In Humana v. Farmers Texas County Mutual Insurance Company, et al, No. 13-CV-611-LY (W.D. Texas, September 24, 2014) the court denied the defendants’ motion to dismiss and allowed Humana, a Medicare Advantage Organization (“MAO”), to pursue a private cause of action for double damages under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b).  In doing so, the court rejected the magistrate judge’s recommendation to grant the defendants’ motion to dismiss Humana’s claims.  The court noted that in In re Avandia Mktg., 685 F.3d 353 (3d Cir. 2012), the Third Circuit addressed the same issue and held that a Medicare Advantage Organization, such as Humana, may bring a private cause of action against a primary plan under the secondary provision of the Act. Acknowledging that the Fifth Circuit had not addressed the issue, the court aligned itself with the reasoning of the Avandia opinion and concluded that the plan text of the Medicare Secondary Payer’s private cause of action provision unambiguously affords Human with a private right of action.  While there continues to be uncertainty about the nature and extent of the recovery rights of MAOs, this decision brings us closer to resolution of the issue in Texas federal courts and ultimately in the Fifth Circuit. 

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Effective today, Medicare has three years to claim reimbursement for its subscribers  medical costs. This statute of limitations is mandated by The Strengthening Medicare and Repaying Taxpayers (or SMART) Act1 which became law early this year. Until now, there had been uncertainty on the timeframe in which Medicare could seek to recoup costs for which another party accepted responsibility (through settlement, judgment, award, or other payment). The United States now has a three year window to file suit in an action to seek repayment, measured from the date of reporting to the Centers for Medicare & Medicaid Services (CMS) as part of the Mandatory Insurer Reporting rules following Section 111 of the Medicare Medicaid SCHIP Extension Act of 2007.2

Overall, the SMART Act aims to shorten the Medicare reimbursement timeline and create further clarity concerning the process. But, the law's full impact won't be known until its provisions are implemented over the course of the next 18 months.
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Categories: Medicare | MSP

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We’re halfway through 2013, and while we await government regulations on the parameters for funding future medical treatment in cases involving Medicare beneficiaries, there have been several key court decisions this year on the issue. The upcoming guidelines are expected to pinpoint the circumstances in which a special account needs to be established – or dollars set aside – for Medicare’s funding of future medical treatment stemming from an injury for which a Medicare beneficiary received a settlement or damage award. These accounts are known as Medicare Set Asides (MSAs).

One recent federal court ruling shows the ramifications of settling parties’ failure to agree on the allocation of future medical expenses in liability cases, while another opinion clarifies when Medicare’s recovery right (including the cost of future medical care) ripens. Finally, a third decision highlights the circumstances when an MSA is not warranted.

Early v. Carnival
In February, a federal court in Florida held that the issue of whether an MSA is needed is an essential term of the settlement, to which the parties must agree.[i] The case – Early v. Carnival Corporation – involved injuries a cruise ship passenger allegedly suffered. At mediation, the parties agreed that the defendant would pay an undisclosed sum to the plaintiff, but notably, the parties could not agree on whether a MSA was needed, and asked the Court to determine that issue. The Court declined to do so – holding that settlements must be “mutually agreeable on every essential term,” and that the parties had failed to reach an agreement on the essential term of whether an MSA was needed. Accordingly, the Court found that because the MSA issue was undecided, the parties had failed to reach a settlement.  

In its ruling the Court distinguished this case from others where the parties had asked the Court to enforce a settlement agreement. Here, the parties asked the Court to assist with a critical term of a potential settlement agreement. The Court noted that it could not draft an essential term of the agreement, nor issue an advisory opinion on the matter.

Bottom Line: This case demonstrates how the MSA issue can derail a settlement. Until the Centers for Medicare and Medicaid Services issue protocols for MSAs in liability cases, the best approach is for counsel to discuss this issue and ensure everyone involved is on the same page.

Weinstein v. Sebelius 
In the second case, Weinstein v. Sebelius,[ii] the U.S. District Court for the Eastern District of Pennsylvania found that the plaintiff owed CMS nearly 20 times the amount a court-approved settlement allocated for Medicare’s reimbursement. Medicare had incurred $58,393.57 in healthcare costs for the treatment of plaintiff’s husband, and plaintiff subsequently obtained a medical malpractice settlement in state court linked to her husband’s care. Plaintiff sought to reimburse Medicare $2,922.34, and a state court approved specific language to that effect in the settlement agreement. After CMS issued a demand for the higher amount, a federal court ultimately reviewed Medicare’s claimed lien, and found that the plaintiff did owe Medicare the full amount ($58,393.57) as reimbursement for its funding of her husband’s medical care.

In its ruling, the Court noted that the lower court’s approval of the settlement agreement was not based on the merits of the case. The opinion stated that if a Medicare beneficiary seeks medical expenses as damages in a lawsuit, and the case ultimately settles, the settlement itself establishes the third party’s responsibility for those medical expenses, regardless of whether that party admitted liability.

Bottom Line: When a plaintiff seeks damages which include past and future medical expenses, the initial pleading can trigger Medicare’s broad and general right of recovery for those payments.

Sterrett v. Klebart
The third case, Sterrett v. Klebart,[iii] stems from a state court in Connecticut and establishes that if parties can determine that no settlement proceeds are payable or available for a claimant’s Medicare-covered future medical expenses, then an MSA is not needed. The parties settled a slip-and-fall claim, and in reaching that agreement, determined that the the settlement proceeds did not address future medical expenses otherwise covered by Medicare. The parties then asked the Court to determine that they had – per the Medicare Secondary Payer Act – reasonably considered Medicare’s future interest, although they’d concluded an MSA was not warranted.  

The Court determined that the parties had adequately considered Medicare’s interests as they had properly evaluated the terms of the settlement. The Court held that the settlement proceeds did not represent compensation for Medicare’s future medical costs, but for the plaintiff’s noneconomic damages as well as some “modest allocation for future medical expenses arising out of the possible need for home health aides” which Medicare does not typically cover.

In its opinion, the Court stated that while the plaintiff would incur future medical expenses payable by Medicare post-settlement, the settlement funds did not contain sufficient proceeds to pay for such future medical expenses.

Bottom Line: This case strikes at the heart of MSA analysis: how many dollars out of one undifferentiated sum are really being paid for future medical expenses as compared to all other damage components pled and released, past medical expenses, and expected out-of-pocket medical costs?

At the Garretson Resolution Group, we urge attorneys to determine a claimant’s Medicare enrollment status as soon as claims are filed. Then as the case progresses, if the claimant is a Medicare beneficiary or likely to become one within 30 months of the settlement date, counsel can evaluate whether Medicare has funded or will need to fund any medical care at issue. This process enables the parties to establish how much, if any, money is needed to reimburse Medicare for past care, and whether any funds exist to fund future care. Overall, attorneys should implement a consistent procedure for handling liability cases involving Medicare beneficiaries, in order to ensure they’re satisfying Medicare’s reimbursement rights. If you have any questions, please contact John Cattie ( at (704) 559-4300.


[i]Early v. Carnival Corporation, 2013 WL 462580 (S.D. Fla. February 7, 2013).
[ii] Weinstein v. Sebelius, 2013 WL 1187052 (E.D. Pa. February 13, 2013). See also 42 Pa. C.S. §§8301, 8302.
[iii] Sterrett v. Klebart, 2013 Conn.Super. LEXIS 245 (filed February 5, 2013)(unreported).

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The Future of Long-Term Care

Posted on June 20, 2013 03:35 by Sarah E. Lovequist

There is a common shorthand for the general public’s perception about long-term care, frequently referred to as the "70-70-70" problem:

70 percent of the people over age 65 will need some form of long-term care during their remaining lives.
70 percent of the public does not believe they will ever need such care.
70 percent of the public thinks that if they did need such care, it is already covered by their Medicare insurance. Medicare covers only acute short-term care needs, not long-term care.

Despite this demand, many health care facilities across the nation are financially strapped, leading to a size gap between what facilities have and what is needed to ensure adequate nurse staffing in long-term care facilities; ensuring a labor shortage does not negatively affect a facility’s standard of care is a complex and daily balancing act. This gap and how it affects a facility’s standard of care may be the crux of a family’s and/or resident’s lawsuit against a nursing home or assisted living facility. As a result, understanding both the public perception and how to strategize against it is one of the keys to successfully defending long-term care cases.

In order to glean the most up-to-date perspective on avoiding and defending long-term care claims and litigation, consider heading to Scottsdale, Arizona this September to attend DRI’s Nursing Home/ALF Seminar. Presentations from industry leaders will focus on, among other topics, MDS 3.0 and staffing measures, standard of care in long-term care cases, and the top 10 drivers of aging services claims. Registration is now open, click here for more information.

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Recently, the U.S. District Court for the Western District of Louisiana issued the Benoit v. Neustrom opinion. 2013 U.S. Dist. LEXIS 55971 (decided April 17, 2013). Here, the parties sought approval that CMS' future interest could be fully satisfied by funding an MSA for less than full value of the Claimant's future medicals. The parties agreed to resolve a liability claim for a gross amount of $100,000. Defendant had an MSA allocation prepared, which concluded that the Claimant would be expected to incur between $277,758.62 to $333,267.02 in future injury-related care otherwise covered by Medicare. Additionally, Medicare had made conditional payments on the Claimant’s behalf totaling $2,777.88. 

The Court, having previous experience addressing MSA related questions, looked to the 11th Circuit decision in Bradley v. Sebelius for guidance. 621 F.3d 1330 (11th Cir. 2010).  Bradley was an allocation case under the MSP with respect to conditional payments, holding that CMS must respect a judicial allocation based on the merits of the case. Applying the logic that CMS’ recovery can be fully satisfied by identifying that portion of an award which is intended to compensate a Claimant for medical expenses (past and future), the Court agreed with the parties in that an MSA did not need to be fully funded to satisfy Medicare’s interest.  It did, however, disagree with respect to the dollar amount of the MSA. 

Instead of following a strict pro rata approach advocated by the Claimant, the Court instead calculated a ratio of the net settlement proceeds (after costs of procurement and conditional payments by CMS had been subtracted from the gross award of $100,000) against the mean MSA figure. That ratio of 18.2% was then applied to the net proceeds, leading the Court to conclude that an MSA totaling $10,138 would be an appropriate amount with which to satisfy Medicare’s future interest.

This case is yet another example in 2013 (building on recent cases such as Early and Sterrett) depicting that MSA issues cannot be ignored simply because the claim being resolved is a liability claim instead of a workers’ compensation claim.  While the issue must be addressed, the opinions also display that a more sophisticated methodology must be applied which takes into account the inherent differences between liability and workers’ compensation claims.  As such, MSAs in the liability context should rarely be funded for the full value of a claimant’s overall future costs of care otherwise covered by Medicare (as the claimant did not recovery 100 cents on the dollar for such damages).  In applying the allocation logic previously utilized in Bradley for conditional payments, the Court has provided a reasonable and logical path for parties to follow in the short term, with CMS anticipated to provide guidance in 2013 in the form of a Notice of Proposed Rulemaking.  

The DRI MSP Task Force will continue to follow these developments and provide you with practical means for incorporating this guidance into your practice.
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Categories: Law Suit | Medicare | MSP | Supreme Court

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On March 20 the U.S. Supreme Court held that the anti-lien provision of the federal Medicaid Act preempts a state’s right to take any portion of a Medicaid beneficiary’s tort judgment or settlement not designated as payment for medical care.  The Court’s ruling in Wos v. E.M.A., effectively blocks North Carolina’s efforts to recover up to one-third of any damages a Medicaid beneficiary recovers from a third party, as reimbursement for the state’s Medicaid coverage of the beneficiary’s medical treatment. Wos v. E.M.A., U.S. Supreme Court No. 12-98, issued March 20, 2013 (Slip Opinion).

The case involves a child — E.M.A. — who was born with serious birth defects which will prevent her from being able to work or live independently.  North Carolina’s Medicaid program funds part of E.M.A.’s medical care. E.M.A.’s parents settled a medical malpractice lawsuit related to her birth for $2.8 million dollars, even though expert witnesses estimated that total damages in the case exceeded $42 million dollars.  The amount of the final settlement was determined in part by the treating physician and hospital’s insurance policy limits.

Notably, the settlement agreement itself did not specify whether portions of the $2.8 million proceeds were allocated for medical or non-medical damages. The trial court approved the settlement, but placed one-third of the recovery into escrow pending a determination of how much E.M.A.’s parents were required to reimburse North Carolina’s Medicaid program for the cost of her treatment, under state law. The state had informed E.M.A.’s parents that it had spent $1.9 million on E.M.A.’s medical care, and that it would seek to recover that amount, up to one-third of the total recovery of any settlement or judgment of the malpractice claim, in accordance with state law.

E.M.A. and her parents then brought suit in federal court, claiming that the state’s law pertaining to its reimbursement rights violated the federal Medicaid statute.
In today’s decision, the Supreme Court ruled that North Carolina’s law is preempted to the extent that it permits the state to “take a portion of a Medicaid beneficiary’s tort judgment or settlement not designated for medical care.”  Wos at 2. The Court held that North Carolina’s law directly conflicts with the federal statute and “must give way.” Id.

The Court’s opinion states that North Carolina’s law was preempted because the state law lacks any limiting principle, and provides no mechanism for determining whether its allocation of up to one-third of the total recovery is reasonable. Id.

Justice Kennedy delivered the Court’s opinion.

Stay tuned for more detailed updates on how this decision affects the interplay between the federal Medicaid statute and state Medicaid programs.

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SCOTUS Update - Hadden v. United States

Posted on September 25, 2012 02:05 by Robert H. Wright

The Supreme Court of the United States is meeting today to decide which cert. petitions will be granted for the new term, which formally begins next Monday.  One of the petitions distributed for review at the conference will be that from Hadden v. United States, in which DRI – The Voice of the Defense Bar filed an amicus curiae brief in support of cert.  The issue in the case is whether, under the Medicare Secondary Payer Act, the government is entitled to full reimbursement of its Medicare payments when a beneficiary compromises a tort claim and recovers a reduced amount for medical expenses, or whether the government (like its beneficiary) is entitled to only a proportionate recovery from the settlement.  The petition is listed on the (a blog devoted to coverage of the Supreme Court) as one of the “Petitions to Watch” at this conference.  Today, at about 9:30 a.m. eastern, the court is expected to release its list of the petitions granted in today’s conference.

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The Medicare, Medicare and SCHIP Extension Act of 2007 ("MMSEA") requires insurance companies and self-insured employers to report payments and settlements made to claimants who are Medicare-eligible.  42 U.S.C. § 1395y; 42 CFR § 411.24.   After several delays, this requirement was implemented in early 2011.  The Medicare reporting requirement only applies to claimants that are Medicare beneficiaries.  Nonetheless, because the penalties for non-reporting are severe, it may prove prudent to report the claim in all cases and allow The Center for Medicare and Medicaid Services ("CMS") to make the determination of whether the claimant is a Medicare beneficiary.  This becomes increasingly pressing considering that a claimant may become Medicare eligible during the pendency of the claim.  Consideration should be given in cases where the claimant is (1) 65 years or older; (2) on social security disability; (3) suffering from end stage renal disorder; or (4) has a reasonable expectation of becoming Medicare eligible in 6 months.  Currently, the CMS has established a schedule in which the reporting of certain claims will become mandatory.  The schedule is as follows: April 1, 2012, the reporting threshold was $50,000; on July 1, 2012 the threshold will be $25,000; on October 1, 2012 it will be $5,000; and by 2015 the threshold will drop to zero and all claims will have to be reported.

MMSEA mandates reporting requirements by which CMS recovers conditional payments from any interested parties; which includes self-insured employees or defense counsel.  The statute mandates reimbursement within 60 days of settlement or satisfaction of judgments.   Nonetheless, collection attempts by CMS within 60 days of settlement when the Medicare beneficiary disputes the reimbursement claim may be considered "irrational."  Haro v. Sebelius, 789 F. Supp. 2d 1179, 1190 (D. Ariz., 2011).

There are steep repercussions for failing to comply with the Medicare reporting requirements.  Specifically, an insurer may be fined $1,000 per day per claimant for failing to report.   The United States may also bring a private action against any and all persons or interested parties responsible for making payments.  This may result in defense counsel being liable to CMS for reimbursement.   Nonetheless, at least one court has found that Congress never expressly made attorneys responsible for Medicare reimbursements. See Haro, 789 F. Supp. at 1192.

As a result of the mandatory requirements of reporting, it has become increasingly important for defense counsel to report potential claims to CMS.   In the initial phase of the claim, plaintiff's counsel should report the potential claim to CMS.  This information should be disclosed as early as possible in order to facilitate settlement discussions and satisfactions of judgments.  Further, defense counsel should direct discovery to obtain the claimants potential Medicare eligibility; such as requesting production of the claimant's Medicare card and Medicare conditional payment letter.  Defense counsel should also (1) include Medicare indemnification language in any settlement agreement; (2) include Medicaid and Medicare as an additional payee; and (3) tender proceeds with the disclaimer that CMS will be reimbursed.   The Supreme Court of New York took the position that the plaintiffs were responsible for satisfying the Medicare lien considering that when settlement was placed on the record, plaintiff's' counsel stated that they would hold harmless and release the settling defendants from the Medicaid and Medicare liens.  Fried v. City of New York, 940 N.Y.S. 2d 795, 803 (N.Y. Sup., 2012).


Marie Giraud is currently an associate in the Boston office of Morrison Mahoney LLP. 

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Affordable Care Act Upheld

Posted on June 28, 2012 06:14 by Marc E. Williams

This morning the Supreme Court issued its long–awaited decision on the constitutionality of the Patient Protection and Affordable Care Act. The Court upheld the most important feature of the act, the individual mandate, which requires that individuals not covered by health insurance buy coverage or face a “shared responsibility payment.” This mandate was critical to the success of the Act, since the availability of affordable coverage for the millions of uninsured Americans required a large pool of customers. In reviewing the authority of Congress to require this mandate, the Court found that it falls within the taxing power of Article I, Section 8 of the Constitution. The Court also noted that the individual mandate was not an appropriate exercise of Congressional power under the Commerce Clause or the Necessary and Proper Clause. Writing for a plurality of justices, Chief Justice Roberts noted that the questions of the soundness of the policy is not an issue for the court to consider, but only to decide whether it is an appropriate exercise of Congressional authority. Ultimately the Court found that the mandate’s imposition of a penalty for failing to purchase insurance was not commerce that could be regulated by Congress, but would fall within its taxing power. In finding that the mandate was a tax, the Court adopted the position of the Solicitor General, and guaranteed that the issue will continue to resonate in political debates through the November election.

A separate part of the decision considered the constitutionality of a provision of the Act that expanded Medicaid coverage to millions of new individuals. As a result, states were required to adopt new eligibility requirements or risk losing all of its Medicaid funding. The coercive nature of this requirement was the critical feature of the review of this portion of the Act. A complicated plurality of justices held that the expansion was unconstitutionally coercive, but that the remedy for this violation is to strike down the provision allowing the federal government to withhold all Medicaid funds unless a state agrees to the expansion. Accordingly, states that do not agree to the expansion will only lose new Medicaid funding.

For a complete copy of the opinions, see this link:

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On June 14, 2012, the Centers for Medicare & Medicaid Services (“CMS”) released an Advance Notice of Proposed Rulemaking (“ANPRM”).  This document solicits comments on standardized options that CMS is considering implementing to enable “beneficiaries and their representatives” to “meet their obligations to protect Medicare’s interest” with respect to future medicals in liability settlements (including self-insurance). Comments will be accepted for sixty (60) days from the date that the ANPRM is published in the Federal Register.

If you have a few moments, would you please read this DRI Medicare Secondary Payer (“MSP”) Task Force Advisory and respond to the address noted below with some comments?  We think it is worth your time.  We are working to influence and secure additional clarity from CMS about how any new obligation will impact resolution of liability claims (single event and mass tort) in the years to come.  Moreover, defendants and claimants are all “equally yoked” in efforts to ensure any new obligation is clearly defined and fact-specific as well as scalable and cost/time efficient to administer.


In the memo, CMS acknowledges that parties in the liability settlement context have been seeking definitive guidance on the issue of future medicals expenses in liability settlements.  CMS further acknowledges that while such guidance and a corresponding process has been available in workers’ compensation context, no such guidance or process has been established for meeting MSP obligations with respect to future medicals in the liability settlement context to date.  As such, the CMS memo specifically requests comment on “whether and how Medicare should implement such a similar process in liability insurance situations as well as comment on … proposed options” outlined in the memo.

The Proposed Options

CMS states that its interests should be considered in every settlement where the claimant, “reasonably anticipates receiving, or should have reasonably anticipated receiving Medicare covered…services after the date of “settlement…”.  To accomplish this purpose, CMS proposes options  ranging from absolute exemptions on one end of the spectrum (i.e., CMS defined a set of circumstances in which no further action would be necessary / no “set aside” required) to alternatives on the other end of the spectrum that involve a) the beneficiary paying for all future injury-related care out of his/her settlement proceeds until they are exhausted or b) submitting a proposed Medicare Set Aside arrangement (similar to the current process in workers’ compensation).With regard to the latter options, it is important to note that CMS acknowledges that perhaps thresholds could be established (i.e., a dollar amount below which no action is necessary even if one of the other exemptions do not apply).

Further, CMS appears to be considering a process whereby the beneficiary could pay the entire MSA amount “up front” as opposed to having to administer a set aside arrangement into the future.In addition, one can read the memo to suggest that CMS recognizes that efficiency will be gained by creating certain injury classifications for purposes of pre-screening cases as eligible for the various options (e.g., if claim involves injury classification with Injury Severity Score (“ISS”) below x, then no further action required).

Medicare has also recognized the importance of including procurement cost offsets in their calculations.

A link to the full CMS memo can be found at:

What to Expect from the DRI MSP Task Force?

Without doubt, the options and related process that areultimately implemented must have scale and efficiency.Toward that end, the DRI MSP Task Force will be preparing commentary to submit to CMS and would be pleased to hear from you as we prepare our memo.  Our hope is to help assert a collective voice for clarity, efficiency and practicality. Please contact John Cattie, Vice Chair of the DRI MSP Task Force, at (704) 559-4300 or to provide those comments and express your concerns.  If emailing, please put “DRI MSP Task Force: Future Medicals and Liability Claims” in the subject line.

The DRI MSP Task Force will be monitoring all guidance from CMS to continue to update our guidance and advice to DRI members.  All DRI members should begin to consider how such proposed rules may affect their clients.  The DRI MSP Task Force will continue to provide educational outlets (such as the DRI MSP Task Force website at: as well as our next MSP Task Force webcast on LMSAs [date to be announced]).  

As we read between the lines of the CMS memorandum, we are very pleased to see that CMS recognizes that a) there should not be a default rule under which an MSA is required in every liability settlement; b) screening should be done on a fact-specific, case-by-case basis; and c) such screening must be highly-scalable and time/cost effective.

We appreciate your feedback as we prepare our comments to CMS.  Further, we will continue to keep you up to date as additional information becomes available. All comments and feedback should be submitted to John Cattie at with the subject line “DRI MSP Task Force: Future Medicals and Liability Claims.”

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