Despite State Court Order, NJ Federal Court Finds Plaintiff Responsible for Conditional Payments

On June 12, 2013, the United States District Court for the District of New Jersey published its opinion in Taransky v. Sebelius, finding that the Court lacked subject matter jurisdiction over Ms. Taransky’s “due process” and “proportionality” claims, as Ms. Taransky failed to administratively exhaust these claims. Additionally, the Court concluded that despite state trial court’s order on a stipulation allocating settlement recovery to non-medical expenses, Ms. Taransky received payment from a “primary plan” responsible for payment of her medical expenses that had been covered by Medicare. As a result, Ms. Taransky is required to reimburse Medicare $10,121.15 pursuant to the MSP Act.

This case arose from a trip-and-fall accident that occurred on November 7, 2005 in Mount Laurel, New Jersey. Ms. Taransky was injured and, as a result, the federal Medicare program paid $18,401.41 in conditional payments.  Ms. Taransky sued the owners and operators of the shopping center on October 26, 2007, seeking damages for her personal injury losses. On October 26, 2009, Ms. Taransky settled the claims against these tort defendants in return for a lump-sum payment of $90,000.00.

Following the settlement, Ms. Taransky’s counsel filed a “Motion to Adjudicate Allocation of Settlement Proceeds” in the Superior Court of New Jersey, in Burlington County, that included a proposed order stating that “no portion of this recovery obtained by plaintiff in this matter is attributable to medical expenses or other benefits compensated by way of a collateral source.” In addition to the proposed order, Plaintiff’s counsel filed a “certification,” in which he stated that “New Jersey law does not permit a plaintiff’s tort recovery of losses (such as medical expenses) that have been compensated by way of collateral sources of benefits, such losses were not considered in settlement negotiations between the parties to this action and are not part of any recovery that may be obtained.” The state court entered the proposed order on November 20, 2009.

On December 8, 2009, the Medicare Secondary Payer Recovery Contractor, on behalf of the Centers for Medicare and Medicaid Services (“CMS”), sent Ms. Taransky a letter request that she reimburse Medicare $10,121.15. She disagreed and on January 4, 2010, Ms. Taransky sought redetermination from the Medicare Secondary Payer Recovery Contractor. The request was  denied by letter dated March 30, 2010. Ms. Taransky again sought redetermination of Medicare’s reimbursement decision, which a “Qualified Independent Contractor” affirmed via letter dated October 15, 2010. Ms. Taransky then proceeded before an Administrative Law Judge (“ALJ”) by way of telephonic hearing on March 9, 2011.

Ms. Taransky made the following arguments before the ALJ: (1) under the Medicare Secondary Payer Manual, Chapter 7, § 50.4.4, “the only situation in which Medicare recognizes allocations of liability payments to non-medical losses is when payment is based on a court order on the merits of the case” and that Medicare must defer to the state court’s allocation order because through its order, “the state court issued a decision on the merits of the case in which it allocated no part of the settlement to medical expenses or other benefits by way of a collateral source”; (2) the New Jersey Collateral Source Statute (“NJCSS”) “prohibits a plaintiff’s tort recovery from including any insured loss, apart from worker’s compensation and life insurance benefits” and as such, the Medicare payments were a collateral source and a New Jersey court would be legally prohibited from including them in any verdict; (3) Medicare is obligated to abide by the state court’s order; and (4) “reimbursement would be inequitable and that it would be unfair for Medicare to be ‘made whole’ for its expenditures from the already inadequate compensation received by the Beneficiary.”

The ALJ analyzed and rejected those arguments in its opinion issued April 15, 2011, finding that the state court’s order was not “on the merits” of the case, as it was issued pursuant to a stipulation of the parties and Medicare is therefore not required to defer to the state court’s order. Further, the ALJ determined that the NJCSS does not apply to conditional Medicare benefits. Therefore the Collateral Source Statute does not affect the Beneficiary’s legal obligation to reimburse Medicare. Thus, the ALJ rejected Ms. Taransky’s arguments and determined that she was liable for repayment of Medicare’s conditional payments.

Ms. Taransky appealed the ALJ’s determination to the Medicare Appeals Council (“MAC”), who rendered its decision on May 11, 2010, finding “no error in the ALJ’s decision.” Accordingly, the MAC adopted the ALJ’s decision “in its entirety” and added a discussion of a then-recently decided case, Mason v. Sebelius, No. 11-2370, 2012 U.S. Dist. LEXIS 40592, 2012 WL 1019131 (D.N.J. Mar. 23, 2012) (Simandle, J.) In addition, the MAC made a factual finding that “the $90,000 settlement in this case and the accompanying release of all claims against the defendants included compensation for medical expenses already paid for by Medicare with conditional payments.”

On July 16, 2012, Ms. Taransky filed the instant lawsuit, through which she asserted claims for “declaratory judgment and injunctive relief,” “violation of due process rights under the Fifth and Fourteenth Amendments to the Constitution,” and “for unjust enrichment.” Ms. Taransky also sought relief on behalf of a “class of all other persons similarly situated who had obtained tort recoveries subject to New Jersey law and were subjected to improper claims for reimbursement of Medicare out of their personal injury recoveries.”

On November 7, 2012, Defendants moved the Court to dismiss Ms. Taransky’s Complaint, or, in the alternative, enter an order of summary judgment in favor of Defendants. The Court heard oral argument in this matter on May 13, 2013. The Court’s findings are as follows:


1. Subject Matter Jurisdiction and Proportionality


In bringing their motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), Defendants asserted a factual challenge to the Court’s subject matter jurisdiction over Ms. Taransky’s claim “for violation of due process rights under  the Fifth and Fourteenth Amendments to the Constitution.” Defendants contended that 28 U.S.C. § 1331 does not confer jurisdiction over these claims that arise under the Medicare Act, and because Ms. Taransky has failed to pursue these claims through the Medicare administrative process, the Court does not have subject matter jurisdiction.

Plaintiff argued that her due process claims are properly before the Court because the basis for her constitutional claims “is not the adverse CMS administrative decision nor even the availability of the CMS administrative process per se,” but that “CMS administrative procedures fail to address the issue of its systemic disregard for the limits of statutory authority” and renders “those administrative procedures fundamentally flawed.” In contrast, Defendants direct the Court to Mason v. Sebelius, No. 11-2370, 2012 U.S. Dist. LEXIS 40592, 2012 WL 1019131 (D.N.J. Mar. 23, 2012), where Judge Simandle concluded that the claim was “one ‘arising under’ the Medicare act and the third sentence of § 405(h) therefore deprives the Court of federal question jurisdiction.” The Court agreed with Judge Simandle’s reasoning that this “due process” claim arose under the Medicare Act. Further, Ms. Taransky had ample opportunity to channel her constitutional claim throughout the administrative process, and she had not shown otherwise. Accordingly, the Court granted Defendants’ motion to dismiss Ms. Taransky’s Due Process claim.

Ms. Taransky argued for the first time before the Court that, under Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006), Defendants’ entitlement to reimbursement should be “limited to the amount actually recovered by a beneficiary in respect of medical expense, or, where no such allocation is made, a proportionate share of the recovery.” Defendants contended that this argument was not properly before the Court because Plaintiffs failed to administratively exhaust the claim. The Court agreed. Its review of the administrative record reveals that Plaintiff did not raise her Ahlborn / proportionality claim during the administrative process, yet, for the first time, asked the Court to limit Defendants’ entitlement to Medicare reimbursement. Because Plaintiff had not administratively exhausted the claim as required under Section 405(g), it was not properly before the Court and the Court therefore lacked jurisdiction to consider it.


2. Medicare Reimbursement Claims

Defendants next sought dismissal or an entry of summary judgment on Plaintiff’s fully-exhausted claims for  “Declaratory Judgment and Injunctive Relief” and “Unjust Enrichment,” through which Plaintiff challenged the Medicare Appeals Council’s decision to uphold Medicare’s reimbursement claim. Specifically, Ms. Taransky sought from the Court a “reversal of the MAC decision; a judgment relieving her of liability to reimburse the Medicare program to that portion of her tort recovery representing the primary plan’s demonstrated responsibility for medical expenses covered by the program; and a refund of all monies improperly paid to defendants in respect of the Medicare reimbursement claim.” Ms. Taransky also asked for relief on behalf of a “class of all other persons similarly situated who had obtained tort recoveries subject to New Jersey law and were subjected to improper claims for reimbursement of Medicare out of their personal injury recoveries.”

Defendants asserted that they were entitled to an entry of summary judgment upholding the MAC’s decision and they again point to Judge Simandle’s opinion in Mason v. Sebelius, No. 11-2370, 2012 U.S. Dist. LEXIS 40592, 2012 WL 1019131, (D.N.J. March 23, 2012), which, as previously discussed, confronted many of the issues raised in this case. In Mason, Judge Simandle engaged in a thorough review of the MSP, the NJCSS, and New Jersey case law and ultimately found that the New Jersey Supreme Court would likely conclude that conditional Medicare benefits subject to reimbursement are not a collateral source under the NJCSS and therefore does not apply to exclude conditional Medicare benefits from a tort settlement or judgment.

The Court found that the MAC and ALJ properly addressed the issue of the state allocation order. The MAC adopted the ALJ’s decision in its entirety, including the ALJ’s conclusions with regard to the state court’s allocation order. In rendering its decision, the ALJ addressed Ms. Taransky’s attempt to apply the Medicare Secondary Payer Manual, Chapter 7, § 50.4.4 to her case, as she did again in arguing the instant case before the Court. This section provides, in relevant part, that “[t]he only situation in which Medicare recognizes allocations of liability payments to nonmedical losses is when payment is based on a court order on the merits of the case.” Ms. Taransky asserted, as she does here, that “through an Order to Adjudicate the Allocation of Settlement Proceeds, the state court issued a decision on the merits of the case in which it allocated no part of the settlement to medical expenses or other benefits compensated by the way of a collateral source” and Medicare must therefore recognize this allocation.

However, the ALJ properly rejected this argument, reasoning that, “on the merits’ means, a court order delivered after a court has heard and evaluated the evidence and the parties’ substantive arguments.” The ALJ determined that the state court’s order “was not made pursuant to a determination by a court of any substantive issue with respect to a primary negligence suit, including determinations regarding fault or damages” and “[i]nstead, the Order was issued pursuant to a stipulation of the parties” and “the Beneficiary cannot cancel out her legal duties through a stipulation with a third party.” Here, the Court found that the ALJ properly reached its conclusion that the state court’s order, entered upon a stipulation of the parties, did not constitute a “court order on the merits of the case” as contemplated under Chapter 7, § 50.4.4 of the Medicare Secondary Payer Manual. Accordingly, this conclusion, coupled with the MAC’s factual determination that the settlement included compensation for medical expenses already paid for by Medicare with conditional payments, which this Court must regard as “conclusive” under Section 405(g), lead the Court to affirm the MAC’s decision.

This case illustrates the fundamental principle that Medicare’s interests cannot be stipulated away by the parties to tort litigation. It reinforces Medicare’s rights as paramount despite judicial approval of settlement documentation. Additionally, it seemingly settles the issue regarding Medicare benefits as a collateral source in New Jersey, holding that conditional Medicare benefits subject to reimbursement are not a collateral source and therefore cannot apply to exclude conditional Medicare benefits from a tort settlement or judgment.

US House of Representatives Passes SMART Act of 2012

Russell S whittle, Esq VP MSP ComplianceThe United States House of Representatives today passed the Saving Medicare and Repaying Taxpayers (SMART) Act as part of a broader legislative effort. The SMART Bill was attached to House Bill 1845 Medicare IVIG Access Bill which provides for a study on issues relating to access to intravenous immune globulin (IVIG) for Medicare beneficiaries in all care settings and authorizes a demonstration project to examine the benefits of providing coverage and payment for items and services necessary to administer IVIG in the home.

The SMART Bill allows the claimant or applicable plan to notify the Secretary of HHS 120 days before the expected date of settlement, judgment, award, or other payment, and obtain a statement of the reimbursement amount from a website the Secretary will make available. If settlement, judgment, award or other payment is made during such period, then the last statement of reimbursement amount downloaded during such period shall constitute the final conditional amount subject to recovery related to such settlement, judgment, award, or other payment. No later than November 15 before each year, the Secretary is required to calculate and publish single threshold amount for settlements, judgments, awards or other payments for conditional payment obligations from liability insurance (including self-insurance), workers’ compensation laws or plans, and no fault insurance for that year. Each such annual single threshold amount for a year shall equal the expected average cost of collection incurred by the United States (including payments made to contractors) for a conditional payment from liability insurance (including self-insurance), workers’ compensation laws or plans, and no fault insurance.

As for the $1,000 mandatory insurer reporting penalty, the Bill states that insuring entities “may be subject” to a civil money penalty of up to $1,000 for each day of noncompliance. The Secretary must publish a notice in the Federal Register soliciting proposals for the specification of practices for which sanctions will not be imposed, including for good faith efforts to identify a beneficiary. After considering the proposals submitted, the Secretary, in consultation with the Attorney General, shall publish in the Federal Register proposed specified practices for which such sanctions will not be imposed. After considering any public comments, the Secretary shall issue final rules specifying such practices.

The Bill also modifies reporting requirements so that an applicable plan is permitted, but not required, to access or report to the Secretary beneficiary social security account numbers or health identification claim numbers.

In addition, the Bill establishes a statute of limitations by indicating that an action may not be brought by the United States with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made.

The SMART Bill was described as a bipartisan effort targeted at improving the Medicare Secondary Payer system and to create efficiency and accountability in the MSP Recovery system.

The Bill will now move on to the United States Senate where it could be presented for vote or referred to a committee where it may be reviewed to determine whether it requires additions, deletions or other modifications or whether it can be approved in the form submitted.  Gould and Lamb is actively monitoring and is involved with many legislative bills and committees including the SMART Act  We will continue to follow the Bill’s progress as it moves over to the Senate and will keep our clients informed.  If anyone has any questions please feel free to contact your Gould & Lamb representative directly or the entire executive is available to answer any questions.

Click Here to Download the MSP Compliance Protocols User Guide from Gould and Lamb

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About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.

Gould & Lamb is a global leader of MSA/MSP Compliance Services in the country, serving domestic and international insurance companies, third-party administrators and self-insured entities.

Louisiana Federal District Court Approves MSA Based on G&L Expert Testimony

Russell S whittle, Esq VP MSP ComplianceOn August 30, 2012, the Federal District Court of Louisiana, Western District, LaFayette Division, published its opinion in Bessard v. Superior Energy Services, finding that there was no evidence that Mr. Bessard, his attorneys, any other party or any other party’s representative, were attempting to maximize aspects of the settlement to Medicare’s detriment. As a result, the court concluded that to the extent that Mr. Bessard receives confirmation from Medicare of any conditional payments made by Medicare for services provided prior to settlement, Mr. Bessard shall promptly reimburse Medicare for such conditional payments. In addition, Mr. Bessard shall allocate $6,701.00 out of the settlement proceeds for payment of future medical items or services, which would otherwise be covered or reimbursable by Medicare, related to the conditions claimed and released in the case.

Gregory J. Bessard was injured in a workplace accident on June 30, 2009. His case was settled amicably after lengthy negotiations. The defendant agreed to pay the plaintiff the sum of $785,000. The settlement called for Mr. Bessard to assume the obligation for payment of his future medical expenses, which were to be calculated through a MSA.

Although Mr. Bessard was not a Medicare beneficiary at the time settlement was reached, Mr. Bessard was receiving Social Security disability benefits in connection with the injuries sustained in the accident. As a result, various medical reports were accumulated and a MSA was prepared by Gould & Lamb.

Based on the information provided by Mr. Bessard’s treating physicians, utilizing the fee schedule applied in claims brought under the Longshore and Harbor Workers’ Compensation Act, Gould & Lamb determined that Mr. Bessard’s future potential medical expenses that would be covered by Medicare and that were related to the injuries claimed and released amounted to $6,701.00.

Although the parties wanted the MSA approved by CMS for purposes of complying with the provisions of the MSP and the commensurate regulations, the parties were concerned that the settlement could not be finalized and cited the delays associated with obtaining approval from CMS and the possibility that approval may not ever be forthcoming.

In an effort to avoid jeopardizing the settlement and to achieve compliance with the provisions of the MSP, the plaintiff and defendant jointly filed a motion for Declaratory Judgment seeking (1) approval of the settlement, (2) a declaration that the interests of Medicare are adequately protected by setting aside a sum of money to fund Mr. Bessard’s reasonably anticipated future medical expenses related to the injuries claimed and released in the lawsuit, and (3) an order setting that amount aside from the settlement proceeds and depositing it into an interest bearing checking account to be self-administered by Mr. Bessard.

The Court set the matter for an evidentiary hearing and ordered service to be made by the Clerk of Court on the Secretary of Health and Human Services, the chief counsel of HHS/OGC for Region VI, and the civil chief of the office of the United States Attorney for the Western District of Louisiana. By letter dated August 20, 2012 from the office of the United States Attorney for the Western District of Louisiana, the Court was advised that HHS/CMS would not participate in the hearing.

At the hearing, the Court heard testimony from Patricia Kent, staff attorney with Gould & Lamb LLC, who was accepted as an expert in MSA/MSP issues, and who explained how the MSA evaluation was prepared. Although the most recent reports from the physicians treating Mr. Bessard did not state that additional diagnostic testing was necessary or that Mr. Bessard would require future visits with his physicians or additional physical therapy, the standard applied by Gould & Lamb in preparing the MSA was to consider all reasonably foreseeable medical expenditures.

The Court found that the methodology used by Gould & Lamb to calculate the estimated future medical costs, as set forth in the MSA, was both reasonable and reliable. The Court further found based upon MS. Kent’s testimony, that the future services listed in the MSA were reasonably foreseeable, adequately considered Medicare’s interests under the MSP, and the amount set forth in the MSA adequately protected Medicare’s interests.

As the premier and most trusted MSP vendor in the country, this case again highlights the usefulness and benefits of Gould & Lamb’s comprehensive array of MSP services. In addition to Mandatory Insurer Reporting, Conditional Payment Resolution, Medicare Set Asides, Post Settlement Account Administration, Prescription Drug Program, Future Medical Costs Projections, and Life Care Plan services, Gould & Lamb also offers Settlement Language Guide, Settlement Document Review, MSP Exposure Analysis, and Expert Testimony services.

Gould & Lamb provides its clients with Medicare Compliance Services and Programs focused on reducing claim costs and positioning claims for settlement. To this end, Gould & Lamb has prepared a Settlement Language Guide to assist insurers and self insured entities navigate the complex sea of Medicare Secondary Payer compliance. The guide contains language for possible claims settlement scenarios with a description and analysis of possible actions. Once the Conditional Payment or Medicare Set Aside issue has been brought to light, Gould & Lamb will assist with recommending MSP appropriate and protective settlement language. If you have already produced settlement documentation that contains such language, Gould & Lamb will review same and make recommendations on any needed changes, additions, or deletions. Gould & Lamb also offers our clients detailed and specific to the claim analysis of all Medicare Secondary Payer exposure issues that may exist in your case. Gould & Lamb’s extensive and experienced MSP legal team will provide a written analysis, including statutory, regulatory, and case law citations, that outlines any Medicare Secondary Payer exposure and recommends solutions to any discovered potential problems or issues. Gould & Lamb also provides expert advice on MSP issues, available to provide expert testimony on any MSP issue at meetings, mediations, depositions, hearings, trials, or any other event our client deems our expert analysis helpful or necessary.

Click Here to Download the MSP Compliance Protocols User Guide from Gould and Lamb

Download the MSP Compliance Protocols user guide today!


About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.

Gould & Lamb is a global leader of MSA/MSP Compliance Services in the country, serving domestic and international insurance companies, third-party administrators and self-insured entities.

Changes at CMS May Signal Different Approach

Russell S whittle, Esq VP MSP ComplianceLeadership Change at CMS

Don Berwick, the Harvard professor who was tapped by the Obama administration to lead the overhaul of the massive Medicare and Medicaid programs, resigned just months before he was scheduled to leave his post. On November 29, Marilyn Tavenner, a former health official from Virginia, was installed by the administration to head the Centers for Medicare and Medicaid Services (CMS).

The change in leadership comes amid a very interesting series of events that, some would argue, signaled a more reasonable and responsible approach to Medicare’s recovery rights and activity.

Change in Conditional Payment Procedure

CMS recently made changes to the process and procedure of conditional payment recovery in liability cases. As has been widely reported, the Medicare Secondary Payer Recovery Contractor (MSPRC) published on their website an Alert.  The Alert advised that starting September 6, 2011, in the case of a lump sum settlement of $300 or less, Medicare may not recover from that settlement, based on certain criteria. If the beneficiary’s settlement, judgment, award or other payment is related to an alleged physical trauma-based incident, the liability insurance (including self-insurance) settlement, judgment, award, or other payment is $300 or less, the beneficiary has not received and does not expect to receive any other settlements, judgments, awards, or other payments related to the incident and Medicare has not previously issued a recovery demand letter, recovery will not be pursued.

Also, the MSPRC has implemented a new and “simple” fixed percentage recovery option that is available to certain beneficiaries effective November 7, 2011. The Fixed Percentage Option gives beneficiaries who have physical trauma-based Liability insurance (including self-insurance) settlements of $5,000 or less the ability to resolve Medicare’s recovery claim by paying Medicare 25% of the total liability insurance settlement instead of using the current recovery process.

CMS Philosophy Change?

These procedural changes were made in the face of H.R. 1063, the “SMART” Act, followed by the Senate version of the Bill, S. 1718. While the Bill is multi-faceted, it includes a provision requiring CMS to ensure that the government does not spend more money pursuing a Medicare Secondary Payer (MSP) recovery claim than it will actually recover from that claim. A threshold would be set (annually by the CMS Actuary) at the amount of settlement likely to yield a MSP collection at or below the government’s recovery cost. Thus, the recent changes seem to suggest that CMS has determined that recoveries on settlements of less than $300 are not cost effective, nor is negotiating lien recovery on nuisance value settlements. It can be argued that CMS has begun the process of institutional reform that considers the realities of tort litigation while under Dr. Berwick’s leadership. While the efforts seem trivial in the short term, there appears to be evidence that the conditional payment process, at least, was being revamped without the need for legislation. How the change in leadership will effect the process is anyone’s guess. HPreview Changesowever, we may be on the precipice of institutional and philosophical changes at CMS that may make further legislative attempts at change unnecessary.

Click Here to Download the MSP Compliance Protocols User Guide from Gould and Lamb
Download Gould and Lamb’s Medicare Secondary Payer Compliance and Protocols User Guide

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About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.

New Fixed Percentage Option for Conditional Payment Resolution

Christie Luke Vice President Operations

As expected, on November 7th, the Centers for Medicare & Medicaid Services (CMS) implemented a new fixed percentage option for Conditional Payment Resolution (CPR).  The new fixed percentage option makes the process simpler and faster.  Any beneficiary who meets the criteria below can resolve Medicare’s Conditional Payment recovery claim by paying a flat 25% of his/her total liability insurance settlement.

Required Criteria

In order to qualify, all of the following criteria must be met:

  1. The liability insurance settlement must be for a physical trauma based injury, and
  2. The total liability settlement, judgment, award, or other payment is $5,000 or less, and
  3. The beneficiary elects the option within the required time frame
  4. Medicare has not issued a demand letter or other request for reimbursement related to the incident, and
  5. The beneficiary has not received and does not expect to receive any other settlements, judgments, awards, or other payments related to the incident.

When to Exercise the Option

There are some guidelines as to when to exercise the option:

  1. The request must be submitted before or at the time the settlement documentation is submitted.
  2. If a Conditional Payment Notice (CPN) has been issued, the request must be on or before the CPN response is due (30 days from the date of the CPN).

In order to elect this option, documentation must be completed by the beneficiary or his representative, and mailed to the MSPRC.  Requests are processed in the order received.  So, it is imperative that when selecting this alternative the request is submitted timely.

If the request is denied, a formal letter will be provided with an explanation, and a regular Demand will be sent under separate cover.  If approved, the beneficiary will receive a bill for the amount specified (i.e. 25% of the settlement).

Wait & See

As indicated in our previous Industry News Bulletin of October 26th, the new procedure is a seemingly good way to speed up the process on ‘smaller’ Liability settlements.  However just how many claims will meet this criteria is yet to be determined.


About the Author: Christie Britt is the Vice President of Operations overseeing the extensive operations of Gould & Lamb.   She has vast knowledge of Medicare Set Asides and Post-Settlement Administration from an insurance claims perspective. Christie is MSCC certified and has her Green Belt Certification in Six Sigma.  She is also a member of the National Association of Medicare Set Aside Professionals (NAMSAP) and the Workers’ Compensation Claims Professionals (WCCP).

Gould & Lamb is a global leader of MSA/MSP Compliance Services in the country, serving domestic and international insurance companies, third-party administrators and self-insured entities.