Archive for the ‘Uncategorized’ Category

DENISE M. TORRES

-         Presidential Scholar

-         National Hispanic Scholar

-         Graduated from UNM Law School

-         16 years in practice

-         Martindale-Hubbell AV® rated

-         Selected as one of the Best Lawyers in America for 2005, 2006, 2007, 2008 and 2009

-         Selected by peers for inclusion in the 25^th anniversary edition of The Best Lawyers in America in the specialties of Alternative Dispute Resolution and Personal Injury Litigation

-         Selected as one of  The American Trial Lawyers Association’s Top 100 Trial Lawyers in New Mexico 2008

-         Selected as a Southwest Super Lawyer for 2007, 2008 and 2009

-         National Institute for Trial Advocacy Instructor 

-         Member International of the Who’s Who of Professionals

-         New Mexico Trial Lawyers Association Board of Directors

• President Elect for 2008-2009

-         Served on the New Mexico Uniform Jury Instruction Civil Committee

-         Served on the Judicial Performance Evaluation Commission (JPEC)

-         Served on the Commission for Professionalism 2008

-         Past-President of the Board of Directors of La Casa Inc.

-         Practice Areas and Alternative Dispute Resolution for all areas identified below:

• Automobile Collisions
• Motorcycle Collisions
• 18 Wheeler Collisions
• Wrongful Death
• Medical Malpractice
• Insurance Bad Faith
• Sexual Assault
• Sexual Molestation
• Nursing Home Negligence
• Dog Bites

Negotiating and Resolving Subrogation

Claims with Medicare/Medicaid

Denise M. Torres

Saenz & Torres, P.A.

333 S. Campo Street

Las Cruces, New Mexico 88001

Phone: 575.526.3333

Fax: 575.523.2238

 

-AND-

 

301 Gold S.W.

Suite 201

Albuquerque, New Mexico 87102

www.personal-injury-nm.com

Denise@Saenz-Torres.com

 

ABA Model Rule 1.1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.”

 

Medicare vs. Medicaid

 

Although Medicare and Medicaid sound similar they are very different programs. Medicare is an entitlement program entirely funded at the federal level for people 65 or older, people under 65 with certain disabilities, and people of all ages with end stage renal disease. The Medicare program provides a Part A which covers hospital bills, a Part B which covers medical insurance coverage, and a Part D which covers prescription drugs.

Relevant Statutory Language: State assigned “rights . . . to payment for medical care from any third party”

Medicaid is an entitlement program that is not solely funded at the federal level. Medicaid is a needs-based social welfare or social protection program rather than a social insurance program. Eligibility is determined by income. States provide up to half the funding for the Medicaid program. Medicaid covers a wider range of health care services than Medicare.

Relevant Statutory Language: Reimbursement from primary plans having “responsibility to make payment with respect to such item or service”

Medicaid Reimbursement After Ahlborn 

 

On Monday, May 1, 2006 the United States Supreme Court unanimously affirmed the Eighth Circuit’s decision in Arkansas Dep’t of Health and Human Services v. Ahlborn, 126 S. Ct. 1752 (2006). With this ruling State Medicaid agencies’ reimbursement claims out of tort settlements are limited to that portion of the settlement attributable to past medical expenses. This ruling means that the agencies are prohibited from seeking reimbursement for any part of the plaintiff’s recovery for:

• lost wages;
• pain and suffering; and
• permanent disability.

The Court held that the federal anti-lien statute prevents states from attaching or encumbering the non-medical portion of the settlement or judgment.

The Ahlborn Ruling

• Heidi Alhborn was a 19 year old college student who suffered sever brain damage and permanent injuries following an automobile collision.

• The Arkansas Dept. of Health, the state’s Medicaid agency, paid $215,645.30 for medical treatment.

• In order to be eligible for Medicaid payments Ahlborn had “to assign [to] the State any rights . . . to payment for medical care from any third party” and “to assist the State in pursuing any third party who may be liable to pay for care and services available under the [State Medicaid] plan.” 42 U.S.C. § 1396k(a).

• Ahlborn filed suit against the tortfeasor seeking damages for past medical expenses, past and future pain and suffering, mental anguish, permanent impairment, loss of earnings and permanent impairment of the ability to earn in the future.

• The Arkansas Dept. of Health intervened in Ahlborn’s suit and asserted a lien against the recovery for the full $215,645.30 that it had paid for medical expenses.

• Ahlborn then settled her suit for $550,000 with no allocation for each element of the damages claimed.

• The Arkansas Dept. of Health did not participate in settlement negotiations and did not seek to reopen the case after it was dismissed.

• Early in the litigation the parties stipulated that Ahlborn’s total claim had a reasonable value of $3.04 million, and that her settlement amount of $550,000 represented approximately 1/6 of that sum.

• Ahlborn’s position was that the department was entitled to 1/6 of the settlement amount which is $35,581.47.

• The District Court Judge sided with the Dept. of Health ruling that it was not unreasonable for the Dept. to require Ahlborn to repay it in full from her settlement even if the portion allocated for medical treatment was less than the amount demanded by Medicaid.

• The Eighth Circuit reversed.

•  
  • HOLDING: Federal Medicaid Law (42 U.S.C. § 1396k(a)(1)(A) and (42 U.S.C. § 1396a(a)(18)) does not authorize the Department to assert a lien on Ahlborn’s settlement amount beyond recovery for medial expenses, in the case, $35,581.74. 

• The United States Supreme Court Affirmed.

•  
  • RATIONAL: The Supreme Court found that the language of the federal third-party liability provisions focused solely on “recovery of payments for medical care.” 126 S.Ct. at 1761. Moreover, the Court ruled, the State itself could not adopt more expansive reimbursement rules, because any reimbursement out of damages paid to plaintiff for lost wages or pain and suffering would contravene the anti-lien provision of the Medicaid Act. 126 S.Ct. at 1762-64.

The Court’s concern was that any rule granting “absolute priority” to the state’s reimbursement claim “might preclude settlement in a large number of cases,” and any concern that settlements would be manipulated to avoid repayment could be addressed through judicial procedures to allocate settlements when the state and the plaintiff cannot agree on a fair allocation. 126 S.Ct. at 1764-65.

 

Arguments for Extending Ahlborn to MCRA and MSPA(Medicare): Similar Statutory Obligation and Purpose  

 

The text of the third-party liability provisions in the Medical Care Recovery Act

(MCRA), 42 U.S.C. §§ 2651-53, and the Medicare Secondary Payer Act (MSPA), 42 U.S.C. § 1395(y), are similar to the language in the Medicaid Act interpreted in Ahlborn.  The MCRA entitles the federal government to recover the cost of medical care from third party tortfeasors. Section 2651(a) of MCRA provides, in relevant part:

In any case in which the United States is authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment . . . to a person

who is injured or suffers a disease . . . under circumstances creating a tort liability

upon some third person . . . to pay damages therefore, the United States shall have

a right to recover (independent of the rights of the injured or diseased person)

from said third person, or that person’s insurer, the reasonable value of the care

and treatment . . . and shall as to this right be subrogated to any right or claim that the injured or diseased person . . . has against such third person to the extent of the reasonable value of the care and treatment . . .  The head of the department or agency of the United States furnishing such care or treatment may also require the injured or diseased person . . . to assign his claim or cause of action against the third person to the extent of that right or claim.

The MCRA gives the United States a right to enforce by allowing it to intervene or join in any action brought by the injured person and institute its own legal action against the liable third party. 42 U.S.C. § 2651(d). Moreover, the statute expressly authorizes the United States to “compromise, or settle and execute a release of, any claim which the United States has by virtue of the right established by section 2651” or to “waive any such claim, in whole or in part, for the convenience of the Government, or if [the head of the department or agency] determines that collection would result in undue hardship upon the person who suffered the injury or disease resulting in care or treatment.” 42 U.S.C. § 2652(b).

The act explicitly states: “No action taken by the United States in connection with the rights afforded under this legislation shall operate to deny to the injured person the recovery for that portion of his damage not covered hereunder.” 42 U.S.C. § 2652(c).

MSPA was enacted to address a somewhat different situation. It was intended to ensure that Medicare’s obligation to pay will be secondary to that of another insurer when both Medicare and the other insurer are responsible for the cost of medical treatment. Nevertheless, MSPA has been applied to tort litigation because many tortfeasors have liability insurance that covers the cost of injuries caused by their negligence. Where such “primary plan” insurance cannot reasonably be expected to make payment promptly (maybe because the insured’s liability is disputed), Medicare will make payments for the medical treatment, subject to a right of reimbursement. The repayment and enforcement provisions under MSPA mirror those under MCRA and Medicaid:

A primary plan, and an entity that receives payment from a primary plan,

shall reimburse the appropriate Trust Fund for any payment made by the

Secretary under this subchapter with respect to an item or service if it is

demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan’s responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means. . . . 42 U.S.C. § 1395y(b)(2)(B)(ii).

MSPA permits the Secretary of Health and Human Services to waive any provision of the

act when he or she determines that “waiver is in the best interests of the program.” 42 U.S.C. § 1395y(b)(2)(B)(v). The statutory language of MCRA and MSPA parallels that of the federal Medicaid Act. When the federal government pays for medical care or treatment for which a third party may be liable, the government acquires a right to recover payment from that third party. 42 U.S.C. §§1395y(b)(2)(B)(ii), 1396a(25)(H), 2651(a). It is subrogated to and/or assigned the program beneficiary’s rights to recover for the costs of that treatment. 42 U.S.C. §1395y(b)(2)(B)(iv), 1396k(a), 2651(a). And the government may bring an independent legal action to obtain reimbursement. 42 U.S.C. §§ 1395y(b)(2)(B)(iii), 1396a(a)(25)(B), 2651(d).

What is important is that the statutory scheme limits the government’s repayment

rights to payments for medical expenses, while leaving the injured plaintiff’s right to recover for other items of damages undisturbed. The Medicaid Act speaks of the State being assigned the “rights . . . to payment for medical care from any third party;” MCRA of “a right to recover . . . the reasonable value of the care and treatment;” and MSPA of reimbursements from primary plans that have “responsibility to make payment with respect to such item or service.” In Ahlborn, the Supreme Court read this language in the Medicaid Act not to reach portions of a tort settlement that represent items of damages other than medical expenses. See, e.g., 126 S.Ct. at 1764 n.15. (“assignment of the right to compensation for lost wages and other nonmedical damages is nowhere authorized by the federal third-party liability provisions”).

Arguments Against Extending Ahlborn to MCRA and MSPA(Medicare): Differing Statutory Language

There are significant differences in the legislative language among these three

statutes. For example:

• MSPA places the legal obligation on the primary plan to reimburse the government, rather than codifying a governmental right to recovery;
• MSPA also authorizes the government to collect double damages from a primary plan that does not fulfill this obligation;
• Unlike Medicaid, the Medicare statute is not based on an assignment of rights, payments are made conditionally, and are subject to full recovery when a third party payer is held to be responsible for Medicare related services and items;
• Medicare is not limited to recovering only from the portion of a settlement that is allocated to health care items and services;  
• The Medicare statute does not contain and anti lien provision;
• The Medicare statutory framework provides CMS with an independent right of recovery against any entity that is responsible for the payment of or that has received payment for Medicare related items or services;
• This independent right of recovery is separate and distinct from CMS’s right of subrogation; and
• This right is not limited by the equitable principle of apportionment stemming from the subrogation right.  

However, both the MCRA and MSPA expressly authorize the government to waive all or part of its claim to reimbursement. Also, remember that the primary legislative purpose of all three statutes is the same: to make the government the “payer of last resort” and thereby reduce the overall cost of government health care programs.

Guidance for Plaintiff’s Counsel

How should plaintiffs’ counsel respond to the Supreme Court ruling in Ahlborn, when

representing a client who has received medical care through a government-funded health care program?

1)  Provide timely written notification to the relevant governmental agency and include:

• That you will be seeking recovery for tort damages, possibly including repayment of the government’s medical expenses;
• Ask the government to provide an accounting of its medical costs;
• Invite the government to participate in the lawsuit should you file;
• Inform the government agency of your understanding, based on Ahlborn, that any tort recovery must be equitably apportioned between the plaintiff and the government;
• Beneficiary’s Health Insurance Claim Number (HIC) or Social Security Number;
• Date of the injury;
• Name and address of the liability carrier;
• Name and address of the beneficiary’s insurer;
• Nature and extent of the beneficiary’s injuries;
• A request that the statement of benefits be updated to eliminate claims not related to the injuries that are part of the recovery; and
• A release (no release no information).

2) Make a tactical decision whether to seek recovery for medical costs paid by the

government and be explicit about that decision in your pleadings so that notice is clear. If a decision is made not to seek recovery for the government’s medical costs, this fact should be made explicit in the pleadings, thereby putting both the government and the defendant on notice of the possibility of a separate claim by the government to recover its costs. Likewise, any settlement release should make clear that it is not waiving any claim by the government.

3) Seek to negotiate an agreement with the government over the equitable

apportionment of any settlement and, if such an agreement cannot be reached,

apply to the court for an order that equitably allocates any court settlement

among categories of damages and invite the government to attend the hearing.

4) If the government agency asserts a right to priority reimbursement, be prepared

to argue that the government’s claim of priority was rejected by  the rationale of the Supreme Court in Ahlborn.

 

Apportionment Methodologies

In researching how the Ahlborn decision has impacted Medicaid tort recovery around the country, I came across Matthew Garretson an attorney in Ohio who has done significant work with attorneys and state agencies in an attempt to find a uniform way to apply Ahlborn to settled cases.  The Garretson Law Firm found that successful approaches fell into three broad categories. To foster uniformity and consistency the firm coined these emerging methodologies: Proportionate Value/Adjusted Allocation (PVAA), Proportionate Value/Adjusted Lien (PVAL) and Equitable Apportionment (EA). [1]

A. Proportionate Value/Adjusted Allocation (PVAA)

 

• Step 1:  Total Damages – The first step is to determine the total damages that could be black-boarded at trial. In making this calculation, do so as if causation and liability are not a factor. Example: There is a $350,000 settlement. After identifying all damages based on economic reports and/or life care plans, the plaintiff’s attorney can black-board that a reasonable full value of damages is $1,000,000. However, due to policy limits and/or comparative fault, the parties settled for $350,000.

• Step 2: What percentages are past medical expenses of the total damages? Determine the percentage of the total damages which are comprised of past medical losses (as opposed to other losses such as pain and suffering, disfigurement, future medical expenses, lost wages, derivative losses and so on). In completing this step, determine whether to claim at trial the actual medical expenses billed by the providers of care instead of the actual medical expense paid by Medicaid to the providers. Utilizing actual expenses paid by Medicaid to providers as opposed to actual medical expense billed by providers would greatly reduce the ratio of past medical expenses to the total black-board damages. Medicaid will want you to use what providers billed versus what providers were paid in both your calculation of total damages and your calculation of the percentage of past medical expenses. Example: The medical providers billed Medicaid a total expense of $200,000 for the injury-related care, or 20% of Total Damages. The payments to medical providers by Medicaid were $100,000, or 10% of Total Damages.

• Step 3: Determine the initial allocation. Next, apply the appropriate past medical expenses percentage from Step 2 to the actual recovery by your client to determine the initial allocation to past medical expenses in your settlement. Example (using paid rate): Under Step 3, the initial allocation, based upon the “Paid Rate”, is 10% of $350,000 (i.e. $35,000).

• Step 4: Adjust initial allocation to account for state’s proportionate share of attorney fees and case cost. After calculating the actual attorney fees and case costs, multiply that sum by the appropriate past medical expenses percentage from Step 2. Deduct that quotient from the initial allocation in Step 3 to yield the adjusted past medical expense allocation.  This further offset is done to recognize the proportionate sharing of fees and case costs (“procurement costs”). Example: Attorney fees and case costs totaled $150,000 (of the $350,000 settlement). If we multiply that amount by 10% (from Step 2, using “paid rate”), we yield $15,000. If that amount is now deducted from the corresponding initial allocation of $35,000 (from Step 3), we yield $20,000 for the adjusted allocation.

• Step 5: Satisfy lien within the adjusted medical expense allocation. The state only can satisfy its claimed lien (i.e. injury-related expenditures) from the adjusted allocation determined in Step 4. To the extent that the claimed lien amount exceeds the adjusted allocation from Step 4, the Medicaid department’s recovery of the lien consequently will be reduced (i.e. they only can get up to the adjusted allocation amount from Step 4). Example: While the state’s lien is for $100,000, their recovery is capped at $20,000.

B. Proportionate Value/Adjusted Lien (PVAL). The primary difference between this second methodology and the first methodology is the manner (and timing) in which attorney fees and case costs (“procurement” expenses) impact the claimed lien.

• Steps 1 thru 3 are identical to the first methodology (Proportionate Value/Adjusted Allocation (PVAA))

• Step 4: Adjust the claimed lien by the percentage allowed by the New Mexico Medicaid recovery statute to account for state’s proportionate share of attorney fees and case costs (i.e. determine the amount of attorney fees and case costs – What percentage is the amount of the actual gross settlement recovered by your client?) Example: Attorney fees and case costs totaled $150,000 the actual gross settlement recovered by the client is $350,000. The state’s claimed lien is $100,000. The claimed lien can be fully offset by procurement costs $150,000 (fees/costs) is 43% of $350,000 (gross settlement). The claim lien of $100,000 is therefore reduced by 43%, yielding an adjusted lien of $57,000 (i.e. $57,000 is the claimed lien amount adjusted by cost of procurement).

• Step 5: Satisfy adjusted lien within the medical expense allocation. The state only can satisfy its “adjusted” claimed lien (i.e. injury-related expenditures reduced proportionally by procurement expenses) from the appropriate initial allocation determined in Step 3 (recall discussion regarding “billed rates” vs. “paid rates”). To the extent that the adjusted claimed lien amount (Step 4) exceeds the initial allocation from Step 3, the Medicaid department’s recovery of the lien consequently will be reduced or capped (i.e. they only can get up to the initial allocation from Step 3). Example: While the state’s adjusted lien is for $57,000 their recovery is capped at $35,000.

C. Equitable Apportionment (EA). This third methodology is a fall back when the plaintiff and the state cannot agree on the allocation of the damages (between past medical expenses and other damages) pursuant to the first or second methodology above. For instance, in Ahlborn the parties stipulated to the full value of the case, but never engaged in substantive discussion concerning the true allocation or proportion of past medical expenses.

• Steps 1 and 2 are identical to the methodologies listed above.

• Step 3: Determine equitable apportionment. Next, determine what percentage the actual recovery is of the total damages. Alternatively, stated – What percentage of the full value of the case did plaintiff actually recover? Example: Plaintiff actually recovered $350,000. The full value of the case is $1,000,000. Plaintiff recovered 35% of the full value of the case.

• Step 4: Adjust the claimed lien by the equitable apportionment percentage. Example: The payments to medical providers by Medicaid were $100,000 the lien should be reduced by the equitable apportionment percentage calculated in Step 3 the adjusted lien amount therefore is now $35,000.

• Step 5: Satisfy lien with the “claimed lien adjusted by equitable apportionment percentage”. The state only may get the claimed lien adjusted by the equitable apportionment percentage (determined in Step 4) the Medicaid department’s recovery of the lien consequently will be reduced or capped.

D.  If the parties are unable to come to an agreement, you may be left to seek a court order allocating the settlement among the different categories of damages. Procedures already exist in cases involving minors or folks found to be incompetent. For competent adults the recommendation is:

• Ask the court for a hearing on the allocation of damages;

• Move the court prior to finalizing the settlement agreement to establish a 468B Qualified Settlement Fund (QSF) and ask the court to appoint a neutral fund administrator (possibly the mediator from the case) to make a reasonable allocation of damages.

• Ask the court or fund administrator to apply one of the three allocation methodologies articulated above.

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Medicaid Estate Recovery

The federal government requires all states to implement Medicaid estate recovery programs to recoup costs of long-term care and other related Medicaid services. New Mexico has started to enforce its Medicaid Estate Recovery Program (NMSA 27-2A-1 et seq and NMAC 8.200.420.12). This means that Medicaid can reach into the estate of a person who obtained money as a result of a personal injury or wrongful death lawsuit to recoup monies paid by Medicaid.

Enrollees Subject to Recovery. States primarily seek recovery from the estates of certain enrollees:

• Individuals in nursing facilities, intermediate care facilities for the mentally retarded, or other medical institutions, and

• Individuals who were age 55 or older when they received Medicaid coverage.

 

Exemptions and Deferrals. Federal law requires states to exempt or defer estate recovery in certain situations:

?    When there is a surviving spouse;

?    When there is a surviving child who is under age 21, blind, or disabled; and,

?    In some cases, when a sibling or caretaker adult child lives in the home.

Because deferrals can last a long time, in certain circumstances some states exempt the estate from recovery, while others negotiate settlements or use a combination of exemptions, deferrals, and negotiated settlements.

Consumer Protections – Hardship Waivers. Federal law requires states to waive recovery in situations where it would cause undue hardship for survivors. Most states grant hardship waivers if the estate is an income-producing asset, such as a working farm or ranch, in which case recovery would cause a loss of livelihood for the survivors.

Other hardships can include the property serving as the primary residence of the survivors or the homestead being of modest value. Some states consider whether the survivor would become eligible for public and/or medical assistance if the estate were recovered and whether the survivor made substantial personal or financial contributions to the care of the enrollee, so the enrollee could remain at home.

Notices. The federal government requires states to provide a general notice of estate recovery at the time of Medicaid application and a specific notice before seeking recovery. It also requires that the notice(s) include certain vital information:

• The action the state intends to take;
• The reason for the action;
• The individual’s right to and how to obtain a hearing;
• Procedures for applying for a hardship waiver; and
• The amount to be recovered.

Medicaid is sending letters out through a third party contractor, Health Management Systems.

Conclusion

This recovery program can have a devastating impact on settlement of our cases. Up until recently, Medicaid has not sought recovery. Now it may be forcing probate or filing liens to get recovery.

 

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Medicare Proposes to Stop Paying for Hospital-acquired Conditions 

Beginning in October 2008, the Centers for Medicare and Medicaid Services’ (CMS) will deny Medicare payments to hospitals for preventable hospital acquired conditions:

• Objects left in a patient during surgery

• Blood incompatibility

• Air embolism

• Falls

• Mediastinitis, which is an infection after heart surgery

• Urinary tract infections from using catheters

• Pressure ulcers, or bed sores

• Staphyloccocus aureus septicemia (vascular infections from using catheters)

Charges can not be passed down to patients. The administrative rule stems from a 2006 law but the implementation was delayed for fear that hospitals would pass along the charges to patients. Under the rules, the charges CAN NOT be passed along to the patient.

Implications for Attorneys.  The most obvious would be that if Medicare does not pay for these services, then there can not be a lien from recovery.  Or if you obtain a verdict or settlement on a malpractice claim where Medicare has paid the medical expenses then you could argue that Medicare should receive a refund from the medical provider rather than a lien against the Plaintiff’s recovery. 

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Medicare, Medicaid, and SCHIP Extension Act of  2007 

On December 29, 2007, President Bush signed into law the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public Law No: 110-173). The new law introduces new Medicare Secondary Payer (MSP) data-reporting requirements that will affect employer-sponsored group health plans.

The CMS has begun the process of consulting with impacted parties in developing the reporting requirements for insurers, third party administrators (TPAs) and plan administrators to determine whether a claimant is entitled to Medicare and if so the plan must submit information determined by CMS to CMS in a form and manner specified by the Secretary of Health and Human Services (HHS). An applicable plan that fails to comply is subject to a civil money penalty of $1,000 for each day of noncompliance for each individual for whom information should have been submitted. Any other applicable MSP penalties would continue to apply.

In recent meetings CMS representatives have begun to outline how CMS intends to administer these new requirements. Preliminary discussions have included the following points:

• CMS plans to issue the guidelines for reporting data by July 1, 2008 to provide everyone with one year to prepare for the reporting required effective July 1, 2009; 

• CMS will accept three methods of reporting: web based, direct electronic, and third party electronic;

• Reporting will be required at the time of payment and/or when claimant compensability is determined;

• The focus will be on claims going forward on or after July 1, 2009. Claimants meeting the definition of those to be reported prior to July 1, 2009 are not required to be reported under the new law;

• CMS understands that everyone will not begin reporting at day one and will first concentrate on the larger plans (80/20 rule);

• CMS will provide no safe harbors;

• Each plan must address compliance with the new requirement;

• Reporting formats are being developed for use based on the ISO universal reporting formats.

MEDICARE SET-ASIDE TRUSTS FOR WORKERS COMPENSATION

The changes and extensions within the Act affect all general liability cases, however, the focus seems to be on workers compensation claims.

If you are settling the medical expense portion of a workers compensation case there are certain issues that you must be aware of:

The Center for Medicare and Medicaid Services (CMS) has stated that all workers’ compensation cases where the injured party is a Medicare recipient or is expected to be a recipient within 30 months of date of settlement, or if the amount of settlement is over $250,000, Medicare’ s interests must be considered. A Medicare Set-Aside Allocation amount is determined through the analysis of the particular case. Medicare considers the allocation to be the primary fund for paying Medicare covered expenses compensable to the injury. Once the allocation amount is exhausted, Medicare becomes the primary payor of the Medicare covered expenses for the compensable injury.

42 U.S.C. Sec 1395Y provides the following:

• The Centers for Medicare and Medicaid Services’ interest be protected
• The Centers for Medicare and Medicaid Services have monetary rights against plaintiffs, plaintiff attorneys and plaintiff advisors when the services’ interest is not protected
• The Centers for Medicare and Medicaid Services have double recovery rights against insurance carriers, their legal counsel and their advisors when the interest of the services’ is not protected

The above can be achieved by depositing cash in a Medical Set-Aside Trust (MSAT) equal to the present value amount required to adequately fund all future medical expenses. A structured arrangement in combination is also possible whereby payments are made on a defined schedule to cover expenses paid for future years. Structured settlement annuities with their rated age capabilities and inherent guarantees make them ideally suited for the task of funding the life contingent future payments.

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Medicare Assignment Center

 

TrailBlazer Health Enterprises, LLC

P.O. Box 9020

Denison, TX 87504-2348

Phone (800) 999-1118

Fax  (903) 463-0642

 

Medicare Notice of Settlement

MEDICARE –Coordination of Benefits

Medical Claims Investigation Project

P.O. Box 33847

Detroit, MI 48232-5847

Phone (866) 677-7220

MEDICAID

 

New Mexico Human Services Department

Attn:  Esther Martinez

P.O. Box 2348

Santa Fe, NM  87504

Phone  (505) 476-6877

Fax (505) 827-7236

Presbyterian Salud

Attn: Lynn Blackburn

P.O. Box 92085

Albuquerque, NM 87199-2085

Phone (505) 923-5896

Fax (505) 923-6788

Molina Healthcare of New Mexico

Attn: Lisa Ray Scott
P.O. Box 3887
Albuquerque, NM 87190

Phone (505) 342-4660

Fax (505) 342-4665

Lovelace Health Plan

Attn: Bridgette Palacios

4101 Indian School Rd, NE, Suite 110
Albuquerque, NM 87110

Phone (505) 262-3742

Fax (505) 262-7543

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[1] The Garretson Firm specializes in resolving healthcare liens and reimbursement claims with Medicare, Medicaid and private / ERISA health insurance providers in single event and mass tort settlements.    The firm  evaluates and resolves  over 100,000 reimbursement claims/liens per year and  were recently appointed by the respective federal court’s as Lien Resolution Administrator in the Vioxx, Guidant and Medtronic settlement programs.

I admit that prior to becoming an NMTLA board member I was extremely naive about the relationship between the practice of law, politics, political candidates and fundraising.  The law is created year after year in Courts, Congress, and State Legislatures.  Wealthy corporate interest groups would love for us to fall asleep at the wheel or better yet, die, because we are the individuals who hold them accountable by costing them money when they value profits over human safety.

If we do not financially support those elected government representatives who carry laws designed to protect the rights of injured or exploited people, then our courts will be rendered meaningless because the laws applied will be fundamentally unfair to those individuals who we represent. 

I know that I am preaching to the choir but this message is for those who have not yet contributed financially to fair minded candidates.  The favorable state of the law in New Mexico would not exist except for the half century efforts of those altruistically minded trial lawyers who keep scraping their dollars together to assist the candidates who believe in our cause. Thank you to these individuals who keep digging in their pockets over and over each year. I know some of us do not have as many dollars as others, but if each member contributed a small sum each month we would have hundreds of thousands of dollars annually to fight for justice and the burden would not fall on the few. 

Our battles inside and outside the court room will continue and our battles for candidates who will help us fight for justice will continue.  Whether you are a Democrat or a Republican this election will affect what we are able to do for our clients and what kind of a world we will leave for our children. The issues in this election call for vigorous debate, and I think it’s fair to say that we have answered the call. However, amid our differences, we are in this organization for one purpose – to fight for the rights of the injured and abused. I am hoping that after the election we can come back together and even reach out to those who think differently to find a middle ground that is productive. After all that is what we are asking our national leaders to do – to move our country forward. Despite all the turmoil, I am confident that our collective values and inherent strength will get us through this terrible time.

Please vote and encourage your staff, family and friends to vote.

Denise M. Torres

Whether a democrat or republican, you will probably never forget where you were on November 4, 2008. Americans were joined by people from nations all around the globe to celebrate what is certain to be remembered as a defining moment in American history.  Many Americans reflected a sense of pride even among those who did not vote for the 44^th President of the United States. Oh, how far we have come to have elected a half-African, half-white Midwesterner, with an Arab-sounding middle name, mostly raised by his grandmother in Hawaii 5,000 miles from the U.S. mainland. This event has provided enormous inspiration and hope to even cynical observers. It was thrilling to know that minority voters registered and turned out in record numbers. Younger voters became more engaged in politics. Friends and family members who never registered or voted, did both.

In his August 2008 acceptance speech for the Democratic presidential nomination, Barack Obama made it clear, “ours is a promise that says government cannot solve all our problems”…”programs alone can’t replace parents”… “government can’t turn off the television and make a child do her homework”… Obama’s appeal is that we all step up and assume our “individual and mutual responsibility” to improve life for our families, colleagues and communities. The advocacy of helping someone get elected was absolutely necessary. Now that the election is behind us, let us continue our commitment to making life better for New Mexicans. Many of our families struggle under the stress of our jobs, the rising cost of living, and insufficient time to support the positive development of our children or the well-being of our colleagues. While we hope our government will protect us and invest our resources wisely, we must still respect and safe keep each other’s interests, recognizing that caring for and supporting each other’s success is equally important. I think the members of NMTLA have always supported each other even in the midst of heated debates ranging from political races to judicial appointments.  I have always encouraged each of you to hold on to your beliefs but to please try and understand how it feels to stand in your friend’s/opponent’s/judge’s shoes/stilettos. You can be a fierce, ethical advocate without following someone back to their nest, stomping on their eggs, and wiping out their species.

We have more exciting things coming up like the toy drive and the legislative session. Don Vigil will be asking for help getting toys (My check should already be in the mail) and I will be asking for help to read and analyze bills and help state legislatures understand what bills will hurt New Mexicans. There will be a sign up calendar going around. Please sign up to travel to Santa Fe at some point between January 20, 2009 and March 21, 2009. I thank you in advance for your participation.

Denise M. Torres

During my tenure as NMTLA President I witnessed two historical events. The first was the election of a half-African, half-white Midwesterner, with an Arab-sounding middle name as President of the United States.  The second, only seven months later is the President’s choice of a Hispanic woman, Sonia Sotomayor, to fill the United States Supreme Court vacancy. The appointment makes history because Justice Sotomayor is only the third woman to be appointed to the United States Supreme Court and she is the first judge with a Hispanic background in a country where Hispanics now make up the largest minority. Justice Sotomayor’s legal qualifications span three decades including work at almost every level of the judicial system including serving as a prosecutor, corporate litigator, trial judge, and United States Court of Appeals judge.  She has more experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed. What makes this story fascinating is her unique personal story of growing up in Bronx government projects raised by a single mother who worked two jobs to provide opportunities for her children. Justice Sotomayor graduated summa cum lade from Princeton and served as editor of the Yale Law Journal. Sounds like an American dream. I believe that this inspiring woman with such depth of experience and breadth of perspective will bring additional value to the Supreme Court.

At the time I submitted my last article the session was still in full swing. I think most of us have recovered by now but I wanted to thank all those who worked so hard during this last session. Of course, Peter Mallery and David Duhigg, who work all year round preparing for what we will face during the session.  Pia Salazar who is our President elect did a wonderful job of organizing bill analysis. Hats off to the bill analyzers Paul Abrams, Steve Aguilar, David Archuleta, Ahmad Assed, Karen Aubrey, Theodore Barudin, Lori Bencoe, David Berardinelli, Sam Bregman, Carl Bettinger, Dick Blenden, Kristina Bogardus, Scott Borg, Arthur Bova, Margaret Branch, Turner Branch, Cynthia Braun, Barbara Buck, JD Bullington, William Carpenter, Patrick Casey, Gregory Chase, Randy Clark, Jeffrey Cluff, Greig Coates, Nancy Cronin, Katie Curry, Veronica Dorato, Michael Doyle, David Duhigg, Stephen Durkovich, Roger Eaton, Daymon Ely, Josh Ewing, Steve Ewing, Steven Farber, Richard Feferman, William Ferguson, David Fine, Philip Gaddy, Jane Gagne, Pia Gallegos, David Garcia, Douglas Gardner, Kyle Gesswein, James Gilman, Joseph Goldberg, W. Hal Grieg, Gerald Hanrahan, Richard Hardy, Michael Hart, Dusti Harvey, Rachel Higgins, Corbin Hildebrandt, Lee Hunt, Mac Hunt, David Jaramillo, Mark Jarner, Tammy Jasionowski, Eric Sedillo Jeffries,  William Keeler, Joseph Kennedy, Shannon Kennedy, Chris Key, Randy Knudson, Cherie LaCour, Stephen Lawless, Pierre Levy, Mike Lilley, Anthony Lopez, Cid Lopez, Kathy Love, Amalia Lucero, Randi McGinn, Edwin Macy, Peter Mallery, Ganesha Martin, David Martinez, Kevin Martinez, Richard Martinez, Carolyn Merchant, Elicia Montoya, Ron Morgan, Dennis Murphy, Steven Murphy, Olivia Neidhardt, Joel Newton, Dan O’Friel, Justin Pennington, Brady Pofahl, Victor Poulos, Bryan Query, Feliz Rael, Sam Rasheed, Lisa Richard, Linda Rios, James Roach, Bill Robins, Geoff Romero, Mike Ross, Robert Rothstein, Victor Roybal, Pia Salazar, Benito Sanchez, Maureen Sanders, Janet Santillanes, Joseph Sapien, Phillip Sapien, Devi Maria Schmidt, Fred Sherman, Bob Scott, Dan Shapiro, William Snead, David Stout, Mark Stout, Michael Stout, Patrick Sullivan, Bruce Thompson, Victor Titus, Mia Touchet, Gabrielle Valdez, Richard Valle, Matthew Vance, Ray Vargas, Donald Vigil, Douglas Vigil, Lisa Vigil, Steve Vogel, Scott Voorhees, Roger Wagman, Derek Weems, George Weeth, Duff Westbrook, John Westerman, Peter White,  Terry Word, Joleen Youngers and Diego Zamora. Our great appreciation to those boots/heels on the ground who showed up and waited and waited to speak to the legislators Lori Bencoe, Kristina Bogardus, Nancy Cronin, David Duhigg, Steve Durkovich, Josh Ewing, Steve Ewing, David Garcia, Dana Grubesic, Lee Hunt, David Jaramillo, Tammy Jasionowski, Mike Lilley, Anthony Lopez, Kathy Love, Peter Mallery, Ganesha Martin, Steve Moffit, Elicia Montoya, Dennis Montoya, Ron Morgan, Feliz Rael, Pia Salazar, Bob Scott, William Snead, David Stout, Patrick Sullivan, Ray Vargas, Lisa Vigil, John V. Wertheim, Peter White, Terry Word and Diego Zamora.  Thank those who wrote letters and sent e-mails. Thank those legislators who are champions ensuring that the rights of everyday New Mexicans are vigilantly guarded.

Other legal organizations are amazed at our collegiality, efficiency and effectiveness. When I read this list of caring and committed individuals I am not surprised at the difference we make implementing positive change for people in New Mexico, including promoting justice and fairness for injured persons, defending the constitutional right to trial by jury, and strengthening the civil justice system through education and disclosure of information critical to public health and safety.

It has been a pleasure and an honor to serve as the 2008-2009 NMTLA President for the sixty day session. I would not have been able to serve effectively if not for my partner Angel Saenz and my legal assistant Krista Ross holding down the fort, Karen and Steve Durkovich’s hospitality of providing a beautiful, comfortable home away from home and a lot of help from my friends – Lisa Vigil, Pia Salazar, David Jaramillo, David Duhigg and Peter Mallery thanks for always being one step, one text or one phone call away (ok Duhigg does not text).

Pia, I know you will do a wonderful job as President. We will all be here for you next year.

Thank you,

Denise M. Torres

“Yes we can” if we work together. The work has started in Washington, at the round house and within NMTLA. We must thank Pia Salazar the chair of this years COIR drive for planning and executing the most successful drive in our history. Also, thank you to the board members who participated in the drive and who contributed to COIR.

Many of us are looking to our new President to right the wrongs of the last administration.  The American Association for Justice (AAJ) called on President Obama to repeal regulations that limit corporate liability and fetter individuals’ access to the courts.

AAJ and NMTLA look forward to the Obama administration reaffirming the importance of a civil justice system that complements strong regulations. The efforts to give negligent corporations complete immunity, escape accountability, and leave Americans without any recourse has gone too far and must be reversed. Seven executive agencies have recently issued more than 54 regulations with language that preempts state tort claims. We have a Senate bill (Insurance Product Regulation Compact) being introduced this session that proposes to deregulate insurance which amounts to New Mexico insurance policies being regulated by a private corporation (the Commission) outside the oversight or control of New Mexico. If the bill is passed it eliminates insurance consumer claims being heard in New Mexico. Any claims by or against the “Commission” will have to be heard at its principle office in Washington, D.C. Further, states with strong consumer protections for long-term care policyholders could likely face management committee pressure to roll the policies back if they conflict with uniformity among the states within the compact.

President Obama has the power and will hopefully use it to restore the traditional balance between federal regulation and state-based consumer protections and ensure injured Americans have access to the courts when injured by negligence or misconduct. NMTLA is asking the same of our legislators during this sixty day session.

AAJ is also asking the U.S. Food and Drug Administration to open a rulemaking proceeding to “reinstate congressional intent” regarding the ability of consumers to hold medical device manufacturers accountable for their injuries, even from FDA-approved devices.

It is apparent that AAJ hit the ground running in the beginning days of the new Congressional session.  I hope NMTLA has done the same. David Duhigg and Pia Salazar have already asked many of you to review bills. Thank you for your thorough and thoughtful analysis. Many of you have already spent time in Santa Fe educating the legislators about bills that will harm New Mexicans. Thank you. Your time and your commitment (COIR contributors) is what has kept New Mexico’s consumer friendly laws alive and well.

Thank you to those Presidents and NMTLA Board Members who have come before me. I have always been amazed by this caring and committed group of inspiring professionals who by legal victories achieved on behalf of their clients make the world a better place – one case and one client at a time. Through your dedication and hard work you have built an efficient team who work tirelessly all year to effect positive change for people in New Mexico, including promoting justice and fairness for injured persons, defending the constitutional right to trial by jury, and strengthening the civil justice system through education and disclosure of information critical to public health and safety.

Serving as the President of the New Mexico Trial Lawyers Association will be a big commitment, as it is for the sixty day session. We can anticipate much of the same in Santa Fe this session, including the need to protect patient safety and the rights of those seriously injured or killed by medical malpractice and nursing home negligence; safeguard workers; and defend consumers from insurance lobbies looking to take away rights of those injured by wrongdoers.  Many of you have already pledged your willingness to volunteer your time and effort at the Roundhouse. Without the tremendous support from the Board and the NMTLA members we would not be so successful preserving New Mexican’s rights to hold wrongdoers accountable.  

Many of the challenges we will face will be the same and there will be new political and legal threats to fundamental principles of justice. Nonetheless, I know that serving as President is one of the most worthwhile commitments I can make in my career. I am both humbled and honored to take on the challenge and responsibility of the NMTLA Presidency. I look forward to working with my colleagues to ensure that the rights of everyday New Mexicans are vigilantly guarded.

                                                               – Denise M. Torres

Other than your medical bills your lost time and earnings commonly called lost wages are the days and hours you were unable to work due to injury and medical appointments. In many instances you can claim your lost time and earnings, even if you’ve had no actual loss of money. For example, when your salary is paid because you have taken sick leave, or because of an Accident and Health Policy that is available to you.

DOCUMENTATION OF LOST INCOME: If you are regularly employed by someone else, ask your supervisor, to write a letter for you, on company stationary. This letter should include: Your name, position, rate of pay, number of hours you normally work and the number of days, and/or weeks, you missed because of the accident.

Be ready to discuss with the insurance adjuster the following:

#1. If your work demands heavy labor and/or lifting.

#2. If you lost any vacation time or sick leave.

#3. If there was any loss of future earning capacity.

#4. If you were absent from one or more business meetings.

#5. If you were unable to make appointments with important or potential customers.

#6. If you had an opportunity for an interview that may have led to a better job.

SHOULD YOU BE SELF-EMPLOYED OR OWN A BUSINESS: Be sure to collect for the cost of any additional help you were forced to hire while undergoing medical treatment and/or recuperating. PREPARE YOURSELF AND BE READY TO DISCUSS: If your work demands heavy labor or lifting, how many hours you normally work each day and week, your average income per week, if your business lost money while you were laid up, and have proof as to how much.

To substantiate your claim you should consider presenting to the adjuster whatever documents will prove a loss in billing or services. Two simple examples would be:

#1. A diary or calendar showing appointment’s you had to cancel.

#2. Letters (or documents) which clearly reflect the reality of important business meetings you had no choice but were unable to attend.

COMMISSIONS AND OVERTIME: Commissions and overtime are absolutely legitimate losses you can claim. Be sure to obtain a letter from your employer, on his letterhead, spelling out the approximate amount of money you lost in commissions and overtime. This can be accomplished by reviewing last year’s figures, during the same period, then averaging them out for that identical space in time you were unable to work.

Be sure to collect for the full Gross wage’s you lost, not just the Net.

    One the most difficult decisions family members have to make is choosing a nursing home to place a loved one. John F. Kennedy said once that the strength and durability of a society can be judged by how it treats its elderly. From the cases my firm has investigated, we are not treating our elderly very well. 

     In general, we find that not-for-profit homes deliver better care than for-profit ones, and independently run homes provide better care than chains.   Data from the United States General Accounting Office shows that as of 2002, there were 1.7 million people living in 17,000 nursing homes in the United States.  Two-thirds of these patient’s bills were paid through Medicaid and Medicare an amount of about $42 billion in 2002. In New Mexico in 2002, over 80% of the nursing homes violated federal health and safety standards during state inspection. What is disturbing is that most of the “surprise” inspections were expected. 

         The following are some of the steps families can take when looking for a nursing home for a loved one:

• Read the Nursing Home Quality Monitor for homes to avoid and homes to consider. Start with the well performing homes that are near where you or your loved one live.
• Remember that nursing homes change ownership frequently and that a poor-performing home can become a good one (or vice versa) within a matter of months.
• Independent, nonprofit homes are generally the best place to start, but there are chains that rank in the middle of the pack that also provide good care.
• Read each home’s Form 2567, the state’s inspection survey of the facility. These surveys are public documents which you can obtain from the New Mexico Department of Health. If the home won’t make it available to you, be worried that there is something to hide.
• Make several unannounced visits to the facility. Danger signs would be seeing a lot of residents sleeping in the middle of the morning when you would want to see them up and about; substandard food at meals; or no snacks.

Denise M. Torres can be contacted at 505-526-3333 or via e-mail at DMT@zianet.com.

There are up to 80,000 reported child sexual abuse cases per year. Sadly, the number of unreported instances is far greater, because the children are afraid to tell anyone what has happened, and the legal procedure for validating an episode is difficult. The problem should be identified, the abuse stopped, and the child should receive professional help. The long-term emotional and psychological damage of sexual abuse can be devastating to the child.

Often there are no obvious physical signs of child sexual abuse. Some signs can only be detected on physical exam by a physician.

Sexually abused children may develop the following:

• unusual interest in or avoidance of all things of a sexual nature
• sleep problems or nightmares
• depression or withdrawal from friends or family
• seductiveness
• statements that their bodies are dirty or damaged, or fear that there is something wrong with them in the genital area
• refusal to go to school
• delinquency/conduct problems
• secretiveness
• aspects of sexual molestation in drawings, games, fantasies
• unusual aggressiveness, or
• suicidal behavior

Parents can prevent or lessen the chance of sexual abuse by:

• Telling children that if someone tries to touch your body and do things that make you feel funny, say NO to that person and tell me right away
• Teaching children that respect does not mean blind obedience to adults and to authority, for example, don’t tell children to, Always do everything the teacher or baby-sitter tells you to do
• Encouraging professional prevention programs in the local school system

Sexually abused children and their families need immediate professional evaluation and treatment. Child and adolescent psychiatrists can help abused children regain a sense of self-esteem, cope with feelings of guilt about the abuse, and begin the process of overcoming the trauma. Such treatment can help reduce the risk that the child will develop serious problems as an adult.