From Jack’s Desk #36: Jack Gets Scorched
For Fanning Flames of Fear RE Medicare
“Jack, Please, stop unfairly fanning the flames of fear…”
Last week, Jack Meligan released a video about Medicare entitled “Are You Violating Medicare’s Rules of the Road?” One of the comments Jack received to this video began with that very phase above. (See below to view the entirety of this comment)
Here is Jack’s response —
The Entire Comment Jack Received:
“Jack, Please, stop unfairly fanning the flames of fear to hype your services ! This is NOT an example of needing an LMSA; it is purely an example of the plaintiff’s attorney’s failure to abide by the strict rules requiring a final demand letter at the time of settlement and repaying to Medicare the reduced conditional payments; it is that simple; this lawyer messed up; if they had handled this correctly, no LMSA is required, and your “violating medicare’s rules of the road” would be meaningless, sorry, that’s the truth”
The Written Response Jack Provided:
“I am not trying to, as you say, unfairly (or otherwise) fan the flames of fear to hype our services. If that is your impression then I need to do a better job of explaining myself in these videos. Bear with me, I will improve.
I have reported previously on two DOJ settlements with Trial Lawyers who ignored Medicare Conditional Payment issues in their cases and suffered consequences. I have also reported on 5 Trial Lawyers that have been sued by Medicare Advantage Plans/Organizations for failing to resolve those liens. At least one of those cases resulted in the payment of double damages. In my opinion, none of this is fanning the flames of fear. None of this is hype. I am just reporting the facts. If fear is the reaction, is that me as an outside agency? Or is that a viewer’s inner voice warning that the facts present potential dangers that need to be avoided?
In this video I am reporting on a Medicare Conditional Payment Notice that was addressed to and received by a Medicare beneficiary. It was evidently not sent to the beneficiary’s attorney as there is not a cc to an attorney. Nor has Medicare/CMS received a settlement statement on this beneficiary’s settlement. Based upon the information that is missing on page 2 of this CPN, the RRE has evidently reported the settlement as required by law, but the beneficiary’s attorney (if they had one) has not contacted Medicare regarding resolving these conditional payments. My point in this video is that this letter is evidence that Medicare/CMS can and will seek repayment for services that occurred post-settlement. In essence, that the post-settlement payments are also conditional payments, just like pre-settlement payments for services. Top Medicare Lawyers have stated publicly and privately that this is confirmation that Medicare is moving to a whole other level in this regard. I agree and decided to create a video about it.
The other point of my creating this video is to get the word out so that Trial Lawyers can consider this evidence and its implications, and then decide for themselves what actions to take. Ignoring these issues is not the prudent course for most Trial Lawyers. Yet, judging by the DOJ’s recent actions and the other court and bar proceedings that I have discovered and reported on, that seems to be the strategy that many other lawyers have chosen. I am hoping to change that.
The facts tell us that ignoring Medicare’s rules can lead to consequences, some of which are severe. Addressing Medicare issues early and head-on can lead to the same result those “other” lawyers initially hoped for. Namely, little or none of the plaintiff’s net settlement being impacted. The former can spawn feelings of dread and fear. The latter provides safety, certainty and finality.
Nowhere in this video, or any other that I have previously recorded, do I present this CPN letter (or any other previous circumstance, for that matter) as an example of someone needing an LMSA. I don’t do that. If there was an attorney involved in this case (and I suspect there was) then I am in complete agreement with you. The lawyer messed up and this situation could have probably been avoided if they had handled this correctly. But I certainly did not “hype” my firm providing an LMSA as the solution, because that is not the solution. What I hyped at the end of the video is that we provide Medicare Conditional Payment resolution services, along with resolution services for all types of liens. Our MCP lien res service is what I am hyping as a possible solution for those Trial Lawyers that want to avoid the “Muddled Maze of Medicare” and want to have this done for them, removing the worry about whether they or their staff have handled it correctly or, alternatively, the worry that they have just created more liability for the firm.
As for LMSAs, I and my firm preach avoidance. It is our religion. We offer free initial phone consults that start with a review of my “3 Ways to Avoid an MSA.” As far as we can tell, we are the ONLY firm in the country that starts the conversation with a discussion of whether a particular plaintiff can qualify to use one of my proprietary “3 Ways”. And our record speaks for itself. Our case logs and records show that we are successful in helping over 67% of the cases we consult on, avoid an LMSA. And we do that without jeopardizing the plaintiff’s future Medicare benefits or exposing the Trial Lawyer to a potential long-tail liability. We provide to plaintiffs the advice that we would want if the tables were turned.
We believe that the best Plaintiff’s MSA is a “NO” or “ZERO” MSA. Failing that, the next best Plaintiff’s MSA is a “LOW” MSA. The lower, the better. We guarantee that our recommended Allocation amounts are the lowest, rock-bottom amount that is both reasonable and defensible. Many of our competitors believe and promote just the opposite position. Their business model evidently requires it.
LMSAs are not required by law. They are voluntarily created by plaintiffs that 1.) cannot qualify to avoid Medicare potentially sending them Denial of Payment notices for services related to their injuries that were released in their settlement; 2.) whose settlements contain compensation for future medicals; and 3.) want the safety and security that they will have money to pay future Medicare–allowable bills related to their case settlement. Plaintiffs that cannot avoid the possibility of Medicare denials may hire us to create an MSA Allocation report that identifies our medical team’s opinion of the size and extent of their total liability for future Medicare “settlement-related” services for their lifetime. Some then want to create a segregated account or arrangement from which can be paid the future bills for Medicare allowable services that are directly related to the injuries/conditions that are or were the subject of their settlement. If they decide to pass on Self-Administration, many hire us to professionally administer their account. These are services we provide for a fee, along with our lien resolution services.
Most of our income is from the advice and services we provide on the front-end of an engagement. A good portion comes from our lien res services. The smallest piece comes from creating and administering LMSA accounts. I structured our firm so that we can be a viable business without having to resort to pushing plaintiffs into unnecessary and/or over-funded LMSAs. And so far, so good. We are thriving.
Medicare’s “Rules of the Road” since 1980 state that Medicare is secondary to all forms of insurance, and that Medicare is precluded from paying for services once they discover a plaintiff’s settlement. Trial Lawyers that fail to resolve a client’s conditional payment issues are clearly in violation of Medicare’s rules, and this Conditional Payment Notice is concrete evidence that Medicare/CMS has stepped up their enforcement and recovery efforts of both pre and post-settlement conditional payments. It will certainly be interesting to watch for further developments…”
If you want more information about how THE PLAINTIFF’S MSA & LIEN SOLUTION can help you CONQUER your Medicare and lien problems and possibly make them DISAPPEAR or get significantly reduced go to our PMLS website at www.plaintiffsmsa.com, or call me at 888-MSA-PLTF (888-672-7583). Or check our other “Attorneys Sued Over Medicare Issues” resource here: www.AttorneysSuedOverMedicareIssues.com.