MANDATORY INSURER REPORTING IS PLAINTIFF RECEIVING MEDICARE BENEFITS - PowerPoint PPT Presentation

MEDICARE SECONDARY PAYER ACT MANDATORY INSURER REPORTING • IS PLAINTIFF RECEIVING MEDICARE BENEFITS • IS PLAINTIFF MEDICARE ELIGIBLE • IS PLAINTIFF REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 3O MONTHS • IS SETTLEMENT OVER $25,000 AND PLAINTIFF IS MEDICARE ELIGIBLE • IS SETTLEMENT OVER $250,000 AND PLAINTIFF REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 30 MONTHS

MEDICARE - MANDATORY INSURER REPORTING • IS PLAINTIFF 65 YEARS OR OLDER • IS PLAINTIFF ON SSDI BUT NOT MEDICARE ELIGIBLE • HAS PLAINTIFF APPLIED FOR SSDI BENEFITS, BEEN DENIED OR IS APPEALING • IS PLAINTIFF 62 ½ OR OLDER • HAS PLAINTIFF BEEN RECEIVING SSDI BENEFITS FOR 24 MONTHS OR LONGER • IS PLAINTIFF SUFFERING FROM END-STAGE RENAL DISEASE

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

MEDICARE LIENS NO FORMAL NOTICE REQUIREMENTS ENFORECEABLE AGAINST: • INJURED PARTY • INJURED PARTY’S ATTORNEY • TORTEASOR • TORTFEASOR’S INSURANCE CARRIER • UNINSURED MOTORIST CARRIER • MEDICAL PAYMENTS CARRIER NOT SUBJECT TO FULL COMPENSATION DOCTRINE

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION

APPORTIONMENT - ZURICH AMERICAN V. HEARD 321 Ga. App. 325; 740 S.E.2d 429 51-12-33. (a) Where an action is brought against one or more persons for injury to. . . . (b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

APPORTIONMENT 51-12-32. (a) Except as provided in Code Section 51-12-33, where a tortious (a) Except as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom. (b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution. (c) Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom. ..

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION

MEDICAID LIENS - O.C.G.A. § 49-4-149 • DEPARTMENT OF COMMUNITY HEALTH - LIEN FOR PAYMENT OF MEDICAL CARE AND TREATMENT PROVIDED TO MEDICAID RECIPIENT • LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER • PERFECT LIEN BY COMPLYING WITH O.C.G.A §§ 44-14-470 THROUGH 44-14-473 • FILE WITHIN ONE YEAR FROM LAST DATE OF TREATMENT

MEDICAID LIENS - O.C.G.A. § 49-4-149 • FILE IN COUNTY WHERE RECIPIENT RESIDES AND IN FULTON COUNTY • SHALL NOT AFFECT PRIORITY OF ATTORNEY’S LIENS • SUBROGATED TO REASONABLE VALUE OF MEDICAL ASSISTANCE PROVIDED AFTER WRITTEN NOTICE OF LIEN • SUBROGATION RIGHT ATTACHES WHEN SERVICES PROVIDED • SUBROGATION ACTION MUST BE BROUGHT WITHIN ONE YEAR OF LIABILITY BEING FINALLY DETERMINED

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT

MEDICAL LIENS - §§ 44-14-470-476 • HOSPITALS; NURSING HOMES; PHYSICIANS; TRAUMATIC BURN CARE FACILITITY (>$50,000) • LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER • NOT LESS THAN 15 DAYS BEFORE FILING LIEN PROVIDE WRITTEN NOTICE TO PATIENT, THIRD PARTY TORTFEASOR AND THEIR INSURERS – FIRST-CLASS AND CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED • FILE LIEN NOTICE IN COUNTY WHERE SERVICES PROVIDED AND IN COUNTY WHERE PATIENT RESIDES

MEDICAL LIENS - §§ 44-14-470-476 • LIEN NOTICE FILED WITHIN 75 DAYS OF DISCHARGE FROM HOSPITAL, NURSING HOME OR TRAUMATIC BURN FACILITY • LIEN NOTICE FILED WITHIN 90 DAYS OF FIRST TREATMENT BY PHYSICIAN • IMPROPER PERFECTION OF LIEN INVALIDATES LIEN EXCEPT TO THOSE WHO RECEIVE ACTUAL NOTICE OF LIEN BY RELIABLE FORMS OF DELIVERY BEFORE SETTLEMENT • CAN ENFORCE LIEN AGAINST TORTFEASOR OR INSURER WITH ACTUAL OR CONSTRUCTIVE KNOWLEDGE • MUST BRING ACTION WITHIN ONE YEAR OF FINAL DETERMINATION OF LIABILITY

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION

RIGHT OF REIMBURSEMENT – O.C.G.A. § 33-24-56.1 HEALTH AND DISABILITY INSURANCE • MAY RECOVER FROM INJURED PARTY IF THE AMOUNT OF THE RECOVERY EXCEEDS THE SUM OF ALL ECONOMIC AND NONECONOMIC LOSSES INCURRED AS A RESULT OF THE INJURY, EXCLUSIVE OF LOSSES FOR WHICH REIMBURSEMENT MAY BE SOUGHT UNDER THIS CODE SECTION • A DECLARATORY JUDGMENT ACTION CAN BE FILED FOR COURT TO DETERMINE WHETHER FULLY COMPENSATED • INJURED PARTY MUST PROVIDE NOTICE BY RELIABLE METHODS TO BENEFITS PROVIDER NO LESS THAN 10 DAYS BEFORE CONSUMMATION OF SETTLEMENT OR TRIAL

RIGHT OF REIMBURSEMENT – O.C.G.A. § 33-24-56.1 • IF PROVIDE NOTICE, BENEFITS PROVIDER CAN ONLY ASSERT REIMBURSEMENT RIGHTS IF IT HAS PROVIDED NOTICE BY RELIABLE METHODS TO INJURED PARTY OF ITS CLAIM FOR REIMBURSEMENT • IF NOTICE NOT PROVIDED BY INJURED PARTY, BENEFITS PROVIDER NOT SUBJECT TO PRIOR NOTICE REQUIREMENT

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION • ONE OF THE PARTIES IS MAKING UNREASONABLE MOVES WHICH POTENTIALLY COULD END THE MEDIATION

ERISA LIEN • FEDERAL PREEMPTION • INSURED HEALTH PLAN VS. SELF-FUNDED HEALTH PLAN • PLAN MUST SPECIFICALLY PROVIDE FOR REIMBURSEMENT FROM SETTLEMENT OR VERDICT PROCEEDS – SPECIFIC-FUND DOCTRINE • REIMBURSEMENT LIMITED TO AMOUNT PAID FOR INJURY-RELATED CARE • FOR REIMBURSEMENT, PLAN MUST SPECIFICALLY PROVIDE THAT MADE WHOLE DOCTRINE DOES NOT APPLY • DEPENDING UPON LANGUAGE OF PLAN, INJURED PARTY’S ATTORNEY’ S FEES MAY OR MAY NOT BE FACTORED IN

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION • ONE OF THE PARTIES IS MAKING UNREASONABLE MOVES WHICH POTENTIALLY COULD END THE MEDIATION • DEFENDANTS HAVE UNDER-VALUED CASE

LIEN ASSIGNMENTS

ASSIGNMENTS – SANTIAGO V. SAFEWAY 196 Ga. App. 480; 396 S.E.2d 506 “ A debtor of the assignor, who has notice of the pays the debt to the assignor … at his own assignment, peril. ‘It is the established rule in the United States that an assignment for a valuable consideration, with notice to the debtor, imposes on him an equitable and moral obligation to pay the assignee. ’ Here, Safeway had notice of the assignment but nevertheless paid all benefits to the insured rather than the assignee, Dr. Santiago. Thus, Safeway is liable to the assignee and Dr. Santiago is entitled to partial summary judgment.

WHAT DO YOU DO? • PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION • PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION • PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT • ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION • DEFENDANTS HAVE UNDER-VALUED CASE • FIND OUT THAT TRUE DECISION MAKER OR SIGNIFICANT INFLUENCE NOT PRESENT