Monthly Archive for November, 2010

PENNSYLVANIA SUPERIOR COURT HOLDS THAT MEDICARE SECONDARY PAYER ACT PROHIBITS PRIVATE ENTITIES FROM ASSERTING MEDICARE’S INTEREST IN ANY PHASE OF LITIGATION

Published on November 22, 2010 in Uncategorized. Closed Tags: , , , , , .

In a recent decision on appeal from a Luzerne County case, the Pennsylvania Superior Court concluded that “there is no legal basis under either federal or Pennsylvania law to assert the interests of the United States government as to the reimbursement of Medicare liens.”  At trial, the plaintiff had obtained a verdict in the amount of $15,000 – $5,000 for “future medial expenses” and $10,000 for “past, present and future physical pain and suffering.” After the court entered judgment, the defendant filed a motion requesting that the court enter an order directing her to pay the verdict either by (1) naming Medicare, along with plaintiff and her attorneys, as payees on the settlement check, or (2) by paying the verdict into court pending notification from Medicare that all outstanding Medicare liens have been satisfied.  The defendant argued that the Medicare Secondary Payer Act requires all parties in litigation to protect Medicare’s interests when resolving claims involving conditional payments made by Medicare and that in order to protect Medicare’s interest, she was obligated to confirm that all potential Medicare liens have been satisfied before paying the verdict award.  The court denied the defendant’s motion for post-trial relief. 

The Superior Court affirmed the trial court’s decision holding that the Medicare Secondary Payer Act “prohibits private entities from asserting the interests of the United States government in a post-trial motion or at any other phase of litigation.”  The court distinguished a party’s statutory obligation to reimburse Medicare from Medicare’s statutory right of reimbursement.  The court concluded that nothing in the Medicare Secondary Payer Act expressly authorizes a primary plan to assert Medicare’s right to reimbursement as a preemptive means of guarding against its own risk of liability; instead, only the United States government is authorized to pursue its own right to reimbursement and only after a recovery demand letter has been issued to the primary plan.

This decision is a setback for insurers who are liable or potentially liable to Medicare for medical payments made on behalf of Medicare beneficiaries because it leaves them with no means to effectively protect Medicare’s interests during litigation.

Date of Decision: November 17, 2010
Zaleppa v. Seiwell, No. 2019 MDA 2009, 2010 Pa. Super. 208 (Pa. Super. Ct. Nov. 17, 2010). (Allen, Mundy, and Colville).

Extension of Current Dollar Thresholds for Liability Insurance and Workers Compensation and Revised Implementation Timeline for TPOC Liability Insurance

Published on November 16, 2010 in Uncategorized. Closed

In a recent alert posted on the Center for Medicare and Medicaid’s (CMS) website, CMS announced that the interim dollar reporting thresholds set forth in the version 3.1 of the MMSEA 111 Liability Insurance (Including Self-Insurance), No-Fault, and Workers’ Compensation User Guide have all been extended by one calendar year.  Accordingly, the following claim reports for Liability and Workers’ Compensation Total Payment Obligation to the Claimant (TPOC) amounts* are exempt from reporting:

• Where the TPOC Date** is prior to January 1, 2013 and the total TPOC amount is $5,000.00 or less;
• Where the TPOC Date is January 1, 2013 through December 31, 2013 and the total TPOC amount is $2,000.00 or less; and
• Where the TPOC Date is January 1, 2014 through December 21, 2014 and the total TPOC amount is $600.00 or less.

No threshold applies to claims where the TPOC Date is January 1, 2015 or later.  CMS will reject any initial claim reports that are exempt from reporting. 

Additionally, the required submission of liability insurance initial claim reports has been changed from the first calendar quarter of 2011 to the first calendar quarter of 2012 for all liability insurance TPOC amounts with no ORM involvement.  Liability insurance TPOCs must be reported if the TPOC Date is on or after 10/1/2011.

Please click here to see the alert.

*The TPOC amount is the dollar amount of the total payment obligation to or on behalf of the injured party in connection with the settlement, judgment, award or other payment.
**The TPOC Date is the date the payment obligation was established. This is the date the obligation is signed if there is a written agreement unless court approval is required.

NEW USER GUIDE

Published on November 10, 2010 in Uncategorized. Closed Tags: .

Please click here to view the MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting: Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation User Guide (revised June 12, 2010).

SECOND CIRCUIT HOLDS THAT THE MEDICARE SECONDARY PAYER ACT IS NOT A QUI TAM STATUTE

Published on November 10, 2010 in Uncategorized. Closed Tags: , , , .

In National Committee to Preserve Social Security and Medicare, et al. v. Philip Morris USA Inc., et al., plaintiffs sought to recover the expenditures made from the Medicare Trust Fund to cover the costs of treating tobacco-related illnesses of Medicare beneficiaries. Plaintiffs argued that the Medicare Secondary Payer Act’s private action is a valid partial assignment of Medicare’s right to be reimbursed by responsible primary payers, and therefore, the Medicare Secondary Payer Act is a qui tam statute. The United States Court of Appeals for the Second Circuit held that the Medicare Secondary Payer Act is not a qui tam statute, and therefore, the parties did not have standing to assert their claims. The court explained that the Medicare Secondary Payer Act enables a private party to bring an action to recover from a private insurer only where the private party itself has suffered an injury because a primary plan has failed to make a required payment to or on behalf of it. The Second Circuit vacated the decision of the district court and remanded the case with instructions for the court to dismiss the complaint for lack of subject matter jurisdiction.

Date of Decision: October 8, 2010
Nat’l Comm. to Preserve Social Security and Medicare, et al. v. Philip Morris USA Inc., et al., No. 09-2321-cv, 2010 U.S. App. LEXIS 20908 (2d Cir. Oct. 8, 2010).

PLAINTIFF CANNOT BRING A CLAIM AGAINST MEDICARE UNTIL THE ADMINISTRATIVE APPEALS PROCESS IS EXHAUSTED AND A FINAL DECISION IS ISSUED

Published on November 10, 2010 in Uncategorized. Closed Tags: , , , .

In Hicks v. Chamberlain et al., the plaintiff attempted to bring Medicare in as a party in a personal injury suit asserting that Medicare “should be required to assert its interests or otherwise be forever barred from doing so.” The U.S. District Court for the Eastern District of Kentucky granted Medicare’s motion to dismiss on the grounds that the court did not have subject matter jurisdiction because the plaintiff had not exhausted his administrative remedies required by the Medicare Secondary Payer Act. Only after the appeals process is exhausted and the Secretary of the U.S. Department of Health and Human Services has issued a “final decision” may a plaintiff file a claim in federal court. The court held that, alternatively, the doctrine of sovereign immunity compelled the dismissal of Medicare.

Date of Decision: October 21, 2010
Hicks v. Chamberlain et al., Civil Action No. 10-144-CLB, 2010 U.S. Dist. LEXIS 112969 (E.D. Ky. Oct. 21, 2010).