plaintiff’s counsel should insist on controlling the MSA process from start to finish. Many of our clients engage us to do a preliminary MSA analysis prior to sending out a demand package. That way, the MSA amount is already established as an element of damages that must be addressed before the claim can be resolved.
Synergy frequently is able to either eliminate the need for an MSA or we have been able to greatly reduce the MSA obligation. These savings are real dollars that go directly to the injury victim instead of Medicare. There are numerous ways to deal with Medicare Secondary Payer compliance without having to do a Medicare Set-Aside to ensure all parties are protected. Currently, there is no “one size fits all” approach to addressing LMSAs. All parties must make their best effort to protect Medicare’s interests.
Want more? Watch for our free Third Thursday Webinar ‘Liability MSAs: The Whole Truth and Nothing but the Truth‘
[1] Sally Stalcup, MSP Regional Coordinator (May 2011 Handout). See also, Charlotte Benson, Medicare Secondary Payer – Liability Insurance (Including Self-Insurance) Settlements, Judgments, Awards, or Other Payments and Future Medicals – INFORMATION, Centers for Medicare and Medicaid Services Memorandum, September 29, 2011.
[3] It should be noted that using the funds proactively from the set-aside account is always the best practice. CMS has also telegraphed that formal guidelines on LMSAs will get the benefit of the Medicare allowable rate which is not the case now.
Plaintiff firm settles with the U.S. Government for inadequately addressing and repaying Medicare Conditional Payments.
On June 18, 2018, the U.S. Department of Justice’s Attorney’s Office for the Eastern District of Pennsylvania announced a recently concluded settlement with a plaintiff firm involving the repayment of Medicare Conditional Payments. The government’s investigation arose under the Medicare Secondary Payer provisions of the Social Security Act, which authorizes Medicare, as a secondary payer, to make conditional payments for medical items or services under certain circumstances. When an injured person receives a settlement or judgment, Medicare regulations require entities who receive the settlement or judgment proceeds, such as the injured person’s attorney, to repay Medicare within 60 days for its conditional payments.
In their claim, the government alleged that Rosenbaum failed to submit timely payment for nine (9) of his cases between May 10, 2011, through March 2, 2017. Pursuant to the Medicare Secondary Payer provisions of the Social Security Act,42 U.S.C. $ 1395y, if Medicare does not receive timely repayment, these same regulations permit the government to recover the conditional payments from the injured person’s attorney and others who received the settlement or judgment proceeds.
Under the terms of the settlement agreement, Rosenbaum agreed to pay a lump sum of $28,000. Rosenbaum also agreed to (1) designate a person at the firm responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance. In addition, Rosenbaum acknowledged that any failure to submit timely repayment of Medicare secondary payer debt may result in liability for the wrongful retention of a government overpayment under the False Claims Act. You can review the settlement agreement HERE
In their press announcement, the United States Attorney’s Office for the Eastern District of Pennsylvania was clear.
“This settlement agreement should remind personal injury lawyers and others of their obligation to reimburse Medicare for conditional payments after receiving settlement or judgment proceeds for their clients. ‘When an attorney fails to reimburse Medicare, the United States can recover from the attorney—even if the attorney already transmitted the proceeds to the client,’ said U.S. Attorney William M. McSwain. ‘Congress enacted these rules to ensure timely repayment from responsible parties, and we intend to hold attorneys accountable for failing to make good on their obligations.’”
In addition to utilizing the Medicare Secondary Payer Act as a means to ensure compliance, the U.S. Attorney’s office reminds trial counsel of the applicability of the Federal False Claim Act. As part of the settlement agreement Rosenbaum acknowledged:
“…failure to submit timely repayment of Medicare Secondary Payer debts may result in its liability for the wrongful retention of a government overpayment pursuant to the False Claims Act, 31 U.S.C. $$ 3729(a)(1XD), (G), and other applicable law.”
A violation of the False Claims Act can result in triple damages, attorney’s fees, and fines (per each fraudulent claim).
Synergy’s Medicare services are designed to ensure that the trial attorney complies with obligations to Medicare while at the same time making sure the injury victim realizes as much of their settlement proceeds as possible. Our Medicare Audit & Verification Services will take the entire Medicare reporting and auditing process off your plate and allow you to focus on what you do best. This service includes the utilization of a little-known process allowing expedited disputing of unrelated charges and obtaining a final conditional payment amount before mediation.
Once settlement has been secured and a Final Demand obtained from Medicare, Synergy can continue working to add value to your case by attempting to secure a refund of the Final Demand payment from Medicare. To date, Synergy has obtained over $5,000,000 in refunds for our clients. Understanding the complex world of Medicare Conditional Payments is necessary to not only avoid potential pitfalls but also to maximize your client’s recovery.
If your firm is struggling to comply with the Medicare Secondary Payer Act, then turn to Synergy to see how we can reduce your workload, increase your firm’s efficiency, help avoid liability, and even secure additional settlement dollars for your client.
Attorney Fee Deferrals: The Time is Now to Defer Taxation of Contingent Legal Fees
Investing your fees in a pre-tax and tax-deferred attorney fee deferral program is a very smart way to plan for the future. Attorney fee deferral programs are created for a variety of reasons. Based upon your specific planning needs and objectives, you can defer your contingent legal fees to accomplish any of the following:
Cover future fixed costs of your law firm
Reduce present-day tax burdens by receiving income over time
Create “golden handcuffs” for key firm employees
Pay for future personal expenses (for example, college expenses for your children)
Retirement planning needs
Most attorneys use fee deferrals for traditional retirement planning purposes. Attorneys can utilize normal retirement plans as part of their overall portfolio. They can use IRAs, Roth IRAs, 401(k)s or other traditional options available to non-lawyers. These options are usually the starting point for a retirement savings plan. However, attorneys can utilize fee deferrals to uncap the amount they can invest pre-tax each year and eliminate early withdrawal penalties associated with traditional retirement plans.
The benefits and ways to use attorney fee deferrals are many. The problem is that attorneys generally do not leverage them the way they should. In an industry that creates billions of dollars of contingent legal fees each year, a very small percentage are deferred using attorney fee deferral programs. When it comes to retirement planning, the one mistake you cannot make is doing nothing at all. You must do something!
Choosing the right plan or deferral time frame isn’t as important as creating a systematic program of deferring fees and sticking with it. The program can be modified and new deferrals can account for changes that might become necessary in the future. If you defer too long, you can defer your next one for a shorter time frame. If you defer too short, you can defer your next fee for a longer period. If you think the rate of return in one program is low, you can utilize a different plan the next time. You can change the plans and adapt along the way. The one thing you cannot change is the missed opportunity if you fail to defer.
The power of deferral is a function of two variables: time and interest rate. The earlier you defer and the longer the duration, the more exponential growth you will experience. To illustrate, take a hypothetical 45 year old lawyer whose birthday is July 28. If he or she defers a $25,000 fee on October 1, 2018, here are the numeric differences at 5 year intervals using an assumed 5% interest rate:
Age 50: $31,803.43
Age 55: $40,815.21
Age 60: $52,380.55
Age 65: $67,223.04
As you can see, the compounding of interest starts to multiply very rapidly after 10 years. The 5% used above is a very conservative assumed interest rate. The average rate of return of the S&P 500 over the last 90 years is over 9%. Here is the same $25,000 fee deferral at 9% assumed interest rate:
Age 50: $38,529.18
Age 55: $60,624.42
Age 60: $94,448.88
Age 65: $147,876.70
The rate of return has a big impact but time is the equalizer. You must do something now to capitalize on the programs available. For my fellow Generation X readers, a study by Nationwide showed that 52% of us do not utilize a financial advisor or seek financial guidance. This percentage is very troubling when coupled with the fact that we are in our prime earning years. We are earning more money and not seeking or receiving any guidance. If you don’t have a plan – you are not going retire the way you want.
Financial stability is also a driver in your mental and physical health. According to the Gallup-Healthways Well Being Index and other studies, Americans with greater financial stability are in better physical and mental condition. Good health into your retirement years can create a longer income-generating life and decrease your overall health costs in retirement. Developing a plan is a win/win!
Fee Deferral must start today if you want to be prepared for when you retire. The decisions about plan design are less important and can be changed as you grow into your plan. The decision to defer a $25,000 fee is not going to have a major impact on your life in 20 years. However, if you wait 5 years to start it will be far less impactful. The Washington Post reported that the biggest regret for Americans was not saving for retirement. Do not become a statistic. Start your fee deferral program today.
Want more?
Watch our previously recorded Third Thursday Webinar.
For more information on the types of programs available to attorneys see our previous blog posts:
Protecting Supplemental Security Income and Medicaid Eligibility for Injury Victims: Special Needs Trusts
Introduction
The receipt of personal injury proceeds by someone who is disabled can cause ineligibility for means based tested government benefit programs. Medicaid[1] and SSI[2] are two such programs. However, there are planning devices that can be utilized to preserve eligibility for those who have become disabled due to injury. A special needs trust can be created to hold the recovery and preserve public benefits eligibility since assets held within a special needs trust are not a countable resource for purposes of Medicaid or SSI eligibility. The creation of special needs trusts is authorized by the Federal law.[3] A trust commonly referred to as (d)(4)(A) special needs trust, named after the Federal code section that authorizes its creation, is for those under the age of sixty-five.[4] Another type of trust typically referred to as a (d)(4)(C) pooled special needs trust may be created for those of any age.[5] Pooled trusts are economical and are a great solution for personal injury settlements (not just small settlements). When deciding upon which type of trust to use, it is important to understand the differences between the trusts in terms of startup costs, ongoing costs, and management. The different types of trusts for those on needs-based benefits will be discussed in greater detail below.
Public Benefit Programs Overview
There are two primary public benefit programs that are available to those who become disabled. The first is the Medicaid program and the intertwined Supplemental Security Income benefit. The second is the Medicare program and the related Social Security Disability Income/Retirement benefit. Both programs can be adversely impacted by a disabled injury victim’s receipt of a personal injury recovery. Understanding the basics of these programs and their differences is imperative to protecting the disabled client’s eligibility for these benefits.
Medicare and Social Security Disability Income (hereinafter SSDI) benefits are an entitlement and are not income or asset sensitive. Clients who meet Social Security’s definition of disability and have paid in enough quarters can receive disability benefits without regard to their financial situation.[6] The SSDI benefits program is funded by the workforce’s contribution to FICA (social security) or self-employment taxes. Workers earn credits based on their work history and a worker must have enough credits to get SSDI benefits should they become disabled. Medicare is a federal health insurance program. Medicare entitlement commences at age sixty-five or two years after the date of disability under Social Security’s definition.[7] Medicare coverage is available again without regard to the injury victim’s financial situation. Accordingly, a special needs trust (“SNT”) is not necessary to protect eligibility for these benefits. However, the MSP may necessitate the use of a Medicare Set Aside.
Medicaid and Supplemental Security Income (hereinafter SSI) are income and asset sensitive public benefits that require planning to preserve. In many states, one dollar of SSI benefits automatically provides Medicaid coverage. This is very important, as it is imperative in most situations to preserve some level of SSI benefits if Medicaid coverage is needed in the future. SSI is a cash assistance program administered by the Social Security Administration. It provides financial assistance to needy aged, blind, or disabled individuals. To receive SSI, the individual must be aged (sixty-five or older), blind or disabled[8] and be a U.S. citizen. The recipient must also meet the financial eligibility requirements.[9] Medicaid provides basic health care coverage for those who cannot afford it. It is a state and federally funded program run differently in each state. Eligibility requirements and services available vary by state. Medicaid can be used to supplement Medicare coverage if the client has both programs. For example, Medicaid can pay for prescription drugs as well as Medicare co-payments or deductibles. Because Medicaid and SSI are income and asset sensitive, creation of a special needs trust may be necessary when a settlement is reached for someone receiving either or both of these public benefits.
Special Needs Trusts – the differences
A special needs trust is a trust that can be created pursuant to Federal law whose corpus or any assets held in the trust do not count as resources for purposes of qualifying for Medicaid or SSI. Thus a personal injury recovery can be placed into an SNT so that the victim can continue to qualify for SSI and Medicaid. Federal law authorizes and regulates the creation of an SNT. The 1396p[10] provisions in the United States Code govern the creation and requirements for such trusts. First and foremost, a client must be disabled in order to create an SNT.[11] There are three primary types of trusts that may be created to hold a personal injury recovery and one type used when it isn’t the injury victim’s own assets, each with its own unique requirements and restrictions. First is the (d)(4)(A)[12] special needs trust which can be established only for those who are disabled and are under age 65. This trust is established with the personal injury victim’s recovery and is established for the victim’s own benefit. Second is a (d)(4)(C)[13] trust typically called a pooled trust that may be established with the disabled victim’s funds without regard to age. The third is a trust that can be utilized if an elderly client has too much income from Social Security or a pension to qualify for some Medicaid based nursing home assistance programs. This trust is authorized by the federal law under (d)(4)(B)[14] and is commonly referred to as a Miller Trust. Lastly, there is a third party[15] SNT which is funded and established by someone other than the personal injury victim (i.e., parent, grandparent, donations, etc. . .) for the benefit of the personal injury victim. The victim still must meet the definition of disability but there is no required payback of Medicaid at death as there is with a (d)(4)(A) or (d)(4)(C).
Since the pooled (d)(4)(C) trust and the (d)(4)(A) SNT are most commonly used with personal injury recoveries, I will focus on comparing these two types of trust. There are several significant differences between a (d)(4)(C) pooled trust and a (d)(4)(A) special needs trust. I will discuss these differences first starting with the (d)(4)(C) pooled trust. As a starting point, a disabled injury victim joins an already established pooled trust as there is no individually crafted trust document. There are four major requirements under Federal law necessary to establish a pooled trust. First, the trust must be established and managed by a Non-Profit.[16] Second, the trust must maintain separate accounts for each Beneficiary, but the funds are pooled for purposes of investment and management.[17] Third, each trust account must be established solely for the benefit of an individual who is disabled as defined by law, and it may only be established by that individual, the individual’s parent, grandparent, legal guardian, or a Court.[18] Fourth, any funds that remain in a Beneficiary’s account at that Beneficiary’s death must be retained by the Trust or used to reimburse the State Medicaid agency.[19]
As for the differences from a (d)(4)(A) special needs trust, there are four primary differences. First, a (d)(4)(A) special needs trust can only be created for those under age 65. However, a (d)(4)(C) pooled special needs trust has no such age restriction and can be created for someone of any age. Second, a Pooled Special Needs trust is not an individually crafted trust like a (d)(4)(A) special needs trust. Instead, a disabled individual joins a Pooled Trust and professional non-profit trustee pools the assets together for purposes of investment but each beneficiary of the trust has his or her own sub-account. Third, a pooled trust is managed by a not for profit entity who acts as trustee overseeing distributions of the money. The non-profit trustee may manage the money themselves or hire a separate money manager to oversee the investment of the trust assets. Fourth, at death, the non-profit trustee may retain whatever assets are left in the trust instead of repaying Medicaid for services they have provided as is the case with a (d)(4)(A) special needs trust.[20] By joining a pooled trust, a disabled aged injury victim can make a charitable donation to the non-profit who manages the pooled trust and avoid the repayment requirement found within the Federal law for (d)(4)(A) special needs trusts. Other than the aforementioned differences, it operates as any other special needs trust does with the same restrictions on the use of the trust assets.
With a (d)(4)(A) special needs trust, a trustee needs to be selected, unlike the pooled trust where it is automatically a non-profit entity. This provides some flexibility to the family or loved ones to have a hand in the selection of the trust company or bank acting as trustee. However, it is important to have a trustee experienced in dealing with needs-based government benefit eligibility requirements so that improper distributions are not made. Many banks and trust companies don’t want to administer special needs trusts under $1,000,000.00 in trust assets which can make it difficult to find the right trustee. Most pooled special needs trusts will accept any size trust and the non-profit is experienced in dealing with those that are receiving disability-based public benefits. With the (d)(4)(A), there are no startup costs except the legal fee to draft the trust which can vary greatly. The (d)(4)(C) pooled trusts typically have a one-time fee at inception which can range from $500 to $2,000 which is typically much cheaper than the cost of establishing a (d)(4)(A) special needs trust. Most trustees (pooled or (d)(4)(A)) will charge an ongoing annual fee which is typically a percentage of the trust assets. These fees vary between 1-3% depending on how much money is in the trust. A (d)(4)(A) will offer unlimited investment choices for the funds held in the trust while a (d)(4)(C) will have fewer investment choices.
The major limitation of all types of special needs trusts is that the assets held in trust can only be used for the sole benefit of the trust beneficiary. So in the case of a disabled injury victim that funds a pooled special needs trust with their personal injury recovery, those funds can only be used for their benefit. The disabled injury victim could not withdraw money and gift it to a charity or family. The purpose of the special needs trust is to retain Medicaid eligibility and use trust funds to meet the supplemental, or “special” needs of the beneficiary. These can be quite broad, however, and include things that improve health or comfort, non-Medicaid covered medical and dental expenses, trained medical assistance staff (24 hours or as needed), independent medical check-ups, medical equipment, supplies, programs of cognitive and visual training, respiratory care and rehabilitation (physical, occupational, speech, visual and cognitive), eyeglasses, transportation (including vehicle purchase), vehicle maintenance, insurance, essential dietary needs, and private nurses or other qualified caretakers. Also included are non-medical items, such as electronic equipment, vacations, movies, trips, travel to visit relatives or friends and other monetary requirements to enhance the client’s self-esteem, comfort or situation. The trust may generally pay for expenses that are not “food and shelter” which are part of the SSI disability benefit payment. However, even these items could be paid for with trust assets but SSI payments could be reduced or eliminated. This may not be problematic if the disabled injury victim qualifies for Medicaid without SSI eligibility. However, many states grant automatic Medicaid eligibility with SSI so one has to be careful about eliminating the SSI benefit.
Conclusion
Each type of trust discussed above has advantages and disadvantages. Some think of pooled trusts as only being appropriate for a smaller settlement which simply isn’t the case. Some think of pooled trusts just for the elderly which isn’t the case either. In the right case, the pooled trust is a great alternative option to a (d)(4)(A). Just the same, in some cases a (d)(4)(A) may be the best option because of the flexibility in selecting a trustee and the customizable money management options. In the end, though, a special needs trust be it pooled or a (d)(4)(A) must be considered because it will safeguard a disabled client’s recovery from dissipation and protect future eligibility for needs-based public benefits. Just as importantly, the different types of trusts and their advantages, as well as disadvantages, should be closely considered before making a decision since special needs trusts are irrevocable along with bringing substantial restrictions on how the money may be used. Creating a special needs trust for a disabled injury victim gives them the ability to enjoy the settlement proceeds while preserving critical health care coverage along with government cash assistance programs.
Synergy’s settlement consulting group is one of the premier plaintiffs focused on settlement planning firms offering services nationwide. Our settlement consulting firm assists injury victims and their attorneys in creating innovative settlement plans for personal injury and workers’ compensation case. We specialize in evaluating cases where clients are eligible for public benefits and advising on special needs trusts, settlement trusts, Medicare set-asides, and financial planning options for the personal injury settlement. We can help injury clients plan for the uncertainties they face by maximizing the use of funds available to the client from both the settlement itself and government benefits.
Watch our Third Thursday Webinar on the topic of Protecting Supplemental Security Income and Medicaid Eligibility for Injury Victims: Special Needs Trusts
[1] Medicaid is a needs-based public benefit that provides basic health care coverage for those who are financially eligible. The Medicaid program is federally and state-funded but administered on the state level. Services and eligibility requirements vary from state to state. The asset limit is $2,000 for single individuals and $3,000 for married couples for most Medicaid programs but the income limits vary by program and state.
[2] SSI or Supplemental Security Income, administered by the Social Security Administration, provides financial assistance to U.S. citizens who are sixty-five or older, blind or disabled. The recipient must also meet the financial eligibility requirements. 42 U.S.C. § 1382.
[6] While most often we deal with someone who has a disability, Social Security Disability also provides death benefits. Additionally, a child who became disabled before age 22 and has remained continuously disabled since age 18 may receive disability benefits based on the work history of a disabled, deceased or retired parent as long as the child is disabled and unmarried.
[7] SSDI beneficiaries receive Part A Medicare benefits which cover inpatient hospital services, home health, and hospice benefits. Part B benefits cover physician’s charges and SSDI beneficiaries may obtain coverage by paying a monthly premium. Part D provides coverage for most prescription drugs but it is a complicated system with a large co-pay called the donut hole.
[8] Disability is defined the same way as for Social Security Disability benefits which is that the disability must prevent any gainful activity (e.g. employment), last longer than 12 months, or be expected to result in death. If someone receives disability benefits from Social Security they automatically qualify as being disabled for purposes of SSI eligibility.
[9] An individual can only receive up to $552.00 per month ($829.00 for couples) and no more than $2,000 in countable resources.
[11] To be considered disabled for purposes of creating an SNT, the SNT beneficiary must meet the definition of disability for SSDI found at 42 U.S.C. § 1382c. 42 U.S.C. § 1382(c)(a)(3) states that “[A]n individual shall be considered to be disabled for purposes of this title … if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or … last for a continuous period of not less than twelve months (or in the case of a child under the age of 18, if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or … last for a continuous period of not less than 12 months).”
[12] 42 U.S.C. § 1396p (d)(4)(A) provides that a trust’s assets are not countable if it is “[a] trust containing the assets of an individual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.”
[13]42 U.S.C. § 1396p (d)(4)(C) provides that a trust’s assets are not countable if it is “[a] trust containing the assets of an individual who is disabled (as defined in section 1382c(a)(3) of this title) that meets the following conditions: (i) The trust is established and managed by a non-profit association. (ii) A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts. (iii) Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in section 1382c(a)(3) of this title) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court. (iv) To the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the State plan under this subchapter.”
[20] If the funds remaining in the trust at death are sufficient to repay Medicaid’s payback right in full, many pooled trusts will distribute some portion of the remaining monies to the trust beneficiary’s heirs. However, each pooled trust will have a different policy and the amount retained at death can vary greatly. It is very important to investigate how much is retained in this type of situation. Some trusts will only retain $5,000 while others may retain $50,000.
TOP 50 MOST UNREASONABLE HOSPITAL LIENS
Increasingly trial attorneys are discovering that settlement of a personal injury or wrongful death claim with the tortfeasor can be the beginning not the end of negotiations or even litigation. Once settlement funds are received, the often-protracted lien resolution process begins, especially hospital liens.
Hospitals typically demand reimbursement of their full, undiscounted list prices for medical items and services despite various limitations codified in most states’ lien statutes and ordinances. Hospitals often assert these liens rather than submitting claims to Medicare or Medicaid, and sometimes even “choose” to stand on lien rights rather than billing an injury victim’s private health insurance. Lien disputes must be resolved, and liens released, prior to full disbursement of settlement proceeds and in many cases, prior to attorneys’ fees and costs being collected. Indeed, in some states and circumstances, a significant reduction of large hospital liens is absolutely required if fees and costs are to be recovered at all and if an injury victim is to receive any of the proceeds of her or his tort action. In other jurisdictions, legal fees and costs, and in some instances Plaintiffs themselves, are protected by “equitable distribution” provisions, ensuring a fair split, with only a portion of settlement proceeds being attached by hospital liens regardless of how large the hospital’s bill or how small the settlement.
However, when an injured Plaintiff does not have health insurance to pay medical expenses, or if hospitals choose not to bill available public or private coverage, most states do offer statutory lien rights against tort recoveries.[1] But importantly, almost all such statutes and ordinances limit liens to “reasonable hospital charges,” denying hospitals the unbridled license to collect liens in whatever unreasonable amounts they wish.
Most hospitals use an internal list of codes and corresponding prices for thousands of billable services and items, called a “charge-master” price list, to populate an Itemized Bill with their respective charges for the care rendered to a patient. These chargemaster rates are unilaterally set with no regulatory oversight (in most states) and without regard for the actual costs incurred in rendering the services. Most hospitals chargemaster rates are several times their average costs, but some are as high as ten times costs, or even more. However, these are just total, or average cost to charge ratios. The cost to charge ratios for certain specific items and services, like CT Scans for example, can even be multiples HIGHER than these egregious average costs. For example, consider this excerpt from an actual Cost Report, detailing the costs of CT Scans rendered to a Plaintiff at a Florida hospital:
In this example, the hospital charged, filed a lien, and demanded payment in full of rates that were more than 44 times the hospital’s self-reported costs for these CT Scans.
Uninsured injury victims are among the very small fraction of the patient population asked to pay full chargemaster rates. Ironically, this segment of the patient population is among the only healthcare consumers represented individually by counsel in their bill negotiations. However, their individual (versus group) status, leaves them with the least bargaining power. This is so due to often lopsided lien statutes and ordinances, a knowledge gap with regards to the hospital’s internal cost data, in combination with ethical requirements that disputed lien amounts be held in Trust until negotiated or adjudicated.
No federal or state law, other than in Maryland and West Virginia, regulates hospital mark-ups. Accordingly, it is incumbent upon plaintiff’s lawyers to educate themselves on lien statutes and county lien ordinances, the cases interpreting them, as well as the state and federal case law regarding the reasonable value of healthcare. Additionally, obtaining access to a hospital’s self-reported cost data can provide invaluable ammunition for an attorney’s hospital lien negotiations.
A 2015 study published by HEALTH AFFAIRS examined the fifty hospitals whose charges and self-reported costs represent the highest mark-ups in the country.[2] The study used hospitals’ self-reported costs as compared to their chargemaster rates to arrive at “overall” or “total” cost to charge ratios for each hospital, but ratios for individual revenue centers within every hospital are also available. The study concluded that on average, hospitals charge 3.4 times their costs (an average markup which has nearly tripled from 1.35 in 1984 to 3.4 in 2012) but reaches a staggering average of 10.1 times cost (a more than 1,000% markup) for the top 50 hospitals analyzed in the study.[3]
Not surprisingly, the study also found these 50 hospitals with the highest markups are overwhelmingly a) for-profit hospitals, b) part of a “health system”, c) located in urban centers, and d) are not teaching hospitals.[4] The hospitals all fall within 13 states and 40% are in Florida. The highest charge-to-cost ratio, i.e., the two hospitals tied for the most egregious markups in the country, is Okaloosa Medical Center in Florida and Carepoint Health-Bayonne Hospital in New Jersey (each reporting charges averaging 12.6 times their costs, or a 12,600% average markup!). The top fifty hospitals identified and analyzed in the HEALTH AFFAIRS study are:
North Okaloosa Medical Center (FL)
Carepoint Health-Bayonne Hospital (NJ)
Bayfront Health Brooksville (FL)
Paul B Hall Regional Medical Center (KY)
Chestnut Hill Hospital (PA)
Gadsden Regional Medical Center (AL)
Heart of Florida Regional Medical Center (FL)
Orange Park Medical Center (FL)
Western Arizona Regional Medical Center (AZ)
Oak Hill Hospital (FL)
Texas General Hospital (TX)
Fort Walton Beach Medical Center FL)
Easton Hospital (PA)
Brookwood Medical Center (AL)
National Park Medical Center (AR)
Petersburg General Hospital (FL)
Crozer Chester Medical Center (PA)
Riverview Regional Medical Center (AL)
Regional Hospital of Jackson (TN)
Sebastian River Medical Center (FL)
Brandywine Hospital (PA)
Osceola Regional Medical Center (FL)
Decatur Morgan Hospital (AL)
Medical Center of Southeastern Oklahoma (OK)
Gulf Coast Regional Medical Center (FL)
South Bay Hospital (FL)
Fawcett Memorial Hospital (FL)
North Florida Regional Medical Center (FL)
Doctors Hospital of Manteca (CA)
Doctors Medical Center (CA)
Lawnwood Regional Medical Center & Heart Institute (FL)
Lakeway Regional Hospital (TN)
Brandon Regional Hospital (FL)
Hahnemann University Hospital (PA)
Phoenixville Hospital (PA)
Stringfellow Memorial Hospital (AL)
Lehigh Regional Medical Center (FL)
Southside Regional Medical Center (VA)
Twin Cities Hospital (FL)
Olympia Medical Center (CA)
Springs Memorial Hospital (SC)
Regional Medical Center Bayonet Point (FL)
Dallas Regional Medical Center (TX)
Laredo Medical Center (TX)
Bayfront Health Dade City (FL)
Pottstown Memorial Medical Center (PA)
Dyersburg Regional Medical Center (TN)
South Texas Health System (TX)
Kendall Regional Medical Center (FL)
Lake Granbury Medical Center (TX)
Reasonable hospital charges are the costs of rendering care plus a reasonable profit. Experts have opined that the reasonable profit which should be afforded to hospitals for the care they render is between 25% and 40%.[5]
Chargemaster rates bear no rational relationship to a hospital’s costs or to the amounts hospitals accept in arms-length transactions. Accordingly, “discounts” from full billed charges are illusory. Negotiating down from full billed charges using no data or information other than the artificially inflated chargemaster rates appearing on a bill and lien is never in your client’s best interests.
Synergy’s Medical Bill Clinic (SMBC) offers Hospital Cost Reports, using the same data sets relied upon in the HEALTH AFFAIRS study, but applying each itemized charge appearing on a specific client’s hospital bill to its respective revenue center’s cost-to-charge ratio reported under oath by that specific hospital, to estimate the actual cost of care for any given hospital visit. Your client’s itemized hospital bill is run against the hospital’s self-reported data and a detailed Cost Report generated, for your use in negotiations.
Using “cost of care” as the basis for negotiating the resolution of hospital liens transforms the discussion and yields dramatic results. Significant savings can more readily be negotiated if discussions are framed in terms of the profit a hospital needs to realize, from the treatment of your injured client. And to negotiate based on profits, you must know the costs. Much like knowing what a used car dealer paid for a car on its lot, SMBC’s Hospital Cost Reports “invert the argument,” allowing negotiations to be approached from a “cost-up” perspective, rather than groveling for a “discount” from unilaterally set, patently unreasonable chargemaster rates.
Click below to watch for our free Third Thursday Webinar on-demand:
Flipping the Script on Hospital Lien Reductions.
Almost all states have hospital lien statutes endowing hospitals with powerful lien rights against personal injury settlements. Because injury victims do not agree to prices in advance, and injury attorneys typically have no more than the hospital’s unilaterally set full billed charges to negotiate from, overpaying for hospital care is all too common. This presentation explains how to obtain and use hospital cost data to empower your lien negotiations, and why this data and argument is so relevant and effective under most states’ lien statutes and common law.
Presented by Synergy Settlement Services
[1]See Ala. Code § 35-11-370; Alaska Stat. § 34.35.450; Ariz. Rev. Stat. Ann. § 33-931; Ark. Code Ann. § 18-46-101; Cal. Civ. Code § 3045.1; Colo. Rev. Stat. Ann. § 38-27-101; Conn. Gen. Stat. Ann. § 49-73; Del. Code Ann. tit. 25, § 4301; D.C. Code § 40-201; Ga. Code Ann. § 44-14-470; Haw. Rev. Stat. § 507-4; Idaho Code Ann. § 45-701; 770 Ill. Comp. Stat. Ann. 23/1; Ind. Code Ann. § 32-33-4-1; Iowa Code Ann. § 582; Kan. Stat. Ann. § 65-406; La. Rev. Stat. Ann. § 9:4751; Me. Rev. Stat. tit. 10, § 3411; Md. Code Ann., Com. Law § 16-601; Mass. Gen. Laws Ann. ch. 111, § 70a; Minn. Stat. § 514.68; Mo. Ann. Stat. § 430.230; Neb. Rev. Stat. Ann. §§52-401 & 52-402; Nev. Rev. Stat. Ann. § 108.590; N.H. Rev. Stat. Ann. § 448-A:1; N.J. Stat. Ann § 2a:44-35; N.M. Stat. Ann. § 48-8-1; N.Y. Lien Law § 189; N.C. Gen. Stat. Ann. § 44-49; N.D. Cent. Code Ann. § 35-18-01; Okla. Stat. Ann. tit. 42 §§43 & 44; Or. Rev. Stat. Ann. § 87.555; R.I. Gen. Laws Ann.§§9-3-4 to 9-3-8; S.D. Codified Laws § 44-12-1; Tenn. Code Ann. § 29-22-101; Tex. Prop. Code Ann. § 55.001; Utah Code Ann. § 38-7-1; Vt. Stat. Ann. tit. 18, § 2253; Va. Code Ann. § 8.01-66.2; Wash. Rev. Code Ann. § 60.44.010; Wis. Stat. Ann. § 779.80.