The Claimant Crushing bRed Letterb Most Personal Injury Trial Attorneys Donbt Know Aboutb&and How It Will Haunt You

Therebs nothing that strikes fear and intimidation more than red ink. Think about it, no other color elicits quite the same response. Perhaps this reaction stems from seeing correction marks in red ink. Over the years you become conditioned to those marks, and red becomes a color that indicates something is wrong or needs your attention. It canbt be ignored. In the case of the Medicare personal liability settlement Red Letter that your client may receive, this couldnbt be truer. If or when your client receives this letter, it wonbt justB needB attentionb&it willB demandB it. In fact, it demands it now and herebs why.
Imagine youbve settled a liability case for a client who isnbt Medicare eligible at the time of settlement. Meaning therebs no reason for the defendants or their insurers to report this case to Medicare. Section 111 Medicare Secondary Payer, which was signed into law in 2007, requires B settlements to be reported to Medicare. In fact, it states that the responsible reporting entity, defendant or the self-insured, which does not report a Medicare-eligible beneficiarybs liability settlement to Medicare is subject to $1000 per day, per claimant penalty. We’ll cover more about this law, and its effects, inB this article.B
Had your client been Medicare eligible, reporting to Medicare would have meant disclosing ICD-9 or ICD-10 disease codes. These are codes that describe the injuries or conditions that are settled as part of the case and, when reported to Medicare, are filed away to match up against future bills submitted to Medicare. A match means payment is denied.
Some casualty adjusters have disclosed that their firm reports B all settlements to the government, Medicare eligible or not. While no answers have come from Medicare as to what happens with non-eligible reports, living in an age where all of our tweets, emails and phone calls are tracked certainly suggests that this info could also be stored for later. Yet, it appears that you and your client are in the clear as, in our example, your client isnbt Medicare eligible at the time of settlement, right?
That is true, until your client becomes Medicare eligible, post-settlement. At this point, Medicare will send them a Medicare SECONDARY CLAIM DEVELOPMENT (SCA) Red Letter that includes a questionnaire. This questionnaire has three sections. The second section, bMore Information About You,b being the most alarming of them all.
[H2: The In’s & Out’s Of TheB Medicare Personal Liability Settlement Red Letter]
It starts out harmless enough with a request for some general information in Section I. Shown below is the second part of this letter, which asks if your client is receiving Black Lung Benefits, workersb compensation benefitsB or treatment for an injury or illness which another party could be held liable forB or is covered under automobile no-fault insurance. A simple yes or no is all thatbs required.
Medicare personal liability settlement Red Letter
Then to the left of each of these questions they ask for dates, which are immediately followed by sections asking for detailed information about their insurance carrier. Most clients answering bYesb to #3 will probably enter their auto insurance carrier here. Not too bad, but then therebs more.
As this section continues to the second page, youbll notice that things go alarmingly in depth. Detailed information about their employer (being disabled and on Medicare, they probably donbt have an employer), their attorney, (thatbs YOU), and then a brief description of their illness or injury are required.
Medicare personal liability settlement Red Letter
Why does this matter? It matters because Medicare now knows of your clientbs settlement, and will soon have all of the information they need to match bills and deny payments later. There is no way to get out of this.B
Now you realize, eligible or not at time of settlement, Medicare will find out about your clientbs settlement. When they do, they will not pay for future expenses. In fact, they will cut off your clientbs Medicare benefits for those conditions and injuries that are the subject of the settlement of your clientbs claim. What does this mean for your client? Less funds for other needs, unless proper settlement planning has occurred from the beginning. B Or it could mean that your client has already spent their settlement and they have no money left with which to pay the denied Medicare bills. B What does this mean for you? B Probably at the least an angry phone call. B If your client is being crushed under a pile of denied Medicare bills, possibly a bar complaint or worse, a malpractice claim.
But there is a solution. It involves looking at an MSA as a useful tool instead of a dangerous weapon.B AB strategically allocatedB and administered custom MSA account, minimized to the lowest reasonable (and therefore, defensible) dollar amount possible, may be your protection-seeking clientbs best defense against not having the money to pay denied bills from Medicare. B The additional benefit is that your client may have effectively bcappedb their exposure to Medicare at the amount that is ultimately funded into their MSA. B You see, if your client does nothing in the way of considering Medicarebs binterest,b or protecting the Medicare Trust Fund from becoming a first-payer on their settlement related medical bills, Medicare may take the position (as they do in Workerbs Comp cases) that your client must prove that they have spent their entire settlement (including the amounts they paid you for fees and legal costs) on Medicare-allowable expenses before Medicare will jump back in and pay one dime.
However, if your client has voluntarily created and funded a custom MSA account, and that account has reached eitherB temporaryB orB permanentB bexhaustionb (out of money) then by law Medicare has to cover your clientbs settlement related, Medicare-allowable expensesB for up to the rest of their life.
Effectively, this is what it boils down to: in order for your client to get into Medicarebs pocket, they must prove they spent theirB entireB settlement (BIG NUMBER) or that they have exhausted a minimized MSA (smaller number). Which do you think your client will prefer?
Take control of your clientbs Medicare issues with the help of The Plaintiffbs MSA and Lien Solution. Our tools will help you and your client determine whether they have a potential Medicare issue in their future, and whether they can first use one of our b2 Ways To Avoid an MSA.b If it canbt be avoided and it looks like Medicare could be a problem for your client, they may want to voluntarily fund an MSA account to solve it. B Then our team will create a strategically minimized Medicare Set-Aside allocation to the lowest possible, reasonable and defensible number, leaving them with more settlement funds and you feeling like youbve done everything you can to protect them from this situation.
What you don’t know about Medicare reporting and skillful use of MSAs to avoid major client Medicare issues can B affect your time, money and reputation. Let us help you through it. Sign up for our free video training series:B How to Avoid Stress, Reduce Risk and Save Money in Cases Involving Liability MSAs, Structured Settlements and Lien Resolutions.
By now everyone knows that MSAbs are not legally required in liability settlements. But a strategically minimized MSA from The PLAINTIFFbS MSA & LIEN SOLUTION may still be a strategy worth considering as a means to provide the money to pay clientbs future Medicare b allowable, settlementbrelated medical bills.


Watch Your Language! Crushing Words That Can Spell Disaster for Your Clientb�s Future Medicare Benefits

Itbs your worst nightmare. You thought you and the defendant were on the same pageb&that is, until you saw the settlement agreement. Taking a closer look, you realize you missed a very important block of language. Language that releases the defendant from all liability, even if what they report to Medicare about your client is incorrect. Incorrect information of any kind is a setback, but the worst would be incorrect ICD-9 or ICD-10 codes. Particularly the kind that correspond with your clientbs preexisting conditions, and not those that are the subject of their settlement. That kind of error could trash your clientbs future Medicare benefits. It may be too late now to effect your past cases, but how can you stop this in the future?
Somethingbs got to change, and defendants and their insurance companies arenbt likely to be that something. Especially, if past behavior is any indication. Who can forget what happened after the Section 111 Medicare Secondary Payer law was updated? The updated section stated that the bresponsible reporting entityb (aka: the defendant or the self-insured), which does not report a Medicare-eligible beneficiarybs liability settlement to Medicare is subject to $1,000 per day, per claimant penalty. B Defendants grossly over-reacted, telling you that Medicare Set-Aside Arrangements (MSAs) were required in liability cases, and that they wouldnbt settle your case until they had proof that Centers for Medicare and Medicaid Services (CMS) had approved an MSA. Not true, and how did they even get all of that out of the updated Section 111 law? B So how can you trust them to know and do the right thing now?

A recent case of ours out of Orlando proves that you canbt. As you know, defendants want a lot of release language. They want your client to indemnify them, hold them harmless, and even defend them from Medicare. Worse yet, theybll do anything to get what they want. That includes hiding critical language in the middle paragraph of a settlement agreement, as they did in this case. That hidden language, is what you see below in red:

MSA defendant release language

Frightening, right? We caught this language upon document review and showed it to the plaintiff attorneys, who were outraged. Then, we managed to remove it from the settlement agreement and replace it with language of our own before it was too late. You, however, might not be so lucky. So what can you do about this MSA defendant release language? Enlist the help of the expert team at the PLAINTIFFbS MSA & LIEN SOLUTION and use our recommended bPlaintiff Liability Medicare Set-Aside Defendant Release Languageb template.
Plaintiffs should want their own language in the settlement agreement, which is exactly what this is and why you need it for your Medicare-eligible beneficiary. First, webll do an MSA analysis on your clientbs future Medicare-allowable expenses and minimize it to the greatest extent possible. Then webll give you our proprietary language to insert into the settlement agreement, language that acknowledges the defendant/self-insuredbs duty to report and holds them to a report of only the ICD-9/10bs and prescription drugs that webve identified. Problem solved.
What you don’t know about MSA pitfalls can damage your clientbs future Medicare benefits. Let us help you avoid them. Sign up for our free video training series: How to Avoid Stress, Reduce Risk and Save Money in Cases Involving Liability MSAs, Structured Settlements and Lien Resolutions. B B B B B B B B B

Three Common Mistakes Plaintiff Attorneys Make When Attempting to Resolve an ERISA Lien

Face it. ERISA liens are no picnic. And resolving them isnbt getting any easier. In fact, itbs become more complex, especially with decisions like McCutchen vs. U.S. Airways. Cases like these have forever changed the way ERISA seeks reimbursement from plaintiffs who later receive a third-party settlement. So what do you do? If youbre an experienced plaintiff attorney, itbs been ingrained that resolving these liens yourself at no charge is simply part of your job and something you should do. However, you may be rethinking that approach. And if youbre a newer plaintiff attorney, you may already have decided that you are not going to deal with them. Regardless of who you are, experienced or newer trial attorney, the stakes are higher and mistakes are easier to make than ever. Herebs what you should know.
When attempting to resolve an ERISA lien, one of the most common mistakes you can make is not being honest with yourself. Ask yourself if you really care what your client pays back to his or her ERISA plan, or what their net settlement is. If your answer is byesb on the outside, but you really donbt want to make a federal case out of it, answer the question bno.b Sure, you could press on for seven years like McCutchenbs team did and take it all the way to the Supreme Court, but would it be worth it for you or for your client? B If not, make your deal, convince your client what a great job you did and MOVE ON.
Another common mistake, and this is a big one, is to proceed WITHOUT the ERISA Plan Document (EPD). The EPD is supposed to contain specific legal language that allows the ERISA Plan to seek full reimbursement from any settlement a member receives as a result of a third-party injury. In the McCutchen vs. U.S. Airways Supreme Court ruling, the Supreme Court cites this language from the U.S. Airways Summary Plan Document (SPD).

ERISA lien resolution services
ERISA lien resolution services

However, the SPD is no replacement for the EPD itself, which the Supreme Court ruled reigns supreme.

ERISA lien resolution services

Itbs important to note that if the aforementioned U.S. Airways reimbursement language hadnbt also been in the ERISA plan document, as sometimes it is not, this ruling would probably not have held. This is precisely why it is important to only proceed with the EPD. If you choose to proceed without the EPD then you really do not know if the ERISA Plan has the legal horsepower to exert a lien on your clientbs settlement. The moral of the story? Donbt be a fool and proceed without the ERISA Plan Document. If you STILL choose to proceed without the EPD, ask yourself again if you really care what your client pays back to their ERISA plan or what their net settlement isb&and this time answer truthfully.
The third, and biggest mistake you can make, is to do it yourself. As new rulings make resolving lien cases more complex, itbs easier for mistakes to be made. These mistakes can greatly cost your client. Why take that chance? Instead, make sure your retainer agreement has a provision that allows you to hire outside sources. With proper outsourcing, outside legal teams can make arguments that plaintiffbs counsel may be constrained to make. Better yet, when you decide to outsource, take advantage of ERISA lien resolution services from The Plaintiffbs MSA and Lien Solution.
Our lien team at Precision Resolution will put your client in the best possible position to obtain a great result from the resolution of their ERISA Plan lien. Our team is full of relentless lien hitmen. Since 2011, we have put millions of dollars back into plaintiffbs pockets through relentlessly and successfully challenging, reducing and eliminating lien claims. Not to mention, we have also significantly reduced attorney exposure to compliants or claims stemming from lien issues. With a team like this therebs no need to go it alone, or take risks. Put our team to work for you and your clients today. B Outsource your case to us here.