Mass Tort Lien Resolution

How can we get Providio involved?

For mass torts, we will arrange a call or meeting to discuss your specific matter, inventory specifics and lien resolution requirements of the Master Settlement Agreement, if one has been reached. However, you are encouraged to get us involved as early as possible so we can advise you on what to anticipate from a lien resolution standpoint and provide input with the MSA lien resolution language. We will also work with the defense on language drafting.

Do private healthcare liens have to be paid back?

It can depend on the state in which the claimant was injured, lives, or had medical treatment. The terms of the private health plan, whether fully insured or a self-funded ERISA plan, also must be considered. There are several states that have laws preventing or limiting private healthcare plans from seeking reimbursement. The states with anti-subrogation laws are:

  • Arizona
  • Connecticut
  • Kansas
  • Missouri
  • New Jersey
  • New York
  • North Carolina
  • Pennsylvania
  • Virginia

Even in anti-subro states, there may still be a right to reimbursement requirement under federal law or other carve outs. That's why it's important to contact us so our lien specialists (attorneys and paralegals) can review each situation or mass tort settlement on a case-by-case basis.

What is group modeling?

Group modeling, also known as global modeling, is an alternative way to resolve liens with Medicare. Instead of working with the MSPRC one by one on each claimant in a mass tort, we propose a sophisticated injury-specific medical treatment model, including Medicare payment rates, that gets applied to all Medicare entitled claimants. This approach enables law firms and Medicare alike to move hundreds and often thousands of claimants through the system in an efficient manner so that the Medicare lien obligation is satisfied.

What lien holders have to be contacted in a mass tort settlement?

There are four distinct entities, with a few subsets, that can assert a lien: Medicare, Medicaid, Medicare Part C, also known as Medicare Advantage, and Private Insurance, including fully insured plans and self-funded ERSISA plans. Depending on the lien resolution terms of the master settlement agreement, affirmative obligations vary. But at minimum, Medicare and the Medicaid agencies of every state must be contacted to see what claimants are eligible (and thus have an obligation) under those government programs. Lien obligations with Medicare Part C and Private Entities vary. We encourage you to contact a Providio representative to discuss further.

What does offset and holdback mean?

Typically in Medicaid and Private mass tort lien resolution, lien resolution terms are negotiated whereby a claimant's lien obligation is first reduced by an "offset" for attorneys fees and costs and then capped at a maximum "holdback" which is a percentage of gross settlement.

Single Event Lien Resolution

What makes Providio so much better at resolving liens than my staff or me doing them?

First, we are full-time lien resolution professionals and our team of attorneys and paralegals negotiates and resolve liens all-day, every day. That means we are intimately familiar with the most efficient and effective processes and techniques for resolving liens in both single event cases and mass torts. We also closely follow lien-related laws and cases so we are executing obligations within the most current legal framework for resolving liens.

Second, we have built a technical infrastructure that allows us to track and manage our clients' inventory of liens very efficiently. By working with Providio, you get the benefit of substantive legal expertise as well as our process and administrative efficiencies.

Third, our senior lien attorneys spent several decades working on the subrogation side for private health plans, so they are very familiar with the most effective tactics for resolving private and ERISA health plan liens.

Most importantly, we get results. We regularly resolve liens faster and also generate bigger reductions than when PI attorneys and their staff handle them.

Think of us like your CPA. As a well-educated individual, you're completely capable of handling all of your individual and law firm tax issues. But you probably engage the services of a CPA because doing your own taxes is time intensive, distracts you from higher-value activities, and is a tedious and technical process that you don't do on a regular basis. Plus, your CPA knows all of the most effective ways to minimize your tax obligations because that's what he/she does on a regular basis. Or look at tax lawyers versus litigators. There's a benefit to engaging legal specialists in a certain area even though, technically, a lawyer could learn and do other areas of the law on their own.

How can we get Providio involved?

Give us a call. For single event cases, most of our law firm clients end up doing a "full implementation" once they feel comfortable with us - whereby they turn over all of their files to us and use us on all new files going forward. If you don't want to do a full implementation but are interested in trying us or for all new work going forward, that is fine as well. Either way, we will do a quick training with your attorneys and paralegals on our simple referral process.

Do I have to pay for Providio's services out of my attorney fees?

That's up to you. Most states' ethical guidelines and/or the Model Rules of Professional Conduct allow you to pass on the cost of outsourced lien resolution services as a reimbursable case expense as long as you disclose it to your clients.

I want to have the option of charging my clients for Providio's services as a reimbursable case expense. How do I disclose that to them?

Providio will review your Client Fee Agreement/Engagement Contract and suggest specific wording that conforms to the ethical guidelines in your state, ABA Model Rules, and the overall terms of your client engagement.

What is the difference between Medicare and Medicare Part C, also known as Medicare Advantage?

Medicare has parts A & B which provide standard health insurance coverage for physicians, hospital procedures and stays, etc. Part D is for pharmaceuticals. Parts A, B & D are administered by the government/Medicare at the federal level. Part C is Medicare Advantage. Medicare Advantage is a private/government combination where the beneficiary pays a higher premium to receive enhanced benefits. Medicare Advantage is administered by private health plan organizations called "health management organizations" (e.g., Aetna, United Healthcare) and the private health plan receives partial funding (via reimbursements) from the federal government/Medicare. All regular Medicare liens (i.e. Parts A&B) are mandatorily reimbursable under the Medicare Secondary Payer act. There is a growing question as to whether Medicare Advantage plans are to be defined as "Medicare" in terms of reimbursement entitlement under the MSP. Currently, Medicare Advantage plans are treated as "Medicare" under the MSP n the Third Circuit (PA, NJ and DE), AZ, AR and the Southern District of NY. However, there are similar cases pending in a number of other state and federal jurisdictions.

Medicare Set-Asides

In a liability case, how do I know whether I should do an MSA, an informal set-aside, or take a different step to consider Medicare's interests in a liability settlement?

Because of the lack of guidance from CMS, it's best to utilize Providio's expertise, via a free case consultation, to guide you on the most appropriate course of action for each case. We will consider the specific facts of the case, the most up to date law and administrative guidance, and your/your client's risk tolerance when making our recommendations.

Should we submit a liability MSA to Medicare for approval?

We don't recommend it. CMS Region 6 Coordinator Sally Stalcup said in 2011 that, "There is no formal CMS review process in the Liability arena as there is for Workers' Compensation. However CMS does expect the funds to be exhausted on otherwise Medicare-covered and otherwise reimbursable services related to what was claimed and/or released before Medicare is ever billed. CMS review is decided on a case by case basis." To date only CMS Region 2 (NY, NJ, Puerto Rico & the US Virgin Islands) has explicitly said they'll accept LMSA submissions for review but they caution that they're under no obligation to review things submitted and will only do so as/when they feel they have resources.

Should the settlement agreement specify that an MSA is needed?

The terms of the settlement are for negotiation between you and the defense. Most of the settlement agreements we're seeing that involve someone who is Medicare eligible or who will become eligible within 30 months of the settlement date do contain wording regarding the reasonable protection of Medicare's interests. Sometimes they specify the amount of the settlement that is allocated to future medicals otherwise covered by Medicare, sometimes they specify an MSA be performed, others are more broadly worded. We highly recommend you do not sign a release where settlement is contingent upon CMS approval of an MSA.

QSF Administration

Where are the funds deposited?

Providio works with a number of banks (national and regional) who are experienced in working with QSF deposits. We are happy to recommend a bank or work with the bank of your choice.

Does Providio do the annual accounting and tax returns for the QSF?

Yes, this is a standard part of our QSF administration services.

Can Providio provide reporting under one QSF for multiple firms with different inventories of claimants in the same settlement project?

Absolutely. Providio's accounting is sophisticated and details all funds in the matter by firm and by each claimant within the firm. Providio can facilitate sub-accounts within the greater QSF for a matter and detailed reporting within those sub-accounts as well. This is all part of Providio's standard QSF administration services.

MSP Compliance

Can we avoid the obligation to take Medicare's interests into account by allocating 100% of the settlement to non-economic damages like pain and suffering?

We wouldn't recommend that. Medicare can say it isn't bound by those allocations and that you acted unreasonably in an attempt to shift the burden to Medicare in contravention of the Medicare Secondary Payer Act. Is it really worth the risk?

Why should we do MSAs or even informal set asides if there's no requirement to do so?

The world of MSP compliance in liability cases is murky so often the answer to this question becomes one of risk management. The MSP Act only requires that Medicare be secondary where there's a primary payer – i.e., don't shift the burden to Medicare. Unfortunately there's no clear guidance on what that means. However, we believe that when an area of the law is gray it is prudent to self-impose a reasonable prudent person standard which, in the case of the MSP would mean: (1) investigate whether the case has the features that would trigger the MSP; (2) consult an expert in the field for guidance; and (3) act upon the recommendation or, if not, document why you elected the course of action you chose with an explanation of why/how that translates into reasonably protecting Medicare's interest.

What do I need in order to obtain a free case consultation from Providio?

Simply fill out a request for a consultation. When you do so, be prepared to discuss the following information: (1) claimant's age; (2) claimant's health condition prior to the injury; (3) details of the injury and current status of claimant's health; (4) is the claimant on or applying for disability; (5) estimated settlement value and current status of the case; (6) which health insurance plans has claimant been eligible to receive benefits under from the date of injury until now; (7) are there any requirements/demands from the defense for MSP compliance (including any proposed settlement language); and (8) your/your client's risk tolerance in the context of this case.