February 2, 2021
Synergy handles Hospital Lien disputes nationally on behalf of Trial Lawyers and their injured clients. Synergy’s Michael Walrath, Esq., as the nation’s leading authority on the nuances of state-specific hospital lien law and the facts underlying the “reasonable value” of hospital care, was tapped to assist investigative reporter Jessica Silver-Greenberg in her research for the New York Times expose of hospital lien practices. The article, entitled How Rich Hospitals Profit From Patients in Car Crashes, was published on February 1st, 2021, and can be viewed in its entirety here.
As this explosive report details, hospitals routinely forgo health insurance for auto accident patients, instead using liens to enhance their reimbursement and usurp money otherwise intended to compensate injury victims for lost wages, pain, and suffering, and other non-medical-special damages.
Cited examples include Monica Smith, a Medicaid recipient, whose Medicaid reimbursement would have been $2,500, but Parkview Regional Medical Center in Indiana instead levied a hospital lien for $12,856.00. While not illegal in most states, the practice effectively diverts settlement proceeds from injury victims in need, to overreaching hospitals intent on maximizing profits. A memo surfaced in 2014 litigation in Washington State, which estimated the practice generated an additional $10 million annually, to the facility.
As the article points out, lien practices are so lucrative, many hospital systems use specialized lien and debt collection companies to enhance their receivables. Post-settlement lien disputes are sunk costs on a file, further disincentivizing injury lawyers, who are already at a disadvantage for lack of internal hospital data. Synergy’s Medical Bill Clinic is available to level the playing field by leveraging specialized systems, data sets, and hospital billing experts to ensure your clients do not pay more than the reasonable value of the care they receive. Learn more about Synergy’s Medical Bill Clinic here.
September 22, 2020
I’m excited to announce that my new book, The Art of Settlement, officially launches today.
What is The Art of Settlement? The regulatory landscape of the personal injury lawyer has become exceedingly complicated. Assisting clients with catastrophic disabilities now exposes you personally to government recovery actions, damages, and malpractice risks. It’s vital that your personal injury practice has a comprehensive plan for compliance when resolving cases if you want to protect yourself—and protect your clients.
In The Art of Settlement, I’ll help you navigate the complexities at settlement for catastrophic claims and provide you with the best course of action for each potential issue. I’ll show you how to address important ethical issues, navigate settlement planning concerns, preserve government benefits, and employ lien reduction strategies. You’ll gain insightful, essential perspective on how to deal with Medicare compliance, fight ERISA liens, and leverage qualified settlement funds.
What’s my give? My publisher has agreed to discount the Kindle version of my book from its full list price down to $0.99 for the first week of launch so I can share it with friends and family inexpensively. I’d love to offer you a discounted copy! For those of you without Kindles, the paperback and hardcover versions are also available.
What’s my ask? Do NOT feel obligated, but if you have an active Amazon account, I’d be extremely grateful if you could buy the book and leave a review. Reviews are the most important factor in how many new readers the book is able to reach, and each one makes a real difference.
Thank you in advance for your support. I truly appreciate it.
All the best,
Jason D. Lazarus, J.D., LL.M., MSCC, CSSC
CEO, Synergy Settlement Services
Author of Art of Settlement
July 1, 2020
By Jason D. Lazarus, J.D., LL.M., MSCC, CSSC
Late in the fall of 2018, the Office of Management and Budget issued a notification from the Department of Health and Human Services which oversees CMS of a proposed rule related to the Medicare Secondary Payer Act (MSP). The abstract of the rule says it “would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund.” It indicated that the rule was “economically significant” and the basis for the legal authority was 42 U.S.C. 1396y(b). The final rule was expected sometime in 2019 but didn’t come.
More recently, in the spring of 2020, we got a new notification. It was an update to the previous notification and indicates that the proposed rule “would clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services related to such settlements, judgments, awards, or other payments.” In the notice, it indicates that the proposed rules will be revealed in August of 2020. Whether that truly means we will have something before the end of August is anyone’s guess, but it does confirm CMS’s intent to push the agenda forward with regulations. When we do get proposed rules, that is only the first step in the process towards final rules. In the interim, things have not changed, and the same problems still exist.
That problem is that Medicare set-asides (MSAs) are not required by a federal statute even in Workers’ Compensation cases where they are commonplace. There are no regulations, at this time, related to MSAs either. Instead, CMS has intricate “guidelines” and “FAQs” on their website for nearly every aspect of set-asides from submission to administration. There are only limited guidelines for liability settlements involving Medicare beneficiaries. Without codification of set-asides, there are no clear-cut appellate procedures from arbitrary CMS decisions and no definitive rules one can count on as it relates to MSAs. While there is no legal requirement that an MSA be created, the failure to do so may result in Medicare refusing to pay for future medical expenses related to the injury until the entire settlement is exhausted. There has been a slow progression towards a CMS policy of creating set-asides in liability settlements over the last seven years as a result of the Medicare Medicaid SCHIP Extension Act’s passage.
This creates a difficult situation for Medicare beneficiary injury victims and contingent liability for legal practitioners involved in litigation involving physical injuries to Medicare beneficiaries given the uncertainty surrounding the need to create a set-aside.
If you represent a Medicare beneficiary, you must determine if future medicals have been funded and if so, advise the client regarding the legal implications of the MSP related to futures. The easiest way to remember the process once you have identified someone as a Medicare beneficiary or someone with the reasonable expectation of becoming Medicare eligible within 30 months is by the acronym “CAD”. The “C” stands for consult with competent experts who can help deal with these complicated issues. The “A” stands for advise/educate the client about the MSP implications related to future medical. The “D” stands for document what you did in relation to the MSP. If the client decides that they do not want an MSA or to set aside anything, a choice they may make, then document the education they received about the issue with them signing an acknowledgement. If they elect to do an MSA analysis, hire a company to do the analysis so that they can help you document your file properly and close it compliantly.
If you represent a client who is Medicare eligible and is treating for their injuries, I recommend a Medicare Expert Case Evaluation (MECE) when you resolve the case. As part of the MECE, a Synergy Medicare Compliance expert will consult with your client regarding Medicare future interest protection mechanisms and the risk of doing nothing. After being advised, your client can make an informed decision about what they would like to do, and you can document your file accordingly.
For $1,000.00, the MECE service includes:
- Unlimited client consultation
- Template communications to your client
- Customized acknowledgement form to document your file
- Settlement documentation consultation for MSP compliance
If an MSA allocation report is desired after consultation with the client, the cost of the MECE is applied towards the $2,500 charge for a Medicare Set Aside allocation report.
The whole system is flawed when it comes to Medicare. You take all the risks, you do all the work, you bear all the costs and after you win then you must address the Medicare Secondary Payer Act. Synergy flips that paradigm on its head and fixes the broken system. Our team will create a comprehensive plan to allow you to close your file compliantly by addressing Medicare’s “future interest”, freeing you up to take on the next battle. You can focus on what you do best and everyone wins.
If you have a client who is Medicare eligible that is going to require future accident-related care, a Medicare Set-Aside should be considered and a MECE completed. There are numerous ways to deal with Medicare Secondary Payer compliance (without a set-aside) to ensure both your firm, as well as your clients are protected. It just requires expert analysis with Synergy’s help.
 The MMSEA created a mandatory insurer reporting requirement which tasks defendants/insurers with reporting settlements involving Medicare beneficiaries to Medicare. The reporting requirement requires settlements of $2,000 or greater to be reported as of 10/1/13. Medicare, Medicaid, and SCHIP Extension Act of 2007 (P.L. 110-173). This Act was passed by the House on December 19, 2007, and by a voice vote in the Senate on December 18, 2007.
If you take nothing else from this, when you refer a case to another firm you need to make sure you have 3 things: 1) A written fee agreement; 2) A copy of the lawyer’s malpractice insurance policy declarations and 3) Proof that the lawyer has engaged Synergy to resolve Medicare Conditional Payment obligations. The government takes its reimbursement rights seriously and is willing to pursue trial lawyers who ignore Medicare’s interest.
To learn more download at the link below.
March 24, 2020
Now, more than ever, proper settlement planning is critical for disabled clients. Protecting their recovery should be top of mind and a high priority given the turbulence in our global markets. There are always going to be ups and downs in the financial markets. The real estate market has crashed. The tech market has crashed. The oil markets have crashed. There will be ups and downs in everyone’s personal financial situation. You need a new car, roof or the AC goes out. Now we have a virus that is creating an economic and social shutdown of our way of life for the foreseeable future.
Our current financial crisis illustrates how critical it is for you to bring in a settlement planner to speak with your clients. Your clients do not have to plan for their settlement, but they do deserve to speak with someone that has the education, experience, and knowledge to show them the options. Education about ways to protect the recovery from rapid dissipation and insulation from the market are exceedingly important.
If you have a client that settles their case, they need to know the ramifications of their financial decisions. The two questions that always need to be addressed immediately before accepting any settlement are:
- Can I take any portion of my settlement in cash or will that impact my public benefits?
- Can I utilize a structured settlement for a portion of my settlement?
Those two questions have to be asked and answered on every case before anything is finalized. The answers to those questions will dictate the form of the settlement and set the stage for proper planning. Not asking those questions, could cause irreparable harm to the client.
As part of the planning process, it is important to meet with a qualified settlement planner to help your client create a visual picture of their future. They need to do some basic budgeting. Questions need to be asked like: How much do I NEED now and ongoing? What do I WANT now and ongoing? What public benefits are necessary for my future?
If a settlement planner can get a picture of the client’s needs and wants, solutions can be created to provide for as much of those as possible. By making sure critical questions get asked and simple budgeting is done, creating a rock-solid settlement plan becomes much easier. There are many benefits to crating a settlement plan which includes a structured settlement and public benefit preservation vehicles.
Structured Settlement Benefits
- Peace of mind (Guarantee and Fixed): The periodic payment schedule is outlined in the settlement documents and does not change with the market fluctuations.
- Creditor Protection: Future periodic payments are not subject to creditors.
- Lifetime Income: Annuities are one of the only financial services products that will pay you for the rest of your life (regardless of how long you live).
- Tax-Free Payments: All payments received from a traditional structured settlement are tax-free.
- Dollar-Cost Averaging Tool: A structure can create monthly, quarterly or annual income payable to you over a period certain. These funds can be used to invest in other asset classes over time to lower the risk of a single investment date.
Public Benefit Preservation Benefits
Income: Public Benefit programs from Social Security can continue to provide income for your lifetime.
Medical Coverage: Programs through Medicaid and Medicare can provide health insurance benefits at no or a lower cost vs private coverage.
Years upon years of settlement planning experience teaches us inevitably there are clients who need and would benefit from a structured settlement and/or trust to preserve benefits. All too frequently clients decide to take a cash settlement only to regret their decisions and want to go back on their public benefits they lost. At the same time, clients can structure too much of their settlement and need cash. It is critical to make sure that clients have the right allocation of their settlement to upfront cash, structured settlement, and trust. This blend, crafted at the time of settlement, is a critical foundation for their future. Proper settlement planning will impact how easily a disabled client transitions from litigation to life.
January 17, 2020
In Publix Super Markets, Inc. v. Figareau et. al., Case No. 8:19-cv-545, 2019 WL 6311160 (M.D. Fla. Nov. 25, 2019), the Court permitted an ERISA self-funded health plan’s equitable lien claim to attach to the plaintiff attorney. This case is further evidence that using Synergy Settlement’s Lien Resolution service can be essential to fully resolve asserted liens and ensure that you, your client and your firm are protected.
Publix provides a health benefit plan that is ERISA self-funded (“The Plan”). Figareau and Paul are the parents of a child who sustained a birth injury. The Plan paid $88,846.39 in related medical expenses. The case settled and the “funds are housed in a designated structured settlement account established by [Paul and Figareau].”
Publix initiated an action against Figareau and Paul, as well as their attorney and the attorney’s firm (“Attorney Defendants”) seeking to obtain appropriate equitable relief to enforce the Plan’s reimbursement provisions. Specifically, Publix sought reimbursement of the settlement funds and equitable relief in the form of a constructive trust or equitable lien on the amounts held or controlled by the defendants as a result of the settlement of the underlying case.
Defendants argued numerous points including the fact that the attorney and law firm are not parties to the Plan and therefore the claims against them are not cognizable. The Court found that the claim against the Attorney Defendants are cognizable because they hold the settlement proceeds in trust or otherwise possess the funds. Specifically, a lien or constructive trust on funds in possession of the Attorney Defendants is imposed by the express terms of the Plan. The Court reiterated earlier decisions where it was stated that “the most important consideration is not the identity of the defendant, but rather that the settlement proceeds are still intact, and thus constitute an identifiable res that can be restored to its rightful recipient.”
Another point argued by the defendants is that this action “creates an impermissible conflict of interest between [the Attorney Defendants], the minor child, and Publix,” and that “[i]t would be unethical . . . for [the Attorney Defendants] to represent Publix in a contingency fee contract and protect the interest of Publix over the minor.” The Court found that “the funds held in trust by the Attorney Defendants are, as alleged, subject to a lien by agreement under the Plan. Their possession of the funds does not create a conflict of interest.”
It’s always best for lien resolution to not reach this level. Synergy is your partner to bring these matters to conclusion, limiting your liability and giving you peace of mind.
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The Synergy Settlements team will work diligently to ensure your case gets the attention it deserves. Contact one of our legal experts and get a professional review of your case today.