On May 19, a robust mix of plaintiff attorneys, defense counsel, insurance claims professionals and MSP compliance experts convened in New Orleans for HB’s Medicare, Medicaid & SCHIP in Torts conference chaired by Steve Mullins, plaintiff attorney and member of Luckey & Mullins in Alabama, and John O’Meara, defense attorney and managing partner of Bremer, Whyte, Brown & O’Meara in Los Angeles.  Topics such as the historical relevance of the MSP program, concerns about information exchange, the role of the insurer and case management were laid open and examined.

While MSP obligations have been on the books since 1980, the mandatory reporting prong is new.  It is through this mechanism, that noncompliance triggers fines and penalties.  Failing to actually pay the Centers for Medicare & Medicaid Services warrants the imposition of a potential recovery lawsuit and double damages.  There are approximately 44 million Americans who are Medicare beneficiaries, which is 14 percent of the population.  This number is expected to increase.  

Among some of the bigger take-away points was the prediction of another postponement of the mandatory reporting commencement date.  The discussions touched on all aspects of MSP compliance and reporting, providing a plethora of practical guidance.  But, there seem to be as many questions as there are answers.  Many questions pertain to specific scenarios requiring customized answers.  The expert panel warned attendees to seek guidance only from MSP experts and check credentials of MSP compliance firms.

In terms of handling MSP issues in cases, the consensus overall was to start early with each part of the process.  It can be difficult to obtain information necessary for querying and settlement negotiations, but starting early will head off any unnecessary delays.  Case management orders are increasingly being used to obtain claimant identification information; however, it was noted that many CMOs are flawed or incomplete. 

A major point to keep in mind is that CMS will not issue a final demand without a settlement amount.  Operating on the notion that finalizing settlement can be put off until CMS provides a final demand will leave parties in a quandary.  Defense counsel should act as the information gathering arm of the RRE and educate the Court when necessary, O’Meara said.  Get verified discovery responses when possible and make sure that the RRE is aware of key dates such as discovery cutoff dates and trial dates, he said.  Starting on settlement language early is highly recommended.

All in all, plaintiffs are wary of turning over sensitive information and their concerns can stymie the process, but cooperation between plaintiffs and defendants will be essential to properly handle MSP matters in a cases involving injury.  It may be up to defense counsel, possibly joined by plaintiff counsel, to educate the court, obtain as much information as possible about the injury and ensure that the RRE has the same information as plaintiff counsel.

More guidance from HB’s Medicare, Medicaid & SCHIP in Torts seminar is featured in the most recent edition of HB’s Medicare Secondary Payer newsletter.   Click to subscribe or email us for one free issue at info@litigationconferences.com.