ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007
American Bar Association General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair & Editor
In this Issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
By: Thomas D. Begley, Jr., Esquire
What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.
A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.
In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.
The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.
Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
By Kenneth Vercammen, Esq.
In the 21 years I have been practicing law I have developed many ideas and systems to better serve Personal Injury clients. My clients consist primarily of Middle class working people who need a good attorney. I was fortunate early in my career to realize that skills in running an office and handling staff were essential whether I became a partner or opened my own practice. Help your practice by inexpensive improvements in service to clients.
YOU WORK FOR YOUR CLIENTS
Famous Department stores instruct all employees "The Customer is Always Right". You should adopt this maxim. I am a solo which several support staff so I am manage the business. Yet, I am still an employee. You work for your clients. They can fire you whenever they want. Use to Dale Carnegie approach to win friends and influence people. Be nice to your clients. Even if you win, clients will not come back if you don't "serve" and please them.
The waiting area is an excellent area to provide clients with Legal Consumer Material. I write brochures to educate my clients on different areas of law. We now have 19 brochures which cover basic topics such as Auto Accidents, Wills, Criminal Law, Probate, Personal Injury, Cooperating With Your Attorney, Living Will, Expungements and Drunk Driving. These assist clients by given them an idea about how cases may progress and sometimes explaining their responsibilities. Hopefully they will read them and save them for future use.
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). The following are 15 quick tips to better serve your clients in soft tissue cases and maximize recovery:
1. Referrals to Doctors - Don't just give one referral, give at least three. Advise your clients that under law they are primarily responsible for all medical bills. The primary responsibility for medical bills is not their car insurance or their private insurance or the defendant.
2. Contested Liability Auto - Go to the scene of the accident. Determine the size of the streets. Look at the location of businesses. This shows greater traffic than a residential area. In a more substantial case, have your investigator go door to door to speak with potential witnesses.
3 Obtain Time Sheets of Property Owner in Slip and Fall Cases - In slip and fall cases, you may wish request from production of documents the time sheets and payroll for the date of the accident prior to the deposition of the manager and other employees.
4. Certified Copies - Obtain certified copies of hospital records and other documents that are prepared in the ordinary course of business. If they are certified there is less of an obstacle to admission of these records at trial.
5. Deposition of Plaintiff - The witness should say "That's all I remember" instead of "Those are the only injuries that I have." Explain to your clients that a deposition is not their opportunity to tell their story. Their clients should be frustrated that they did not get to tell their story the way they wanted. Make sure they know that they should answer yes or no but not to volunteer information.
6. Witnesses - It is a good idea to have all witnesses interviewed and provide a signed statement. You want them to be the witness, not yourself to be the witness and disqualify yourself if their statement at trial is inconsistent with what they may have told you over the phone.
7. Docket Numbers on Correspondence Help the Court - In all letters to the court and motion's clerk, put the complete case name and docket number. If it is to an adjuster or a defense insurance counsel, put the claim number.
8. Defense Doctor Reports - Send the defense doctor reports to the treating doctor prior to trial so they can review the report and advise you as to the weakness in the defense report and the weakness of the defense doctor. It is not recommended to give a report to the plaintiff because that will make them angry.
9. Lien Considerations - Protect yourself. There will occasionally be Medicare, potential welfare liens, workman's compensation liens, and doctors liens. If a Letter of Protection was signed, you as the attorney will be responsible. If there is a Letter of Protection or lien, write it in big letters on the outside of the file. However, doctors also have responsibilities to cooperate.
10. Rules for Professional Conduct - Be careful in what you say and do. I lived in Edison where there were four attorneys, with offices outside Edison, who faced serious disciplinary charges in connection with solicitation at the Texas Eastern Gas Pipeline/ Durham Woods explosion.
11. Preparing Arbitration Statements and Settlement Conference Brochures - These should be easy to read for the Arbitrator or Judge to get to the immediate point of what your damages are. Set forth:
1 - Date and details of accident;
2 - Injuries;
3 - Medical treatment;
4 - Present complaints;
5 - Medical expenses;
6 - Other damages (e.g. Wage loss)
7 - Other important information; and
8 - Medical and evidence documents.
We send a draft Arbitration Statement to our client first for them to review and modify, especially what their present complaints may be. Arbitration should be considered a dry run for trial. You should have proof of your wage lost claim rather than your client just simply testifying what they lost. You should have everything there present to go except the $3,000.00 doctor testifying.
Waiting Time at Arbitration - While waiting for the arbitration, spend every minute preparing the client over and over again until you know the file blindfolded. We often have the client's read every doctor's report.
12. Request for Admissions - When we send the Arbitration Statement to arbitration, we also send the Arbitration Statement to the Defense Attorney with all the medical and evidence documents together with a Request for Admissions Regarding the Genuiness of Documents. Therefore, we are asking them to admit the genuineness and accurateness of documents such as police reports, hospital records, tax records or wage loss forms plus certain doctor's records. In addition, this provides a useful exhibit list for trial. Computers are great to store information and this will help you to pre-mark exhibits in case the matter has to go to trial.
13. Subpoena Witnesses to Arbitration - We have, on occasion, served subpoenas on defendants and witnesses to appear at the Arbitration. I want to determine (1) If they are available; and (2) what they would say at trial or deposition.
14. Settlement Conference Days - We have found success in contacting our Civil Case Manager and asking that they schedule 6-7 of our cases post-arbitration for a Settlement Conference. This way this is much more efficient use of time as the plaintiff's attorney rather than making 7 separate trips for free to the courthouse. The judges will often try to assist you because they wish to wrap the cases up. By having many cases there, you as the plaintiff's attorney are operating in a position of strength and you are not wasting an afternoon.
15. Preparation for Trial of the Case - Preparing your witnesses - There are many excellent videos to prepare clients for trial, depositions, and defense exams. Chiropractors often give patients brochures describing how to explain pain.
CONCLUSION
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
As a practicing trial attorney I try to be pleasant to our clients and all people would contact our office. Being a solo in a full service Law Office, we have to rely on our commitment to clients to pay office expenses, the mortgage and travel to Bar events in exciting places.
Be proud of the Legal Profession, communicate to your clients and be civil. Hopefully, the few ideas which have helped me succeed may help you develop your practice. If you have any suggestions on improving service and representation to Soft Tissue personal injury clients, drop me a note, fax or email: kenvnjlaws@verizon.net
Kenneth A. Vercammen is an Edison, Middlesex County, New Jersey trial attorney who has published 125 articles in national and New Jersey publications on personal injury and litigation topics. He has lectured on Personal injury and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton, PA District Magistrate.
3. BALANCE BILLING between the Medicaid program and the Medicare program.
By: Thomas D. Begley, Jr., Esquire
There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.
1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.
Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.
In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.
In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]
A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”
California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.
2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]
In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.
The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.
142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
4. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
The Tort & Insurance Law Committee monitors federal and state legislation affecting rules of procedure and tort reform. In a newsletter produced twice a year, this committee reviews recent developments in tort reform. The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
_______________________
TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/
