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Read the latest news and reviews about Jason D. Lazarus’ books, The Art of Settlement and Litigation to Life.
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Most, if not all, ERISA health insurance plans state that injuries caused by a liable third party are not a covered expense and require reimbursement when a plan pays for injury-related medical expenses (often referred to as subrogation clauses). ERISA provides that health plans which qualify under its provisions can bring a civil action under section 502(a)(3) to obtain equitable relief to enforce the terms of the plan. Appropriate equitable relief is really the only enforcement mechanism an ERISA plan can utilize to address its reimbursement rights contained in the plan.
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The Medicare program-and the related Social Security Disability Income/Retirement benefit (SSDI)-is one of the primary benefit programs available to those who are injured and disabled. Understanding the basics of this program is imperative to protecting the client's eligibility for their benefits.
Medicare and SSDI benefits are an entitlement and are not income or asset sensitive. Clients who meet Social Security's definition of disability and have paid enough quarters into the system can receive disability benefits regardless of their financial situation.
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What do you do when you settle a case like this where your client is on public assistance, there are allocation issues, settlement planning issues must be addressed, and there are liens to negotiate? Where can you “park” the money while you set up any necessary public benefit preservation trusts, determine allocation of the proceeds, figure out a financial plan, and negotiate the liens? How can you get the money from the defendant immediately without ruining the client’s available settlement planning options? The answers to all these questions is to use a Qualified Settlement Fund (QSF or 468B QSF).” In this excerpt from my Amazon Best-Selling book Art of Settlement, I explain how and why to leverage Qualified Settlement Funds to deal with complicated planning issues at settlement. This is an issue that I am frequently asked about. How do I quickly settle a case and receive the settlement proceeds yet provide the needed breathing room to resolve liens, deal with the MSP or preserve Medicaid/SSI?
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6 Real-World Considerations for Advanced Settlement Planning
In the confusing landscape of public benefits and planning issues that arise today for trial lawyers when settling catastrophic injury cases, finding your way can be a daunting task.” In this excerpt from my Amazon Best-Selling book Art of Settlement, I identify six key considerations to look out for when settling a case for a catastrophically injured client. This is an issue that I am frequently asked about. How do you protect a catastrophic injured client with a comprehensive plan as they settle their personal injury claim?
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How to Use a Special Needs Trust to Preserve Benefits Eligibility for Disabled Injury Victims
When a client receives personal injury proceeds, it can cause them to become ineligible for means-based-tested government benefit programs. On paper, their settlement makes them look like they’ve hit a windfall, when in fact, they need that money to pay their medical expenses and to continue receiving the care they need. In many cases, a Special Needs Trust is an important planning tool for making sure that your client remains eligible for public assistance while still complying with all federal laws. Here’s how they work.” Excerpt from my Amazon Best-Selling book Art of Settlement and an issue that I am frequently asked about. How do you protect needs-based government benefits like SSI & Medicaid when settling a catastrophic claim?
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What is a Medicare Set-Aside?
While there is no regulation or statute requiring anything be done when it comes to Set-Asides, ignoring the issue isn’t the answer. According to CMS, since Medicare isn’t supposed to pay for future medical expenses covered by a liability or workers’ compensation settlement, judgment, or award, it recommends that injury victims set aside a sufficient amount of a personal injury settlement to cover future medical expenses that are Medicare covered. In other words, it’s not required, but failing to address this issue can result in a future denial of injury-related care by Medicare” Excerpt from my Amazon Best-Selling book Art of Settlement and an all too frequent question I am asked about. How do you determine what to do when settling a case for a Medicare beneficiary?
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Reducing Medicaid Liens: Why Was the Ahlborn Case Such a Significant Victory for Injury Victims?
As a trial lawyer, it is important to understand the underpinnings of the Ahlborn decision so you can apply them to your state’s third-party liability recovery provisions. The important thing to remember is that this case limits a state Medicaid agency’s recovery rights related to a third-party liability settlement. In order to reduce a Medicaid lien, state-specific statutes must be followed, but arguments to reduce should be based on the principles espoused in Ahlborn so that the lien is reduced in proportion to the full value of damages versus what was received.” Excerpt from my Amazon Best-Selling book Art of Settlement and important information about the law related to reducing Medicaid liens. How does Ahlborn limit what a Medicaid state agency can recover from a personal injury settlement?
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How the Advent of the Mandatory Insurer Requirement Causes Problems for Lawyers
If you settle a case for a Medicare beneficiary, do you know what information the other side is reporting to Medicare? If not, you are running a risk. Mandatory Insurer Reporting under Section 111 requires defendant/insurers to report settlements of $750.00 or more to Medicare. The reporting includes ICD codes which can trigger a denial of care. Also, misreporting of the date of accident can trigger a second final demand from Medicare. You have to know what is reporting.
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Greater Understanding for More Effective ERISA Lien Negotiation
In fighting plans, the first and most important question is whether the plan is self-funded. A self-funded plan is funded by contributions from the employer and employee. If it is self-funded, then ERISA preempts state law and you are left with fighting an uphill battle under McCutchen. If it is fully insured, then the ERISA plan is subject to state law subrogation statutes or general equitable principles under common law. These are plans which are funded by purchased insurance coverage.” Excerpt from my Amazon Best-Selling book Art of Settlement and an all too frequent scenario I am asked about. How do you determine funding status? How do you fight tough ERISA recovery contractors?
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The Unregulated New Frontier of Medicare Set-Asides
Consider this scenario: you represent a current Medicare beneficiary in a third-party liability case. As part of the workup of the case, you determine the client will need future medical care related to the injuries suffered, and you settle the case. Since the client is a Medicare beneficiary, the defendant will report the settlement under the Mandatory Insurer Reporting law as it is greater than $750 in gross settlement proceeds. The defendant puts some language into the release about a Medicare Set-Aside being the injury victim’s responsibility and that they can’t shift the burden. Everyone signs the release and settlement dollars are paid. The file is closed, then forgotten. What happens though if that course of action triggers a denial of future care by Medicare?
Excerpt from my Amazon Best-Selling book Art of Settlement and an all too frequent scenario I am asked about. What do you do? How do you address Medicare compliance?
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