Settling Your Personal Injury Case and Sleeping at Night 2014

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1 Settling Your Personal Injury Case and Sleeping at Night 2014 Thursday, August 14, 2014 Bar Association of Erie County, 438 Main Street, 6 th Floor, Buffalo, NY :30 a.m. ~ Check-in/light breakfast * 9:00 2:00 ~ Seminar Lunch generously provided by Paramount Settlement Planning Presenters: Paul K. Isaac, Sr., Esq. Paramount Settlement Planning Paul R. Loudenslager, Esq. Paramount Settlement Planning As a trial attorney, you may have been confronted with these common scenarios: You ve been asked to mediate and you are unsure as to whether or not it will be a substantive mediation. You ask yourself, how can I take control and maximize my leverage in the mediation? The mediation or court settlement conference is successful and you're about to settle your client's personal injury case after years of hard work and fighting. Finally, litigation has been put to bed and the receipt of the proceeds from the settlement you fought so hard to obtain is now imminent. You begin preparing the final file accounting when you realize that, while you were preparing for trial, notification had been received from parties asserting liens or claims threatening to take much of the settlement pie. You awaken in a cold sweat in the middle of the night, wondering what other claims may be out there and whether the settlement proceeds may unintentionally disqualify your client from public benefits he or she so desperately needs. This seminar will provide an in depth, intense overview of a variety of concepts and issues impacting upon the settlement of a personal injury case, including a litigator s checklist of the pitfalls and landmines of mediation, liens, public benefits, private subrogation, and structured settlements. We pose the QUESTIONS: How do I maximize my mediation leverage? What claims are you ethically required to address? Are those claims valid? What are my ethical obligations to third parties purporting to have claims or be lien holders. May I hire someone to handle these issues? Is it ethical to expense the costs? What are the conflicts of interests arising out of the lien resolution process? If so, where do those conflicts lie? Can you accept the settlement and preserve some public benefits for your client? How can you safeguard your client s settlement funds from dissipation risks and reduce your potential exposure for failing to advise them of such an option? We also provide the ANSWERS! We will provide the most comprehensive update on the statutory and case law developments with regard to lien and subrogation claims, including, Medicare Conditional Payments; Medicare Set-Asides, Medicare Advantage Plans; Self- Funded ERISA Health Insurance Plans; and Medicaid. This seminar will provide guidance as well as a methodology for addressing the restrictions imposed by various state and federal public benefit laws and the ethical considerations in resolving these matters. We will x-ray the structured settlement process and steer you clear from any pitfalls. To see a detailed agenda, visit the CLE page at i

2 Erie Institute of Law Settling Your Personal Injury Case and Sleeping at Night 2014 Thursday, August 14, 2014 This CLE course may be used for New York MCLE credit by all attorneys, including those that are newly admitted (less than 24 months). This continuing legal education program has been approved in accordance with the requirements of the NYS CLE Board for a maximum of 5.5 credit hours in which 1.0 can be applied toward Ethics, 3.0 toward Areas of Professional Practice and 1.5 toward Skills. BAEC Members: $80 Non- Members: $110 Paralegals: $40 Name Firm Address City State Zip Phone Fax Enclosed is my check in the amount of $ Visa MC Card Number Exp. Date Cardholder Signature Cancellation Policy: If you are unable to attend a seminar for which you have already registered, call the CLE Department at For a full refund, notice of your cancellation must be received 24 hours in advance of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund. Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) , Fax (716)

3 SETTLING YOUR CASE AND SLEEPING AT NIGHT 2014 As a trial attorney, you may have been confronted with these common scenarios: You ve been asked to mediate and you are unsure as to whether or not it will be a substantive mediation. You ask yourself, how can I take control and maximize my leverage in the mediation? The mediation or court settlement conference is successful and you're about to settle your client's personal injury case after years of hard work and fighting. Finally, litigation has been put to bed and the receipt of the proceeds from the settlement you fought so hard to obtain is now imminent. You begin preparing the final file accounting when you realize that, while you were preparing for trial, notification had been received from parties asserting liens or claims threatening to take much of the settlement pie. You awaken in a cold sweat in the middle of the night, wondering what other claims may be out there and whether the settlement proceeds may unintentionally disqualify your client from public benefits he or she so desperately needs. This seminar will provide an in depth, intense overview of a variety of concepts and issues impacting upon the settlement of a personal injury case, including a litigator s checklist of the pitfalls and landmines of mediation, liens, public benefits, private subrogation, and structured settlements. We pose the QUESTIONS: How do I maximize my mediation leverage? What claims are you ethically required to address? Are those claims valid? What are my ethical obligations to third parties purporting to have claims or be lien holders. May I hire someone to handle these issues? Is it ethical to expense the costs? What are the conflicts of interests arising out of the lien resolution process? If so, where do those conflicts lie? Can you accept the settlement and preserve some public benefits for your client? 1

4 How can you safeguard your client s settlement funds from dissipation risks and reduce your potential exposure for failing to advise them of such an option? We also provide the ANSWERS! We will provide the most comprehensive update on the statutory and case law developments with regard to lien and subrogation claims, including, Medicare Conditional Payments; Medicare Set-Asides, Medicare Advantage Plans; Self- Funded ERISA Health Insurance Plans; and Medicaid. This seminar will provide guidance as well as a methodology for addressing the restrictions imposed by various state and federal public benefit laws and the ethical considerations in resolving these matters. We will x-ray the structured settlement process and steer you clear from any pitfalls. Course Outline: I. WELCOME AND PROGRAM OVERVIEW (9:00 9:05 a.m.) A. TECHNIQUES TO MAXIMIZE THE SETTLEMENT FOR YOUR CLIENT IN MEDIATIONS. B. CRUMBS LEFT AT THE TABLE: HOW VARIOUS LIENS AND SUBROGATION CLAIMS MAY EAT INTO THE PLAINTIFF S RECOVERY AND YOUR ATTORNEY FEES. C. KNOWING THE DIFFERENCE BETWEEN LIEN AND SUBROGATION RIGHTS. D. PLAINTIFF S ATTORNEY S ETHICAL OBLIGATIONS VIS-A-VIS LIENS. E. OBVIOUS, AND, NOT SO OBVIOUS, CONFLICT OF INTERESTS. F. ETHICS OPINIONS PERTAINING TO LIENS AND CLAIMS AGAINST SETTLEMENT PROCEEDS. II. MAXIMIZING SETTLEMENT VALUE WITHOUT GIVING AWAY THE PLAINTIFF S MONEY (9:05-9:35 a.m.) A. WHAT ARE MEDIATION SUPPORT SERVICES? B. TYPES OF SPECIFIC SERVICES AVAILABLE AND THE BENEFITS TO YOUR CLIENT 2

5 C. DON T GET LOCKED OUT OF THE BOX - WHO SHOULD BE THERE? D. THE TEAM APPROACH TO MEDIATION SUPPORT SERVICES; USING MEDIATION SUPPORT MODULES TO MAXIMIZE MEDIATION RESULTS THROUGH A HYPOTHETICAL DEMONSTRATION. III. MANAGING MEDICARE CONDITIONAL PAYMENTS ( MEDICARE LIENS ) (9:35 10:05 a.m.) A. AN OVERVIEW OF MEDICARE B. MEDICARE LIEN RESPONSIBILITIES- WHAT IS REAL, WHAT IS IMAGINED. C. THE SMART ACT: A PANACEA OR MORE OF THE SAME D. WHAT IS NEW WITH CONDITIONAL PAYMENTS E. HOW TO REPORT THE CLAIM, FOLLOW UP, & DETERMINE CONDITIONAL PAYMENT STATUS WITH CMS AND THE MSPRC. IV. THE ATTORNEY S ETHICAL OBLIGATIONS WITH REGARD TO THE MEDICARE CONDITIONAL PAYMENTS (AS WELL AS OTHER CLAIMS/LIENS) (10:05 10:55 a.m.) A. New York State Rules of Professional Conduct. i. Rule 1.1: Competence ii. Rule 1.7: Conflict Of Interest: Current Clients iii. Rule 1.8(e): Current Clients iv. Rule 8.4 (d): Misconduct B. The Danger of Proceeding where counsel is the only beneficiary of the settlement. C. Undo delay in Plaintiff s receipt of settlement funds due to attorneys delay in contacting and/or requesting an update from CMS. D. Discussion of Ethical Opinions E. Ethical Considerations in Personal Injury Settlements and Lien Resolution 3

6 V. MEDICARE SET-ASIDES (MSAS) WHAT IS REAL, WHAT IS IMAGINED, WHAT IS CONTRIVED (10:55 11:40 a.m.) A. APPLICABLE STATUTES AND REGULATIONS CLAIMED AS A BASIS FOR THE REQUIREMENT FOR AN MSA. B. MEDICARE SET-ASIDES IN THE WORKERS COMPENSATION ARENA: C. MEDICARE SET-ASIDES IN THE LIABILITY CASES 1. MSA CASELAW: 2. BE CAREFUL WHAT YOU CONSENT TO 3. PUBLISHED GUIDELINES: D. WHERE THE TWO WORLDS MEET. E. THE PROPOSED MSA REGULATIONS: THE PLAINTIFF S RESPONSIBILITY F. MSA ADMINISTRATION SELF VS. PROFESSIONAL ADMINISTRATION G. THE MSA DANGER ZONE- USE YOUR OWN WATCHDOG (MSA WATCHDOG) H. USE OF STRUCTURED SETTLEMENTS TO REDUCE PLAINTIFF S OUT OF POCKET COSTS TO FUND THE MSA ALLOCATION. VI. AVOIDING DELAY IN RECOVERY OF SETTLEMENT PROCEEDS GETTING PAID FASTER (11:40 12:10 p.m.) A. NEW YORK STATE CPLR SECTION 5003-A i. CPLR Section 5003-a Case law. THERE WILL BE A QUICK 15 MINUTE LUNCH BREAK FROM 12:10 P.M. 12:25 P.M. LUNCH GENEROUSLY PROVIDED BY PARAMOUNT SETTLEMENT PLANNING VII. ADRESSING THE DREADED MEDICARE RELEASE (12:25 12:35 p.m.) A. VARIOUS EXAMPLES OF SUCH MEDICARE RELEASES B. ADDRESSING THE TEN (10) PAGE MEDICARE RELEASE. 4

7 VIII. MEDICARE ADVANTAGE (MA) PLANS (12:35 12:45 p.m.) A. WHAT ARE MEDICARE ADVANTAGE PLANS B. DO THOSE PLANS ACTUALLY HAVE LIENS? C. THE ENABLING STATUTE: USC 1395w-22[a][4]). D. THE MEDICARE ADVANTAGE (MA) PLAN REGULATIONS ( 42 CFR ) E. DIVISION IN THE CIRCUITS: Relevant Case Law and Holdings F. STATUTE OF LIMITATIONS G. SAMPLE PLANS AND DEFENSES. IX. THE SUPER LIEN: ERISA SELF-FUNDED HEALTH BENEFIT PLANS (12:45 1:00 p.m.) A. HOW TO DISTINGUISH ERISA SELF-FUNDED HEALTH BENEFIT PLANS FROM INSURED PLANS. B. ARE ERISA PLANS EXCEPTIONS TO NEW YORK STATE GENERAL OBLIGATIONS LAW SECTION 5-335? WHEN SHALL NYS GOL APPLY TO ELIMINATE ERISA BASED CLAIMS FOR REIMBURSEMENT OR LIENS? C. ERISA ENFORCEMENT LIMITED TO EQUITABLE RELIEF D. CURRENT CASE LAW UPDATE AND POTENTIAL DEFENSES UNDER ERISA FOR SELF-FUNDED HEALTH BENEFIT PLANS E. MULTIPLE EMPLOYER WELFARE ARRANGEMENTS (MEWAS) X. MEDICAID LIENS (1:00 1:15 p.m.) A. THE FEDERAL ANTI-LIEN STATUTE [42 U.S.C. 1396P(A)(1)]. B. THE FEDERAL ANTI-RECOVERY STATUTE [ 1396p(b)(1)]. C. NEW YORK STATE SOCIAL SERVICES LAW SECTION 104-B D. DISCUSSION OF ARKANSAS DEPT. OF HEALTH AND HUMAN SERVICES V. AHLBORN, 547 U.S. 268 (2006) 5

8 E. DISCUSSION OF TRISTANI V. RICHMAN, 2009 WL (W.D.PA. MAR. 25, 2009) (NO ). F. DISCUSSION OF THIRD CIRCUIT VERSION: TRISTANI II,U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT (JUNE 29, 2011). G. DISCUSSION OF WOS V. E.M.A., 568 U.S. (2013). H. RECENT AND IMPORTANT NEW YORK CASES DEVELOPMENTS. I. RECENT AMENDMENTS: BIPARTISAN BUDGET ACT OF 2013, SECTION 202 OF THE ACT IS ENTITLED "STRENGTHENING MEDICAID THIRD-PARTY LIABILITY." J. HOW WILL THE BIPARTISAN BUDGET ACT OF 2013AFFECT NYS SOCIAL SERVICES LAW 104-B, 367 AND 369? K. MEDICAID ESTATE RECOVERY L. MEDICAID REIMBURSEMENT IN NURSING HOME CASES XI. PROTECTING PUBLIC BENEFITS (1:15 1:30 p.m.) A. SSI AND MEDICAID 1. Eligibility for Medicaid, SSI and Public Benefits: The Resource and Income Thresholds. 2. How to Avoid Unknowingly Disqualifying a Client. 3. What May Be Legitimately Purchased as Exempt Property? 4. What Expenses May Legitimately Be Paid As Exempt Transfers? B. SUPPLEMENTAL NEEDS TRUSTS 1. Authority for Supplemental Needs Trusts 2. Types of Supplemental Needs Trusts 3. Payback vs. Non-Payback Special Needs Trusts 4. Crafting and Implementing an SNT 6

9 5. Use of Structured Settlements to guarantee that the injured Claimant cannot out live the settlement. 6. Application of Federal and State Regulations to settlements. C. POOLED TRUSTS (WHEN A SNT IS NOT AUTHORIZED OR PRACTICAL) D. RELEVANT CASE LAW XII. ATTORNEY S BEST PRACTICES (1:30-2:00 p.m.) A. ADDITIONAL ETHICAL CONSIDERATIONS B. SHOULD A PLAINTIFF PROCEED WITH A CASE IF THE ENTIRE RECOVERY WILL BE PAID TO THE PLAN: a. First Dollar Recovery (No $ for Plaintiff, no $ for his Attorney) b. How will he or she know? c. Making a deal with the Devil: Negotiating at the first sign of a self-funded ERISA Plain. C. THE COERCED LIEN ACKNOWLEDGEMENT AGREEMENT OR COVERAGE DENIAL ULTIMATUM D. OUTSOURCING LIEN RESOLUTION 7

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