Showing posts sorted by date for query set-aside. Sort by relevance Show all posts
Showing posts sorted by date for query set-aside. Sort by relevance Show all posts
Friday, September 27, 2024
Chevron's Fall: Medicare Set-Asides Face Legal Shake-Up
The recent U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo (2024), which overturned the Chevron doctrine established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., is likely to have significant impacts on how the Centers for Medicare & Medicaid Services (CMS) operates regarding the Medicare Secondary Payer (MSP) Act, including conditional payments and Medicare Set-Aside (MSA) agreements.
Friday, September 29, 2023
Impacts of a Governmental Shutdown
The effects of a government shutdown on state workers' compensation systems and their integration with Social Security will vary depending on the specific circumstances of each state. However, some general trends can be expected.
Wednesday, August 3, 2022
Misclassification: 16 Workers Held to be Employees
An employer need not control every facet of a person's responsibilities for that person to be deemed an employee.
Friday, July 16, 2021
“Forever Chemical” Delaware Settlement $50 Million
It has been reported that DuPont and two other spinoff companies will pay the state of Delaware $50 Million to clean up the residuals of polyfluoroalkyl substances [PFAS] pollution.
Saturday, February 10, 2018
Just Published: 2018 Update - Gelman on Workers' Compensation Law
Jon Gelman’s newly revised and updated 2018 treatise on Workers’ Compensation Law is now available from by West Group of Egan, MN within the next few weeks. The treatise is the most complete work available on NJ Workers’ Compensation law and integrated with WESTLAW™, the "most preferred online legal research service.'"
Sunday, February 5, 2017
Judge Accepts Medicare’s Plan To Remedy Misunderstanding On Therapy Coverage
Today's post is shared from Kaiser Health News khn.org
"A federal judge has accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries’ are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving.
"'Confusion over the Improvement Standard persists,' wrote U.S. District Court Chief Judge Christina Reiss in Vermont in a decision released by the court Thursday. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches “a plateau” and is no longer making progress.
"A federal judge has accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries’ are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving.
"'Confusion over the Improvement Standard persists,' wrote U.S. District Court Chief Judge Christina Reiss in Vermont in a decision released by the court Thursday. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches “a plateau” and is no longer making progress.
Friday, December 2, 2016
Insurance Rating Company Increases Estimate for Net Ultimate U.S. Asbestos Losses to $100 Billion
A.M. Best has increased its estimate for losses that U.S. property/casualty insurers can ultimately expect from third-party liability asbestos claims by approximately 18% to $100 billion. The $15 billion increase to the net ultimate asbestos loss estimate comes as insurers are incurring approximately $2.1 billion in new losses each year while paying out nearly $2.5 billion on existing claims. The updated figures are contained in a new Best’s Special Report, titled “A.M. Best Increases Estimate for Net Ultimate Asbestos Losses to $100 Billion.” The report also states that A.M. Best is not making any change to its $42 billion estimate on net ultimate environmental losses; therefore, A.M. Best’s view of ultimate industry losses for asbestos and environmental (A&E) is now $142 billion.
Friday, September 30, 2016
CMS 2016 Recovery Thresholds for Workers’ Compensation Settlements, Judgments, Awards or Other Payments
2016 Recovery Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers’
Compensation Settlements, Judgments, Awards or Other Payments
As required by section 1862(b) of the Social Security Act, the Centers for Medicare and
Medicaid Services (CMS) has reviewed the costs related to collecting Medicare’s conditional
payments and compared this to recovery amounts.
Tuesday, May 17, 2016
CMS Publishes Final Rule for MSP Conditional Payments Via Web Portal
This final rule, effective June 16, 2016, specifies the process and timeline for expanding CMS' existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).
Monday, May 9, 2016
Announcing the WorkersCompensation.com Best Blog Designees for 2016
WorkersCompensation.com, "the original and largest regulatory and compliance information center available for the workers' compensation industry," has announced the best blog designations for 2016:
"The blogs below were all nominated by citizens of the workers' compensation community. They were judged on several criteria. In addition to objective categories such as age of blog, frequency of posting and website traffic**, they were also assessed by an independent judging panel for content quality, value and timeliness. Designated blog category was determined by people nominating the blog. In the event of multiple nominations, the category selected by the majority of nominators was used.
Thursday, April 21, 2016
Florida Appeallate Court Rules Attorney Fee Statute Unconstitutional
The Florida First District Court of Appeals has held counsel fee provisions in the Workers' Compensation Act to be unconstitutional, ,"We hold that the challenged provisions violate Claimant’s First Amendment
guarantees of free speech, freedom of association, and right to petition for redress." Miles v City of Edgewater, Decided April 20, 2016, setting the stage for review by the Florida Supreme Court.
Today's guest post is authored by the Hon. David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings and is shared from http://flojcc.blogspot.com.
Today's guest post is authored by the Hon. David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings and is shared from http://flojcc.blogspot.com.
Friday, April 1, 2016
NJ Supreme Court to Review An Increase of Partial Disability Award in Total Disability Claim
One of the basic tenants of workers' compensation is that awards maybe reviewed and modified where the medical status has changed.1 The NJ Supreme Court on March 14, 2016 granted Certification to review a favorable Appellate Court ruling that permitted a totally and permanently disabled injured worker to receive an increase of a prior (2006 injury) partial disability award, even though the worker had been declared to be totally and permanently disability from a subsequent (2008 injury) injury.
Tuesday, September 30, 2014
Federal Appeals Court Rules State Apportionment Order Not A Bar to Medicare Recovery
A Medicare recipient brought an action against Medicare challenging a determination that she was required to reimburse The Centers for Medicare and Medicaid Services $10,121.51 for conditional medical payments alleging that such recovery was barred by a state court's apportionment order. \
The Court of Appeals, Hardiman, Circuit Judge, held that:
(1) recipient's liability settlement from third-party tortfeasor qualified as a “primary plan” within the meaning of the Medicare as a Secondary Payer Act;
(2) recipient's $90,000 settlement with tortfeasor included her medical expenses, and thus recipient had obligation to reimburse Medicare for $10,121.15 in medical
(3) the New Jersey Collateral Source Statute (NJCSS) did not prevent Medicare from recovering medical expenses as part of her damages in tort suit;
(4) state court's order apportioning settlement proceeds did not bar government from seeking reimbursement for medical expenses;
(5) District Court lacked jurisdiction to adjudicate recipient's unexhausted claim pursuant to “equity and good conscience” exception under Act; and
(6) District Court lacked federal question jurisdiction over due process claim.
"As the ALJ correctly found, the Superior Court's apportionment order was not “on the merits,” and need not be recognized by the agency. A court order is “on the merits” when it is “delivered after the court has heard and evaluated the evidence and the parties' substantive arguments.” Black's Law Dictionary 1199 (9th ed.2009); cf. Greene v. Palakovich, 606 F.3d 85, 98 (3d Cir.2010) (finding, in a criminal case, that “on the merits” means the state court “acted on the substance of [the] claim”), aff'd sub nom. Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011); Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009) (holding that state proceedings occur “on the merits” “when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance”). Here, the state court did not adjudicate any substantive issue in the primary negligence suit. Indeed, in her motion for the order, Taransky clarified that she sought an apportionment not to resolve any outstanding issue in her suit, but “only to the extent necessary to obtain specified documentation relevant to anticipated administrative proceedings with the federal Centers for Medicare and Medicaid Services.” JA at 267. The state court, in effect, rubber stamped her request. Taransky's motion was uncontested, issued pursuant to a stipulation between Taransky and Larchmont, and prepared and submitted by Taransky's counsel for the judge's signature. This order is the antithesis of one made on the merits."
The Court of Appeals, Hardiman, Circuit Judge, held that:
(1) recipient's liability settlement from third-party tortfeasor qualified as a “primary plan” within the meaning of the Medicare as a Secondary Payer Act;
(2) recipient's $90,000 settlement with tortfeasor included her medical expenses, and thus recipient had obligation to reimburse Medicare for $10,121.15 in medical
(3) the New Jersey Collateral Source Statute (NJCSS) did not prevent Medicare from recovering medical expenses as part of her damages in tort suit;
(4) state court's order apportioning settlement proceeds did not bar government from seeking reimbursement for medical expenses;
(5) District Court lacked jurisdiction to adjudicate recipient's unexhausted claim pursuant to “equity and good conscience” exception under Act; and
(6) District Court lacked federal question jurisdiction over due process claim.
"As the ALJ correctly found, the Superior Court's apportionment order was not “on the merits,” and need not be recognized by the agency. A court order is “on the merits” when it is “delivered after the court has heard and evaluated the evidence and the parties' substantive arguments.” Black's Law Dictionary 1199 (9th ed.2009); cf. Greene v. Palakovich, 606 F.3d 85, 98 (3d Cir.2010) (finding, in a criminal case, that “on the merits” means the state court “acted on the substance of [the] claim”), aff'd sub nom. Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011); Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009) (holding that state proceedings occur “on the merits” “when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance”). Here, the state court did not adjudicate any substantive issue in the primary negligence suit. Indeed, in her motion for the order, Taransky clarified that she sought an apportionment not to resolve any outstanding issue in her suit, but “only to the extent necessary to obtain specified documentation relevant to anticipated administrative proceedings with the federal Centers for Medicare and Medicaid Services.” JA at 267. The state court, in effect, rubber stamped her request. Taransky's motion was uncontested, issued pursuant to a stipulation between Taransky and Larchmont, and prepared and submitted by Taransky's counsel for the judge's signature. This order is the antithesis of one made on the merits."
Taransky v Sec of US Dept of HHA, 760 F.3d 307 (3rd Cirt 2014)
Related articles
- Liability Claim Collateral SOurce Payments Subject to MSP (workers-compensation.blogspot.com)
- Settling a Workers' Compensation Claim - Future Medicals and Medicare(workers-compensation.blogspot.com)
- Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct (workers-compensation.blogspot.com)
- Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim (workers-compensation.blogspot.com)
- NJ Court Approves Medicare Set-Aside Agreement Lacking CMS Review(workers-compensation.blogspot.com)
- US Supreme Court Denies CMS-MSP Case - Hadden (workers-compensation.blogspot.com)
- Medicare Takes Bigger Bite Out California Workers Compensation (workers-compensation.blogspot.com)
Monday, September 29, 2014
Study: Cancer costs 'skyrocketed' despite drug cuts
| Today's post is shared from thehill.com The cost of treating cancer has "skyrocketed" despite a 2003 law that sought to control Medicare drug costs, including the cost of chemotherapy, according to a new study. Research published Monday in the Journal of Clinical Oncology found that oncologists did not stop prescribing expensive cancer drugs even after Medicare cut the drugs' reimbursements in 2005. In fact, the aggregate cost of cancer care rose by as much as 60 percent between the passage of the law in 2003 and 2013, the study noted. "Economists expected a sharp decline in use of the most expensive drugs targeted by the [2003] law, because reimbursement to oncologists for these drugs was reduced, but that did not happen," said Mark C. Hornbrook of Kaiser Permanente Northwest, the study’s lead author. Cutting drug reimbursements is one way federal health officials seek to influence doctors' prescribing habits. Profit on Medicare reimbursements for chemotherapy drugs is one way cancer clinics generate profit, making the payments ripe for scrutiny by Medicare. The study looked at 5,831 chemotherapy regimens for 3,613 patients and found the the law lowered prescriptions for affected cancer drugs "slightly" in fee-for-service cancer clinics. The 2003 law — the Medicare Prescription Drug, Improvement and Modernization Act — is best known for creating Medicare Part D. |
Tuesday, September 23, 2014
Upcoming Enhancement to the Workers’ Compensation Medicare Set Aside Portal (WCMSAP)
Today's post is shared from cms.gov
As of October 6, 2014, portal users will be able to enter
information on the new Prescription Drugs page for any
new and Work In Progress case before it is submitted
through the WCMSAP.
• Entry of the prescription drug information will be required,
when applicable, prior to submission of a case using the
portal.
• As is the current procedure, prescription drugs will be
verified and priced using the monthly Redbook Drug
Reference that is in effect at the date of submission.
• The new and revised WCMSAP pages that support entry of
prescription drug information are as follows:
As of October 6, 2014, portal users will be able to enter
information on the new Prescription Drugs page for any
new and Work In Progress case before it is submitted
through the WCMSAP.• Entry of the prescription drug information will be required,
when applicable, prior to submission of a case using the
portal.
• As is the current procedure, prescription drugs will be
verified and priced using the monthly Redbook Drug
Reference that is in effect at the date of submission.
• The new and revised WCMSAP pages that support entry of
prescription drug information are as follows:
- The Prescription Drugs page displays after a user clicks [Next] on the Diagnosis Codes page.
- • This page requires users to indicate if a claimant is currently taking or is expected to take prescription drugs as a result of the workers’ compensation injury.
- • If prescription drugs are anticipated, the user will click the [Drug Lookup] button to locate and select the applicable drug(s).
Wednesday, September 10, 2014
G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis
| DETROIT — After General Motors emerged from bankruptcy and a government bailout five years ago, the board of directors of the “new G.M.” was expected to keep a more watchful eye on a company that had gone seriously off track. But on the issue of vehicle safety, the board until recently took a mostly hands-off approach, rarely even discussing the topic beyond periodic reviews of product quality with company executives, according to interviews with current and former board members, as well as G.M. officials with knowledge of the board’s actions. In February, the initial recall of hundreds of thousands of cars with defective ignition switches was treated in such a routine manner at the board’s monthly meeting that the board’s chairman, Theodore M. Solso, said he had only a vague recollection of the details. “I can’t remember the specifics,” Mr. Solso said in an interview. “It was a large recall. There were probably cost estimates.” Since February, G.M. has been rocked by additional recalls totaling nearly 30 million vehicles, as well as by disclosures that some company officials had known about the defective switches for more than a decade. At least 13 deaths have been linked to the defect; the automaker is the subject of multiple investigations and has set aside nearly $4 billion to cover its costs. Although Mr. Solso said the directors were never as passive as others suggest, he acknowledged that since the first... |
Friday, September 5, 2014
BP May Be Fined Up to $18 Billion for Spill in Gulf
Judicial review and enforcement of the Clean Water Act has resulted in major fines against BP flowing from the Gulf Oil Spill. Today's post is shared from nytimes.com
In the four years since the blowout on the Deepwater Horizon oil rig killed 11 workers and sent millions of barrels of oil gushing into the Gulf of Mexico, BP has spent more than $28 billion on damage claims and cleanup costs, pleaded guilty to criminal charges and emerged a shrunken giant.
But through it all, the company has maintained that it was not chiefly responsible for the accident, and that its contractors in the operation, Halliburton and Transocean, should shoulder as much, if not more, of the blame.
On Thursday, a federal judge here for the first time bluntly rejected those arguments, finding that BP was indeed the primary culprit and that only it had acted with “conscious disregard of known risks.” He added that BP’s “conduct was reckless.”
By finding that BP was, in legal parlance, grossly negligent in the disaster, and not merely negligent, United States District Court Judge Carl J. Barbier opened the possibility of $18 billion in new civil penalties for BP, nearly quadruple the maximum Clean Water Act penalty for simple negligence and far more than the $3.5 billion the company has set aside.The ruling stands as a milestone in environmental law given that this was the biggest offshore oil spill in American history, legal experts said, and serves as a warning for the oil companies that continue to drill in the deep waters of the Gulf of Mexico, where high pressures and temperatures in the wells test the most...
[Click here to see the rest of this post]
In the four years since the blowout on the Deepwater Horizon oil rig killed 11 workers and sent millions of barrels of oil gushing into the Gulf of Mexico, BP has spent more than $28 billion on damage claims and cleanup costs, pleaded guilty to criminal charges and emerged a shrunken giant.
But through it all, the company has maintained that it was not chiefly responsible for the accident, and that its contractors in the operation, Halliburton and Transocean, should shoulder as much, if not more, of the blame.
On Thursday, a federal judge here for the first time bluntly rejected those arguments, finding that BP was indeed the primary culprit and that only it had acted with “conscious disregard of known risks.” He added that BP’s “conduct was reckless.”
By finding that BP was, in legal parlance, grossly negligent in the disaster, and not merely negligent, United States District Court Judge Carl J. Barbier opened the possibility of $18 billion in new civil penalties for BP, nearly quadruple the maximum Clean Water Act penalty for simple negligence and far more than the $3.5 billion the company has set aside.The ruling stands as a milestone in environmental law given that this was the biggest offshore oil spill in American history, legal experts said, and serves as a warning for the oil companies that continue to drill in the deep waters of the Gulf of Mexico, where high pressures and temperatures in the wells test the most...
[Click here to see the rest of this post]
Thursday, September 4, 2014
J&J’s Pinnacle Hips Face First Trial on Poisoned Patients
Johnson & Johnson (JNJ), which set aside $2.5 billion last year to resolve claims that 8,000 of its artificial hips were defective, faces a new round of lawsuits over another line of hip implants blamed for poisoning patients.
J&J’s DePuy unit is starting its first trial of allegations that the metal-on-metal version of the Pinnacle hip was defectively designed and caused metal debris to leech into patients’ bloodstreams. The cobalt-and-chromium material caused an infection that forced Kathleen Herlihy-Paoli to have her artificial hips surgically removed, she said in court filings.
Jury selection began today in Herlihy-Paoli’s suit, the first of more than 6,000 cases over the devices to be weighed by a jury. The cases have been consolidated before U.S. District Judge Ed Kinkeade in Dallas for pretrial information exchanges. Kinkeade will preside over Herlihy-Paoli’s trial.
“The first trials in any of these consolidated litigations set the tone for the following cases,” Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia, said in an interview. “If J&J loses the first couple of these Pinnacle trials, they better start seriously thinking about coming up with a settlement similar to what they signed off on for the ASR hips.”
Ultamet Line
J&J said studies have shown the Pinnacle Ultamet line of devices restores mobility and reduces pain for patients in need of hip replacement.
[Click here to see the rest of this post]
Wednesday, August 6, 2014
Third Circuit Court of Appeals Enforces Medicare Conditional Payment Collection
The Third Circuit Court of Appeals ruled that a Medicare recipient could not prevent CMS from recovering conditional payments from a liability settlement by holding that the NJ Collateral Source Statute (NJCSS) did not prevent Medicare from recovering medical expenses as part of her damages in a tort suit and that the state court's oder apportioning settlement proceeds did not bar the Federal government from seeking reimbursement for medical expenses.
Taransky v Sec of US HHS No. 13-3483, 214 WL 3719158 (Decided July 29, 2014)
Taransky v Sec of US HHS No. 13-3483, 214 WL 3719158 (Decided July 29, 2014)
Monday, August 4, 2014
CMS: "The Smarter Act" Introduced in the US Senate
From the folks that brought you The Smart Act comes the sequel, "The Smarter Act." Senator Bill Nelson (D-FL) on July 31, 2014 introduced, S.2731 - "A bill to amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers' compensation settlement agreements and qualified Medicare set-aside provisions."
As you recall, since the Medicare Secondary Payer (MSP) was enacted in November 1980 to stop workers' compensation insurance carriers from shifting costs onto US taxpayers, there has been a constant volley of activity between the Federal government, and those who want to maintain a status quo, ie. employers, insurance carriers and "other" financially interested participants.
Congress and Medicare (Centers for Medicare and Medicaid Services [CMS]), in an effort to shore up the financially ailing Medicare program has been dueling with an employer/insurance company led coalition. The coalition successfully lobbied for The Smart Act in May 2003. Mandated regulations were published and the stakeholders, including the coalition partners filed multiple comments objecting to the process.
Purportedly S.2731 requires CMS to establish criteria: for review, calculations, time periods, appeals process, delivery of reimbursement, and immunity form retroactive laws/regulations.
The latest round of coalition supported legislation is yet another attempt to curb the tidal wave that continues to erode the workers' compensation program as it historically existed since 1911 in the US.
The real challenge to workers' compensation and its potential extinction, is whether the visionaries can look forward instead of backward. The future will be solutions to Medicare's fiscal integrity, the integration of the Affordable Care Act, preventive health care, safer workplaces and globalization of the Social Security Disability Insurance (SSDI) system.
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