Nevada Gambles on Online Poker

Posted on March 6, 2013 02:12 by Joseph M. Hanna

On February 21, 2013, the Nevada State Legislature passed Assembly Bill 114, a measure which allows state Governor Brian Sandoval to enter into contracts with other states permitting individuals to gamble in online poker games across state lines.

In theory, the law was passed to protect consumers and reduce the amount of illegal online gambling.  In pertinent part, the bill states: “A comprehensive regulatory structure, coupled with strict licensing standards, will ensure the protection of consumers, including minors and vulnerable persons, prevent fraud, guard against underage and problem gambling, avoid unauthorized use by persons located in jurisdictions that do not authorize interactive gaming and aid in law enforcement efforts.”  Later, it reads, “The state of Nevada leads the nation in gaming regulation and enforcement, such that the state … is uniquely positioned to develop an effective and comprehensive regulatory structure related to interactive gaming.”

The law effectively acts as an end-around certain laws prohibiting the practice – previously, the Nevada Gaming Commission was not allowed to issues licenses for operating online poker facilities without some form of permission by the federal government (i.e. through explicit legislation allowing the practice or by seeking approval from the U.S. Department of Justice).  Now, the commission can not only issue these licenses, but is given the authority to regulate and vary license renewal rates.  A.G. Burnett, chairman of the Nevada Gaming Board, believes that the move could be very profitable for the state – he estimates that a global market for licensing online poker games could amount to tens of billions of dollars.

As originally published at

Bookmark and Share


A Pennsylvania district court in CAMICO Mutual Insurance Co. v. Heffler, Radetich & Saitta, LLP (E.D. Pa. Jan. 28, 2013), refused to allow an insurer access to its insured’s defense file, holding that that the insurer was not a client of the insured’s defense counsel.  There, CAMICO Mutual Insurance Co. insured Heffler, Radetich & Saitta, L.L.P. (“Heffler”) which was sued for misappropriating class action settlement proceeds.  In response to the suit, Heffler selected its defense counsel, and CAMICO agreed to pay defense counsel’s fees.  

CAMICO filed this declaratory judgment action seeking a finding apparently regarding the available policy limits.  In connection therewith, CAMICO sought production of certain documents related to the underlying lawsuit.  Heffler refused, and CAMICO moved to compel.  CAMICO argued the application of exceptions to the attorney-client privilege, which the parties agreed would have otherwise protected the documents from production.

CAMICO relied on the co-client exception, which concerns where two or more clients share the same attorney.  CAMICO argued that the exception applied because defense counsel represented the joint interests of Heffler and CAMICO with respect to the underlying lawsuit.  The district court disagreed, relying on several authorities for the proposition that the insurer is not automatically a client of defense counsel, even when it funds its insured’s defense.  Further, the district court found that based on the factual record, CAMICO was not a client of defense counsel.  Therefore, the district court denied CAMICO’s motion.

Notably, the district court glossed over three important issues, which merit a brief discussion here:  (1) Heffler’s choice of its own defense counsel, (2) the common interest exception as an exception to the attorney-client privilege, and (3) CAMICO’s providing a defense to Heffler in the underlying lawsuit while seeking to litigate the extent of coverage.  

First, that Heffler chose its own defense counsel made the arguments in favor of the co-client exception peculiar.  If CAMICO had appointed defense counsel for Heffler, there probably would have been a better argument for a co-client exception.  

Second, several courts recognize the common interest doctrine as an exception to the attorney-client privilege.  E.g., Waste Management, Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill. 2d 178, 579 N.E.2d 322 (1991).   Although the district court asserted, without more, that CAMICO’s counsel did not share information with Heffler’s defense counsel, that is the point—CAMICO desired that defense counsel provide its counsel with otherwise privileged information.  This may have been a legitimate exception to the attorney-client privilege.   And, the Third Circuit and the Supreme Court of Pennsylvania have not taken a position on whether they will follow the Illinois Supreme Court’s interpretation of the common interest exception as set forth in Waste Management. 

Third and finally, that CAMICO was not seeking a declaration that it had no duty to defend or indemnify suggests that CAMICO and Heffler could have a common interest with respect to the underlying lawsuit.  Most courts that have criticized the Waste Management reject, in pertinent part, the concept that the insurer can seek to vindicate its disclaimer of coverage in a declaratory judgment action, yet have a common interest with its abandoned insured in the underlying tort action.  While subject to debate, that CAMICO was merely seeking to litigate the available limits suggests that the common interest exception may be available here.

Bookmark and Share


Two undeniable and interconnected facts: the U.S. housing market remains virtually stagnant and the number of lawsuits against real estate professionals is on the rise.  Existing home sales have dropped steadily since 2005.  There is a glut of product on the market, yet relatively few ready, willing and able buyers.  During the same period, delinquency and foreclosure rates have grown at an alarming rate.  Real estate professionals have been under considerable pressure to adapt to the conditions of this weak and sputtering market.  Many have not fared so well, as there has been a noticeable increase in lawsuits filed against agents, brokers, inspectors and other real estate professionals.

A Deeply Troubled Housing Market

There is no concrete formula to calculate when the American housing “bubble” burst.   What we do know is that the market was thriving in or around 2004 – 2007 then began to fizzle in the following years.  New home inventory, whether completed or under construction, grew at a gradual rate between 1997 and 2003.  Then, in or around January 2003, new home development skyrocketed.  By 2005, Americans built more new homes than they had since the late ‘70’s.  By most indicators, American real estate was booming in the summer months of 2005 and 2006.

Based on the vast number of new homes built at the turn of the century, it would be fair to assume that this development was catered to a growing number of eager would-be homeowners on the market for a new home.  However, the supply far exceeded the demand.  Every year beginning in 2005 through 2008 resulted in a significant drop in existing home sales compared to the prior year.  In other words, Americans were not purchasing homes at the rate those homes were built.  By way of example, Americans purchased approximately 100,000 less homes in June 2007 than they had in June 2006.  During that same stretch, however, developers continued to build new homes at a staggering rate.  As a result, the market could not support itself and soon collapsed. 

Following the peak in 2007 – 2008, new home inventory dropped dramatically.  That drop continued until today when new home inventory nationwide is significantly lower than that recorded in decades.  As a result of that rapid decline, new homeowners found themselves living in property valued far less than the price they recently paid.  Houses were rapidly losing value nationwide.  By some accounts over 10 percent of mortgaged homes in 2008 – 2009 were “underwater”; or, the mortgaged amount exceeded the actual value of the property.  Some suggest that the number of underwater homes continues to climb.

Sub-prime lending, of course, also played a significant role in the rise, and fall in the real estate market.  Sub-prime financing, or high-interest loans, is catered toward high-risk borrowers.  As the market reached its peak, sub-prime lending also increased.  Only two percent of mortgages issued in 2000 were classified as sub-prime compared to nearly 30 percent in 2006.  When the market was healthy, lenders were willing to take on more risk and perhaps were more creative with their lending agreements.  Less documentation, reduced or zero down-payment, low initial interest rates that ballooned over time and other strategies were developed to get buyers in the door.  The problem: aggressive lending programs invited Americans to purchase homes that they literally could not afford.  What naturally followed was rampant delinquency and foreclosure.

During the good years, between 1995 and mid-2006, approximately 5 percent of all active loans were considered “delinquent” and about 1 percent was the subject of foreclosure proceedings. The delinquency started to slowly climb in ‘06 and ‘07 then took off in 2008 to a high of nearly 10 percent  of all active loans as of year-end 2009.  Foreclosures also increased to over 4 percent of all active loans.  In 2008 and particularly 2009 – 2010, a higher percentage of delinquent properties resulted in foreclosure proceedings which, in turn, resulted in more short sales and REO properties.  A disproportionate number of these foreclosures were the result of sub-prime financing.  Of course, real estate professionals suffered as a result.

Increased Claims Against Real Estate Professionals

No doubt due, at least in part, to the distressed real estate market, claims against real estate professionals have risen over the past several years.  Moreover, the types of claims against real estate professionals have changed due to the peculiarities of the recent rise and dramatic fall of the market.  Agency issues, mortgage rescue scams, breach of fiduciary duty, fraud, negligence, breach of contract, and false representation issues are among the classes of claims on the rise against real estate professionals.  Why the rise in claims?  Here are several plausible explanations: 

Dabbling: Due to the reduced work-load, the real estate professional may be more willing to take on work outside of his/her comfort zone in order to generate revenue, including property or construction management or providing credit counseling or quasi-legal advice as opposed to selling real estate.
Loan and Investment Fraud: Knowingly or unwittingly modifying transactional documents to mischaracterize the nature of a purchase to obtain more favorable loan terms.  For example, denoting the purchase of a Bed and Breakfast as a “residential” property rather than an “income producing” property to generate better financing terms and, hence, close a deal.
Lay Offs:  The termination of the most experienced (and most highly compensated) staff in order to reduce expenses while retaining a staff less able to meet the needs of their customers.
Misrepresentation:   Even good faith reliance on a desperate seller’s disclosures, which turn out to be false, may result in a fraudulent or negligent misrepresentation claim against a real estate agent for allegedly ignoring red flags.
Referrals: A real estate professional may be subject to “negligent referral” liability by suggesting that her client retain the services of a particular vendor of some kind (e.g. inspector or title agency) of there are flubs on the job.
Unauthorized practice of law:  A real estate professional walks a fine line between representation of her client, providing general advice and performing a legal function especially with respect to the financial end of a transaction.  Should an agent provide advice outside of her scope of expertise, she may be subject to a claim of negligence, misrepresentation as well as the unauthorized practice of law.
Short sales and foreclosures:  Perhaps more than any other cause, the most significant increase in real estate disputes of late is due to the foreclosure crisis.  Short sales lead to difficulties regarding property condition disclosures.  For example, since short sales can be a lengthy process, the condition of a property may change while the transaction is pending.  Often, lenders and sales agents insist on listing short sales “as is” which may result in unreliable or non-existent disclosures and surprises following settlement.  These surprises all too often lead to lawsuits. Moreover, these sales are overlayed with transactional complexity beyond the ken of less experienced real estate professionals, a hazard in and of itself.  By way of example, short sales and foreclosures may force a real estate professional to address priorities amongst multiple liens or lending and listing problems as a result of the fact that prior owners are typically not involved in these transactions.

What Lies Ahead?

Signals of a recovery remain distant and weak.  Fiscal policy at the macroeconomic level suggests continued pessimism and caution, as seen in sustained historic low borrowing rates, but these low rates continue to be foiled by far more rigorous underwriting standards.  What one hears is: there’s plenty of money to borrow for people who don’t need it.  So, those who earn a living off of the sale of real estate will find themselves under stress for the foreseeable future.
Bookmark and Share


With the federal and many state governments facing record deficits, legislatures and various governmental agencies have set their sights on the practice of Independent Contractor Misclassification as a way of adding billions of dollars to their revenues. It has been estimated that the misclassification of employees as independent contractors will cost the U.S. Treasury Department an estimated $7 billion in lost payroll tax revenue over the next 10 years. Recent audits by the California Employment Development Department (EDD) netted $140 million in additional tax revenues from companies that had misclassified 70,000 workers. Since 2009, multiple states have passed laws giving labor enforcement agencies more authority in auditing and penalizing companies that illegally classify employees as independent contractors. And although federal legislation aimed at enforcing improper classification has stalled in Congress, the 2011 federal budget appropriated $25 million to aid the Department of Labor in identifying and attacking employee misclassification. Similarly, the Internal Revenue Service is implementing a tax audit program that has also been fully funded in President Obama’s budget.

As if employers did not have enough motivation to take a second look at their use of independent contractors, plaintiff attorneys throughout the country have hastened the need for transportation companies to examine their employment practices with extensive class action litigation that has resulted in high stake verdicts and settlements in federal and state jurisdictions. While litigation was costly to the companies involved, it has also helped trucking and logistics companies identify employment and payment practices that contributed to findings that drivers were misclassified as independent contractors. Some of these practices have helped clear up the blurry line distinguishing employees from independent contractors. Among the policies that have led judges and juries to find that misclassification had occurred include:

- Drivers being required to adhere to company standards set forth in a guidebook
- Company advertising that it maintains its own fleet of vehicles
- Employers controlling the workload of the drivers and not allowing substitution of drivers
- Companies giving specific instructions to their drivers as to how to load, transport and unload shipments
- The practice of prohibiting drivers from using their own vehicles to provide services to other companies
- Internal employer evaluation of the performance of its drivers
- The requirement the drivers use certain routes on pick-ups and deliveries, drive trucks with the company logo and wear company uniforms

In short, companies that exercise control over the payment, routes, manner of delivery, and the ability of their drivers to work for other companies were deemed to be misclassifying employees as independent contractors. As a result, expensive settlements were reached to provide the drivers with lost workers' compensation, overtime, minimum wage, and other benefits. Ironically though, transportation companies have arguably benefited from the aggressive plaintiff litigation tactics since it has forced the industry to develop policies and procedures consistent with delegating control over duties to the drivers and preserving the independent contractor relationship. These practices include

- Allowing the independent contractors the freedom to accept or turn down loads with the exception that drivers need to be shut down when they are close to exceeding federal hours of service limits
- Avoiding the use of driver uniforms, universal driver policies and the common painting or logos on vehicles (especially in fleets with a combination of an employee and independent contractor drivers)
- Requiring drivers to maintain their own insurance, special permits and training records
- The updating and revision of owner-operator and lease agreements to make sure that the language reflects the intent of the parties to enter into an independent contractor relationship
- Making an independent contractor responsible for specific charges in vehicle lease agreements by correctly disclosing the charges pursuant to 49 CFR 376.12(h)

In sum, the transportation employers are faced with a difficult task of delegating control to drivers in an industry that certainly requires compliance with federal regulations. This inherent tension makes it wise for transportation employers to conduct mock audits as to the practices identified above. If an internal audit does reveal misclassification, employers do have options to remedy the situation:

1. Use the Safe Harbor provision of Section 530 of the Internal Revenue Code to provide an administrative settlement program, which is still more employer-friendly than many of the newer state laws.

2. Reclassify contractors who are clearly employees or, in the alternative, restructure the relationship via the use of an owner-operator agreement and the policy changes identified above. 

3. Consult with local labor and employment attorneys who can assist in the creation and the management of the audit and provide ongoing guidance about the evolving legal landscape and the likelihood of further changes in federal and state law in this area.

Bookmark and Share


A Deterrent to Insurance Fraud

Posted on November 1, 2011 05:59 by Barry Zalma

Insurance fraud has been estimated to take between $80 billion and $300 billion a year from the insurance industry in the United States. Every state has a statute making insurance fraud a crime including the federal crimes of mail and wire fraud and the Racketeer Influenced and Corrupt Organization Act (RICO). RICO can also be a civil action which allows for treble damages or punitive damages.

Some insurer victims of insurance fraud have become proactive. In State Farm Mutual Automobile Insurance Company; State Farm Fire and v. Arnold Lincow, D.O.; Richard Mintz, D.O.; Steven Hirsh; 7622 Medical, No. 10-3087 (3d Cir. 09/16/2011) the Third Circuit dealt with an appeal from State Farm’s successful trial against some doctors and clinics who defrauded it and those it insured.


After a four-week jury trial plaintiff State Farm successfully convinced the jury that defendants, a number of health care providers (“Defendants”), engaged in various schemes to defraud State Farm by billing it for medical services that were either not provided or provided unnecessarily, and were illegal under RICO, fraud statutes, and common law fraud. Following trial, Defendants filed motions for judgment as a matter of law or, in the alternative, for a new trial or, in the alternative, to alter or amend the judgment. The District Court denied Defendants’ motions in their entirety.

Plaintiff alleged that Defendants were members of a conspiracy that sharply inflated the costs of medical care for car accident victims by prescribing tests and treatments, as well as prescriptions and medical equipment – whether medically necessary or not – and then routinely billed State Farm for additional treatments that were never provided. At trial, State Farm’s proof of Defendants’ fraud consisted of State Farm’s claim files and testimony of patients, physicians at Defendants’ medical facilities, Defendant physicians, and experts.
After a four-week trial, the jury awarded Plaintiff over $4 million against all Defendants jointly and severally, and individual Defendants were found liable for punitive damages totaling $11.4 million


The Third Circuit’s reviews a district court’s order granting or denying a motion for a new trial for abuse of discretion unless the court’s denial of the motion is based on the application of a legal precept, in which case the review is plenary. A new trial may be granted on the basis that a verdict was against the weight of the evidence only if a miscarriage of justice would occur if the verdict were to stand.

State Farm noted that RICO is distinct because the members of the association-in-fact enterprise include all the defendants, there is a complete identity between the enterprise and the defendants and, therefore, no distinctiveness among the defendants.  As the District Court noted and State Farm urged, the intracorporate conspiracy doctrine is not universally accepted, and it is questionable whether the Defendant’s version is completely accurate.

The defendants argued that State Farm failed to prove: (1) the elements of an association-in-fact enterprise; (2) that defendant Mintz conspired with the other Defendants to defraud, as § 1962(d) requires; (3) that Mintz’s actions proximately caused State Farm’s injuries; (4) that Mintz’s conduct fulfilled the elements of common law fraud; and (5) that Mintz’s conduct fulfilled the elements of statutory fraud under Pennsylvania law. The Third Circuit rejected all of Mintz’s claims to the contrary and held that the weight of the evidence supports the jury’s finding against Mintz and the other defendants. Therefore, the Third Circuit concluded that to let the verdict stand would not result in a miscarriage of justice.

The Third Circuit agreed with State Farm’s assertion that a violation of the Insurance Fraud statute is a civil tort and that, as the jury found and the District Court upheld, the Defendants together contributed to State Farm’s injuries and are thus jointly and severally liable. Moreover, as the District Court correctly noted, there is no requirement for district courts to instruct juries to award damages against each defendant separately and individually. Because State Farm elected to receive treble damages the Third Circuit had no reason to address the contention that the punitive damages award should be reduced.


Insurers who are the victims of fraud cannot rely on police agencies to investigate and prosecute perpetrators of insurance fraud. Prosecutions are few and far between. As readers of Zalma’s Insurance Fraud Letter, available FREE at, know prosecutions are increasing but are still anemic and those who are prosecuted and convicted usually receive minor punishments. By being proactive insurers can recover from the fraud perpetrators, like the doctors involved in this case, the insurer can recover what it lost, a bonus of three times the compensatory damages, and actually deter insurance fraud by hitting the perpetrators where it hurts them most, in their wallet.

It is time that insurers emulate the actions of State Farm and the few other insurers who are using civil suits to defeat insurance fraud by taking the profit out of the crime.

Bookmark and Share


Bad Mouthed Baby Doll

Posted on October 4, 2011 02:22 by Michael Walker

We must be doing our jobs as products defense attorneys if this is what the plaintiffs' bar is beginning to resort to. This story was featured in the ABA Journal and I found it quite amusing. It appears that Arkansas attorney, Joey McCutchen, is on a campaign against Toys R Us due to the store's decision to sell a talking children's doll that Mr. McCutchen claims speaks profanity. As part of his campaign against the store he has produced a YouTube video that he alleges is "proof" that the doll speaks the phrase "crazy b-tch", as opposed to the "realistic baby sounds" the doll is advertised to be able to make. The dolls were being sold in Arkansas, Alabama and Tennessee. In the video he urges Toys R Us to cease selling the dolls. While the article does not mention whether Mr. McCutchen plans on commencing suit, if the viewers' comments on the video provide insight as to a potential jury pool, let's hope for his sake he does not. 

Bookmark and Share


On August 4, 2001, the American Bar Association's standing committee on ethics and professional responsibility issued formal opinion 11-461 entitled, "Advising Clients Regarding Direct Contacts with Represented Persons."  As a general rule under ABA model rule 4.2, a lawyer cannot communicate with a person that a lawyer knows is represented by counsel without the opposing counsel's consent to the communication.  This rule extends to the use of an intermediary as an agent to communicate with the represented person.  However, it is also sometimes useful for litigants or parties to a transaction to be able to communicate with each other even though they have their own counsel.  In such instances, the parties maintain the right to communicate directly.  Sometimes these communications may require a lawyer's assistance.

Advising your clients on this point is considered proper.  The primary question addressed in the newly issued opinion is whether a lawyer can advise and assist a client in communicating directly with a represented party without violating Rule 4.2.  The ABA Committee felt that there was tension regarding the lawyer's ability to assist the client and effectuating direct client to client contact. 

The ABA Committee had previously stated in formal opinion 92-362 that a lawyer can ethically advise a client to communicate directly with a represented adversary to determine if the adverse party's lawyer had informed them of a settlement offer.   In the new opinion, the committee states directly that "the decision to communicate directly with a representative person may be the client's idea or the lawyer's.  Some decisions and opinions suggest the counsel may be violating the rules prohibiting communication with a representative party by encouraging or failing to discourage a client speaking directly to the other party."  A concern remained under existing rules that a lawyer might run afoul of Rule 4.2 by "scripting" or "masterminding" a client's communication with a represented person.   The Committee stated that "what constitutes 'scripting' or 'masterminding' the communication is not clear, but such a standard, if too stringently applied, would unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client."  The Committee concluded that without violating Rules 4.2 or 8.4, a lawyer can give assistance to a client regarding substantive communications with a represented party that could include what subjects are to be addressed regardless of whether the lawyer or the client proposes that the communication take place.  The lawyer may review, redraft and approve a letter or an outline for a conversation that the client wishes to use in the communications with the adversary.  The client may also request that the lawyer draft the basic terms and an agreement that he or she wishes to discuss with an adversary.   Nonetheless, some examples of overreaching do remain. 

The committee references several of them in its opinion stating that they include "assisting the client and securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.  To prevent such overreaching, a lawyer must, at a minimum advise her client to encourage the other party to consult with counsel before entering into allegations, making admissions or disclosing confidential information.  If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement."  

Bookmark and Share


Several very recent cases confirm the government’s resistance to have the conditional payment responsibility resolved through any means other than those it selects. All of the decisions involved the successful application of the failure to exhaust administrative remedies defense to the court’s jurisdiction.

In Braucher v. Swagat Group, 2011 WL 832512 (C.D.Ill.) the plaintiff filed a post settlement Motion to Adjudicate Medicare Lien and CMS moved to intervene. The court held that it had no subject matter jurisdiction to decide the Motion to Adjudicate Medicare Lien because the plaintiff had not exhausted the administrative process. In Alcorn v. Pepples, 2011 WL 773418 (W.D.Ky.) the plaintiff, pre-settlement, moved to join CMS as an indispensable party. The government objected because the plaintiff had not exhausted the administrative remedies set forth in the Medicare Act and the court agreed. In Portman v. Goodson, 2011 WL 773427 (W.D.Ky.) the plaintiff’s pre-settlement declaratory judgment action against CMS which sought to determine the repayment liability was dismissed for failure to exhaust administrative remedies. All three decisions, each decided between February 28, 2011 and March 3, 2011, relied upon the need for a plaintiff to comply with the post Demand Letter administrative process as being essential to jurisdiction over CMS in an MSP context.

Keep in mind, however, that all three decisions involved a plaintiff’s right to obtain subject matter jurisdiction before exhausting the administrative remedies set forth in 42 CFR §405.900. Similarly unsuccessful, attempts by the court to compel the attendance of Medicare representatives at settlement conferencei or to compel Medicare to intervene to assert a subrogation interestii  have all been rejected on principles of sovereign immunity.

We suggest that under circumstances in which the need to resolve the repayment obligation outweighs the costs an insurer/defendant may consider bringing an interpleader in which CMS is named as a defendant via the Secretary of the US Department of Health and Human Services, Kathleen Sebelius. At least two such actions have been successful.iii  Alternatively a declaratory judgment action might be appropriate. These may succeed because there appears to be no mechanism by which a settling defendant/insurer might be able to use, let alone exhaust, the administrative process and that such is not contemplated by the regulatory framework.iv   Accordingly, such actions may be analyzed and resolved differently by the court.


i Hoste v. Shanty Creek Management, Inc., 246 F. Supp.2d 784 ((W.D. Michigan, 2002)
ii Gray v. Doe,---F.Supp.2d---, 2010 WL 3199347 (E.D.Ky.)
iii See e.g. Farmers Ins. Exchange v. Forkey, 2010 WL 5477726 (D.Nev.) and Integon National Insurance Co. v. Berry, 2009 WL 424466 (W.D. North Carolina)
iv See 42 CFR §405.926(k) and Medicare Secondary Payer (MSP) Manual, Ch. 29, 200.C(11), stating that a determination that Medicare has a recovery against an entity such as  insurer or self-insurer that was or is responsible to make payment for services or items that were already reimbursed by Medicare  is not considered an “Initial Determination” subject to appeal. 42 CFR §405.906 specifically states that payment by a third party payer does not entitle that entity to party status with respect to the “Initial Determination” subject to appeal. Neither may the appeal right be assigned to the insurer. 42 CFR §405.912.


Bookmark and Share

Categories: General Litigation | Medicare

Actions: E-mail | Comments


Submit Blog

If you wish to submit a blog posting for DRI Today, send an email to with "Blog Post" in the subject line. Please include article title and any tags you would like to use for the post.

Search Blog

Recent Posts




Staff Login