Synergy’s blog brings you the settlement services industry’s foremost thought leadership InSights on matters of healthcare lien resolution, Medicare Secondary Payer compliance, government benefit preservation, settlement consulting and attorney fee deferral. Visit often to discover helpful InSights on important areas of settlement-related compliance issues or subscribe to our Synergy InSights here.
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.
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?
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. 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.
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.
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.
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!
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.
April 5, 2023
Jason D. Lazarus, , J.D., LL.M., CSSC, MSCC
In today’s fast-paced legal landscape, personal injury law firms face a multitude of challenges, from tracking liens to navigating the complexities of subrogation, reimbursement, and medical debts. The pressure to provide exceptional results to their clients while maintaining a competitive edge has prompted an increasing number of firms to consider developing strategic partnerships with expert lien resolution groups. In this blog post, we explore the advantages of working with an expert lien resolution group to enhance law firm efficiency and deliver optimal results for injury victims.
Efficiency and Results: The Key to Success
Partnering with an expert lien resolution group offers several compelling benefits, most notably in terms of efficiency and results. Personal injury law firms often find themselves at a disadvantage when dealing with government benefit health plans or aggressive recovery vendors, such as Medicare, Medicaid, FEHBA, and private recovery contractor groups like Rawlings, Equian, Optum, and Conduent. These massive corporations have vast resources and a singular focus: to collect as much money as possible from personal injury recoveries.
By partnering with an expert lien resolution group, a law firm can level the playing field, gaining access to a deep team of experts capable of challenging these sophisticated recovery vendors. The benefits of outsourcing lien resolution can be summarized in three key points:
- Enhance law firm efficiency by reducing operating expenses.
- Gain access to a deep team of experts to fight massive recovery vendors.
- Achieve the best possible resolution for the injury victim in terms of lien repayment!
Unraveling the Complexities of Lien Resolution
The world of lien resolution is far from simple, with each type of lien presenting unique challenges, nuances, and legal requirements. Health insurers have long recognized these complexities, turning to lien resolution and recovery contractor vendors to secure reimbursement on behalf of their plans. Personal injury attorneys often struggle to keep up with the ever-changing legal landscape, leaving them ill-equipped to fight back against these formidable opponents.
Outsourcing lien resolution to a specialized group provides law firms with a powerful ally, one that understands the inside baseball, capable of navigating the intricacies of various lien types as well as being adept with the latest rules and strategies associated with healthcare liens. This partnership minimizes operating expenses, frees up valuable time, and allows attorneys to focus on moving cases towards settlement or trial, instead of being bogged down in the frustrating red tape of hospital/provider, government, and private health plan lien resolution.
Delivering Outstanding Results for Injury Victims
Ultimately, the goal of any personal injury law firm is to secure the best possible outcome for their clients. By partnering with a lien resolution group, law firms can ensure that their clients get the steepest reduction when resolving liens and accordingly maximizing their net recovery. In turn, this leaves clients with a positive, lasting impression at the conclusion of their case. This client satisfaction can translate into repeat business and increased referrals, boosting the law firm’s reputation within the community.
The Ethical Aspect: A Win-Win Solution
Outsourcing lien resolution not only enhances efficiency and delivers optimal results, but also aligns with the ethical responsibilities of personal injury attorneys. By partnering with a well-qualified lien resolution group, law firms can ensure they are upholding their duty to provide the best possible representation to their clients, while also remaining compliant with the myriad of legal obligations and regulations governing lien resolution.
The decision to outsource lien resolution offers a win-win solution for law firms and their clients. By partnering with an expert lien resolution group, personal injury law firms can enhance efficiency, reduce operating expenses, gain access to a team of specialists, and secure the best possible results for their clients. The benefits of this strategic partnership cannot be overstated, providing a competitive edge, and ensuring the long-term success of the law firm as well as the satisfaction of the injury victims they represent.
Partner with Synergy here.
In this episode of Trial Lawyer View, host Jason D. Lazarus engages in a conversation with Joey Coleman, an accomplished author and professional speaker, to explore the intersection of law and entrepreneurship. Joey shares his valuable insights from his best-selling book, “Never Lose a Customer Again” which is highly acclaimed for its innovative approach to building stronger empathy with clients. The book outlines an eight-phase framework for customer experience, which can be revolutionary in the way law firms approach customer service and business practices.
Joey delves into the importance of personal injury lawyers using his framework to build a more robust connection with their clients. He emphasizes that understanding the client’s needs, desires, and preferences is crucial in providing them with the best experience possible. Joey’s approach is based on his belief that the client’s experience is everything in any business, including the legal industry. His framework is designed to ensure that each phase of the client’s experience is a positive one, leading to greater client retention and loyalty.
In addition to discussing the eight phases of customer experience, Jason and Joey also explore the role of technology in enhancing customer experience in the legal industry. They discuss how the use of technology can help law firms improve client retention and loyalty by streamlining processes, automating mundane tasks, and providing clients with a more personalized experience.
Moreover, Joey shares his new book, “Never Lose an Employee Again” which provides strategies for creating a more engaged and committed team. Jason and Joey discuss how law firms can implement these strategies to create a more positive work environment for employees, leading to increased productivity, job satisfaction, and overall success.
By tuning in to this episode, listeners can learn from Joey’s extensive experience and expertise in customer experience and employee engagement. They will gain valuable insights on how to transform their law firm’s customer experience and create a more engaged and committed team. Don’t miss this opportunity to learn from one of the industry’s most innovative and successful entrepreneurs.
Thanks for listening!
Learn more here.
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