MSBA Board Certified Trial Specialists 7 TH Annual CLE

1. MSBA Board Certified Trial Specialists7TH Annual CLE June 7, 2011 Town & Country Club St. Paul, MN

2. Dealing with Medicare Interests in Liability Settlements: A Plaintiff Lawyer’s Perspective Susan M. Holden Sieben Grose Von Holtum & Carey LTD

3. Section 111 of the MMSEA of 2007 No change for Plaintiffs Prior to MMSEA Plaintiff’s counsel had a duty to “verify and resolve” any Medicare obligations.

4. Section 111 of the MMSEA of 2007 Defendants’ obligation to report Purpose = expose cases where a plaintiff may owe payment of conditional payment to Medicare $1,000 / day for failure to report Reporting delayed until 1/1/2012 for settlements on or after 10/1/2011 Reporting for ORM began 1/1/11

5. Section 111 of the MMSEA of 2007 Did not change or add requirements related to Medicare Set Asides (MSA)

6. Medicare Compliance Past Interests – conditional payments of medical bills incurred from DOI - through date of settlement Future Interests – Payments made after settlement into future

7. Medicare Compliance Satisfying Past and Future Interests Past – Reimburse Medicare for conditional payments made Future – Consider whether MSA is appropriate

8. Resolving Past Interest Plaintiff notifies Medicare of pending claim MSPRC opens “tort recovery record” Request itemization from MSPRC early – 65 days Plaintiff notifies MSPRC of settlement, recovery costs Plaintiff holds settlement funds in trust Plaintiff sends payment to MSPRC – 60 days

9. Reporting Requirement Plaintiffs’ counsel should assist defense with the reporting requirement. Name of Claimant DOB Gender SSN

10. Avoid Overreactions Do not name Medicare or MSPRC on the settlement check. Not required by law or regulation Not requested by Medicare Slows or prevents settlement Buys more litigation Best protection – release provision and documentation from Plaintiff

11. Avoid Overreactions Do not pay Medicare directly. Frustrates Plaintiff’s ability to negotiate lower payments or waiver Costs more When represented Plaintiff follows process for Medicare compliance Defense should not need to pay Medicare directly.

12. Avoid Overreactions Do not refuse to negotiate because Medicare lien is not confirmed. Itemizations are not “final” until after settlement. When Plaintiff follows process for Medicare compliance there is no risk in negotiating before Medicare’s interest is confirmed.

13. Avoid Overreactions Consider including release provisions Acknowledge Plaintiff’s obligation to protect Medicare’s interest Agree that it is not Defendant’s obligation to pay Medicare Acknowledge risks to Plaintiff’s eligibility if Medicare not protected

14. Dealing with a Pro Se Plaintiff Consider engaging a contractor. Worth the price Ensures that Plaintiff’s future right to Medicare is not jeopardized

15. Medicare Set Asides – Liability Settlements No statutory requirement All MSAs are voluntary CMS guidance for WC cases only No formal process for liability MSAs Document why or why not set funds aside for future medical

16. Medicare Set Asides Very few MSAs in liability cases until further guidance or requirements If doing MSA in a liability case, must do reasonable, good faith analysis - documented

17. Medicare Set Asides Regional office may elect to review and approve allocation depending on workload Workload thresholds are not safe harbors for non-threshold cases No threshold amount to trigger MSAs in liability cases

18. Medicare Set Asides • Chicago Regional Office new workload parameters for reviewing proposed MSAs • in liability settlements: - Claimant current Medicare beneficiary and - Settlement amount $250,000 or greater - No review of proposed $0 (zero) waivers

19. Medicare Set Asides • Real people available to answer questions! • CMS RO-V (Chicago) • For claimant last names beginning A-M • Sharon Johnson (312) 353-9832 For claimant last names beginning N-Z - Paul Jackson (312) 353-1453

20. Communicate Cooperate Not litigate To effectively resolve Medicare interests