LIENS AND MEDICARE SUPER LIENS - ARE SOME LIENS MORE EQUAL THAN OTHERS?
A. MEDICARE'S BENEFIT PLAN
Since its inception, the Medicare system has grown enormously and is an important source of health insurance coverage for the elderly and disabled. Medicare currently provides health care benefits for those 65 and over, for persons who are disabled (i.e., those individuals under the age of 65 who have received Social Security disability benefits - 29 months after the onset date of disability), and for persons with "end stage renal disease." Individuals diagnosed with Lou Gehrig's disease, ALS, may also receive Medicare coverage immediately. Currently, there are forty (40,000,000) million participants in the Medicare system. The overall population is aging and seventy six (76,000,000) million baby boomers will enter the Medicare system beginning five years from now The Medicare program is part of the United States Department of Health and Human Services (HHS).
Medicare's plan includes or will shortly include the following benefits:
- Critical care services such as hospitalization (Part A) Medicare pays 80 per cent of all such expenses.
- Physician services and durable medical equipment. (Part B) Medicare pays 80 per cent of all such expenses.
For more information concerning Medicare's prescription drug plan. See www.medicare.gov, www.kff.org and www.medicarerights.org. See also, Baltimore Sun, September 24, 2005. (list of health insurers offering prescription drug coverage in Maryland to Medicare beneficiaries and recipients)
B. MEDICARE'S RIGHT OF RECOVERY OR SUPER LIEN
Medicare has broad statutory and regulatory rights to recover those amounts paid on behalf of a Medicare recipient in instances in which other sources of recovery are available. The public policy underlying the "super lien" is that third parties may not shift the cost of medical expenses attributed to their wrongdoing from themselves to taxpayers.
In fact, the general interpretation of Medicare's right to recovery has been that it requires a plaintiff's attorney to resolve Medicare's lien before paying out the proceeds of a tort settlement to the client.
Medicare's right of recovery or "super lien" stems from its status under 42 U.S.C. 1395y(b)(2) as a "secondary payer" of medical benefits for its recipients. As a secondary payer, Medicare has a broad right of recovery that includes not only a subrogation interest, but an independent right of recovery and a qui tam action that may be brought by any private person or organization on behalf of Medicare.
In fact, Medicare's independent right of recovery is not limited just to the parties mentioned above but also has an independent right of recovery from any entity, including a beneficiary or beneficiary's attorney, that has received a third party payment. 42 C.F.R. 411 (g) states that Medicare "has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received a third parry payment."
Medicare's right of recovery as a secondary payer is that it will not make payment for any item or service for which "payment has been made or can reasonably he expected to be made" by a primary payer, such as a workmen's compensation plan, an automobile, health or liability insurance policy or plan, or an employee health plan (including a self funded plan), Department of Veterans Affairs, Federal Black Lung program, Public Health Service and/or business with insurance including self-insured businesses'. This provides Medicare with authority to affirmatively withhold benefits as a secondary payer in circumstances in which there exists potential primary payers. Medicare is also permitted to make conditional payments as well to recipients and beneficiaries and then recoup those payments from third party wrongdoers. Medicare also has no liability or obligation to pay for any services related to the injury that were furnished before the date of a settlement of a personal injury case and that the beneficiary did not specifically identify to Medicare in writing before a release was executed.
As a practical matter, Medicare's right of recovery accrues when a Medicare recipient or beneficiary or provider receives payment from a third party in any form whatsoever including settlement or judgment or mere payment of funds to a provider. Medicare can then pursue repayment of its conditional payments by exercising its right of subrogation or by bringing a direct action. See, 42 CFR Section 411.20 et. seq. and 42 U.S.C. 1395y(b)(2) (B) (iii) which provides that "United States shall be subrogated (to the extent of payment made under this Title for such an item or service) to any tight under the subsection of an individual or any other entity to payment with respect to such item or service under a primary plan."
If the beneficiary or other entity receives a third party payment, the beneficiary or other party must reimburse Medicare within 60 days of receipt of the third party payment. For the purposes of personal injury lawyers, it is important to note that settlement or judgment amounts are deemed to be third party payments.
If reimbursement is not made to Medicare within 60 days of receipt of third party payment interest accrues until reimbursement is made.' Interest accrues even if no notice of Medicare's lien has been provided.
An example of the consequences of not complying with Medicare's rights occurred in the case of United States v. Sosnowski, 822 F.Supp. 570 (W.D. Wis. 1993). In Sosnowski, the government found the Medicare beneficiary and his attorney jointly and severally liable to the government for failing to reimburse Medicare after receiving judgment proceeds in a personal injury case. See also, Matter of Riley, 1994 WL 413173 (Cal. Bar Ct. 1994) (Disciplinary hearing where State Bar's notice to show cause alleged that respondent knew or should have known that Medicare would have a lien against the settlement, and that he failed to honor Medicare's statutory lien)
A more recent unpleasant example is Brown v. Thompson, 374 F. 3d 274, (4th Cir 2004), in which Ms. Brown received a settlement of $285, 000 as a result of a medical malpractice claim. Ms. Brown rebuffed Medicare's efforts to collect any portion of the settlement and was eventually forced to pay the entire Medicare lien.
In this case, Ms. Brown first decided to file a declaratory judgment action in federal court in Virginia contending that Medicare is not entitled to reimbursement alleging there was no "prompt payer of medical bills existed" and Kaiser's self-insured plan did not qualify as a primary plan under the MSP. Ms. Brown's suit was supported by the Virginia Trial Lawyers Association. At the outset, however, Ms. Brown found herself being forced to challenge the recent amendments to the 2003 Medicare Secondary Payer Act which were enacted and became effective on December 8, 2003 that affected both arguments.
The Fourth Circuit held in Brown that the word "promptly" had been removed from the statute as part of the 2003 amendments and therefore the MSP clearly provides that the reasonable expectation of a prompt payment is not a requirement for reimbursement. MSP now states unequivocally that a primary plan and an entity that receives payment from a primary plan, shall reimburse Medicare for any payment for any item or service. 374 F. 3d 258.
With respect to the argument that Kaiser's self-insured plan did not qualify as a primary plan, the Fourth Circuit held that based on the 2003 amendments that "an entity that engages in a business, trade, or profession shall be deemed to have a self-insured plan will qualify under the 2003 amendments. 374 F. 3d. 262.
C. ATTORNEYS FEES FOR CLAIMS BROUGHT ON BEHALF OF BENEFICIARIES AND RECIPIENTS
Regulations governing Medicare's recovery as a secondary payer allow for reduction (waiver of claim or compromise) of the claim amount for costs of procuring the judgment or settlement. Attorney fees are deductible from either a judgment or settlement based on the following formula (42 C. F. R. 411.37)
- Determine the ratio of the attorneys' fees and costs of litigation to the total judgment or settlement
- Apply this ratio to the Medicare payment. The product is the Medicare share of the attorneys fees and costs of litigation
- Subtract the Medicare share of attorneys fees and costs from the Medicare payments. The remainder is the Medicare recovery amount.
D. STATUTORY REDUCTIONS OF MEDICARE'S LIEN
Medicare is given three sources of statutory authority to reduce its claim beyond its share of attorneys' fees and expenses that are contained in the following statutes. 42. U.S.C. 1395gg(c); 42 U.S.C. 1395 (b)(2)(B)(iv) and 31 U.S.C. Section 3711. CMS must approve a complete waiver of its claims. The case must be settled if a complete waiver is sought. There are three principal reasons for a further waiver that are either the claimant is without fault and adjustment or recovery would either defeat the purpose of either title II or XVIII of the Act or be against equity and good conscience. A second reason would be if waiver would be in the best interests of the Medicare program. If granted under this provision, no appeal of a partial waiver is permitted Finally, a claim may be compromised where the costs of collection does not justify the enforced collection of the full amount of the claim, there is an inability to pay within a reasonable period of time on the part of the individual against whom the claim is made or the chances of successful litigation are questionable, making it advisable to seek a compromise settlement.
An appeal is theoretically possible if there is dissatisfaction with an overpayment determination. Specifically, the beneficiary may appeal the existence of the overpayment, the amount of the overpayment and a less than fully favorable determination of Section 1870 (c) waiver request or negotiation of a compromise, or suspension or termination of collection action under the Federal Claims Collection Act. An initial appeal to an administrative law judge must be taken within 60 days of the disapproved waiver or compromise.
Litigation cannot be brought against Medicare concerning the appeal until administrative procedures set forth above have been fully exhausted. Failure to do so will result in dismissal.
E. WCC – CONTINUING OBLIGATIONS TO PROVIDE HEALTH INSURANCE
Even if the initial Medicare lien has been paid, Medicare still retains its status as a "secondary payer" with respect to workers compensation cases and therefore set asides in settlement agreements must be established for lifetime future medical expenses associated with such cases. See 42, C.F. R. 411.40 et. seq.
F. STRUCTURED SETTLEMENTS
In personal injury actions other than workers compensation, Medicare will
become the primary payer of future medical bills once their lien has been satisfied.
However, Medicare will not be the primary payer in personal injury actions if the
judgment or settlement provides for another entity or party to pay for future medicals.
Therefore, the attorney needs to know about the financial solvency of the third party
before entering into a structured settlement to pay future medical expenses.
II. TIPS INVOLVING THE MEDICARE SUPER LIEN
A. CONTACT INFORMATION FOR MARYLAND MEDICARE In order to determine whether or not, there is a Medicare lien, the attorney must first ascertain amount owed and whether or not it is negotiable or not by the Center for Medicare and Medicaid Services. (CMS) after determining the claimant's age and health insurance status.
CMS has a central Coordination of Benefits (COB) office that has a master record of payments of outstanding bills concerning hospitalization (Part A) and physician visits (Part B) and soon to be prescription drugs (Part D).
An attorney can call a toll-free number and the COB office will direct you to their lead contractor concerning the case. COB's toll free number is 1-800-999-1818 and the mailing address for inquiries is: Medicare-COB, MSP Claims Investigation Project, P. O. Box 5041, New York, New York 10274-5041 or P. O. Box 125, New York, New York 10274-0125.
The lead COB contractor to contact is where the Medicare beneficiary or recipient resides. For Maryland residents, the address is:
CareFirst of Maryland, Inc.
Medicare Secondary Payer Subrogation Unit
1946 Greenspring Drive
Timonium, Maryland 21093
CareFirst may be notified about the personal injury or illness by the beneficiary, attorney, an insurance company or a provider of services.
CareFirst has two useful publications concerning frequently asked questions concerning the Medicare Secondary Payer Act and the Super Lien which are Overview of the Medicare Secondary Payer Act and Medicare Secondary Payer (MSP) Frequently Asked Questions and Answers from Attorneys. The website address to obtain the publications is www.marylandmedicare.com.
Assuming that you are representing a Maryland resident, Carefirst of Maryland Inc. will notify any other Medicare office across the country that may have paid claims on behalf of your client so that you (the Attorney) will only have to deal with one Medicare office.
CareFirst should be furnished with the following information so that they can make appropriate inquiries:
- Your name
- The recipient or beneficiary with Medicare
- The person with Medicare's health insurance claim number (HIC#)
- Date of the accident assuming an accident
- Status of the Case
- Projected time frame for settlement
- Description of your client's injuries (permanent or non-permanent)
- Signed release of information agreement
- All other elements of damages in the case
According to Maryland Medicare, one should contact them as soon as possible concerning whether or not Medicare has paid anything because it takes between six and twelve weeks for it to put together on bills and claims associated with the lien. See, Overview of the Medicare Secondary Payer Act. Unfortunately, that time period is likely to increase due to Part D coverage being added on January 1, 2006.
CareFirst or other appropriate COB lead contractor will provide a written demand letter stating how much Medicare's right of recovery presently is and a beneficiary consent form. This amount is not necessarily the final amount and should not be relied upon by either the attorney or beneficiary as the final amount.
B. TIMING OF WHEN TO CONTACT MEDICARE ABOUT NEGOTIATING OR MINIMIZING ITS LIEN
The attorney must consider several factors before contacting Medicare and discussing possible resolution or minimization of the lien through compromise and waiver.
These factors include the following:
- Does the wrong doer have liability coverage or self-insurance in the absence of liability coverage?
- Has the wrongdoer already paid any past medical expenses related to the disease, illness or injury?
- Has all medical treatment been completed?
- Are the bulk of the medical expenses incurred in the first 29 months after the date of injury or diagnosis of illness for an individual that is receiving Medicare benefits that is under the age of 65?
- Is future medical treatment contemplated and the type of services that would be necessary would or would not be covered by Medicare?
- Type of claim - is it workers compensation or any other type of personal injury claim?
- Liability of third party – Is liability contested or not contested?
- Does Medicare pay the existing medical bills in excess of the liability insurance policy and/or will future medical bills paid by Medicare exceed the policy limits?
- How soon is the trial or judgment date on the claim?
- How strong are other elements of damages in the case, or will a potential judgment apportion the proceeds to items other than medical expenses paid or will be paid by Medicare?
1. PERSONAL INJURY CASES
It makes no sense to contact Medicare in personal injury actions to negotiate a lien until first determining the onset date of Medicare coverage for individuals under age 65. If the individual is under age 65, Medicare has no lien for the first 29 months after diagnosis of illness or injury. Further, an investigation must be made regardless of the client's age concerning whether or not the third party wrongdoer has liability coverage or self-insurance in light of Brown supra. Further, an attorney cannot contact Medicare until an accurate assessment is made concerning when potential medical treatment and services covered by Medicare will be completed and/or whether or not the medical bills will exceed the policy limits of the insurance or self-insurance. It may well be disadvantageous to the client to negotiate the lien prior to filing the underlying liability suit because a private cause of action under the MSP may also be maintained against the third party wrongdoer as a result of the 2003 amendments. Therefore, it seems unlikely that the best time to contact CMS and the COB for negotiations would be prior to suit being filed.
Once suit is filed, if the case is subject to dismissal prior to trial and/or medical treatment is ongoing, it would not be practical to contact CMS or COB concerning the lien until a court decides dispositive motions unless there are ongoing settlement discussions.
If liability is not an issue and the issue of insurance has been satisfactorily resolved as well as what future medical treatment and services are necessary, the best time to contact CMS and COB contractor would be prior to trial or a settlement conference prior to trial. Again, it will take time to contact all appropriate agencies prior to trial that must also be factored into the equation concerning either waiver or compromise. This problem will be complicated much more after January 1, 2006 when Part D coverage goes into effect.
Three additional points needs to be analyzed concerning personal injury actions. First, the attorney must consider the impending addition of Part D prescription drug coverage on January 1, 2006 for personal injury actions. It may make more sense to resolve the Medicare lien before January 1, 2006 if at all possible because Medicare may well be responsible for Part D coverage for prescription medications. Every additional dollar of Medicare coverage under Part D may make questionable liability cases even more difficult to settle.
As noted earlier, all medical bills should be paid by third party insurance coverage for personal injury actions as part of the underlying settlement because Medicare will not pay any medical bills incurred prior to the date of settlement if they have not been previously submitted to CMS and the lead contractor.
Furthermore, with respect to structured or regular settlements concerning personal injury actions for claimants under age 65, as much of the settlement proceeds as possible should be directed towards payment of the first 29 months of medical expenses associated with illness or injury as a set aside. Medicare has no lien and is not responsible for paying any medical expenses during that period.
2. WORKERS COMPENSATION CASES No effort should be made to settle the Medicare lien if there is a finding of compensability and/or necessity of treatment by the Workers Compensation Commission is favorable and no appeal is taken by the employer and insurer. Instead, a supplemental action under federal law should be filed against the insurer for any and all amounts paid by Medicare.
If the claimant appeals a finding of no compensability, any decision to settle must reflect future medical expenses. If future medical expenses are large, it is difficult to settle because of the potential Medicare lien.
If the employer and insurer do appeal, it is very difficult to settle the case unless and until there is a set aside for future medicals associated with the workers compensation case for claimants requiring such treatment. In fact, it may be impossible to settle the workers compensation case because Medicare will again be a secondary payer and not responsible for future medical bills.
On July 11, 2005, CMS established a website for attorneys representing Medicare Beneficiaries in workers compensation cases. The website provides useful and important information and is entitled "Medicare Coordination of Benefits- Workers Compensation" Attorneys, www.cms.hhs.gov/medicare/cob/attorneys/att-wc.asp.
C. WHAT TO PROVIDE CMS WHEN YOU CONTACT THEM CONCERNING NEGOTIATING OR MINIMIZATION OF THE LIEN1. CASE HAS NOT YET BEEN SETTLED After determining that there is a lien and the relevant factors dictate attempting to reach a compromise with Medicare because its lien is too large based on offers of settlement, potential liability problems or verdict amount, the attorney needs to contact CMS directly and do the following:
- Make a written request for compromise to Regional Office
- CMS refers the party to staff person to handle the negotiations
CMS will also advise the attorney and beneficiary that its conditional payment must be considered during settlement negotiations with any third party. Federal law authorizes Medicare's priority right of recovery from liability, settlement or judgment proceeds.
In requesting a compromise, it is recommended in the Medicare Intermediary Manual to provide the following information:
- Attorney Fees
- Accident related out of pocket medical expenses incurred
- Expense and income information which demonstrate financial hardship
2. CASE HAS BEEN SETTLED If the attorney is seeking a complete waiver of the lien, the case must be again referred to CMS for its consideration. In order to refer the case, Medicare must have the Medicare Overpayment Questionnaire completed in writing from the attorney explaining the reason for the waiver. A waiver/partial waiver is sought, the case must first be settled. The determination is made by the lead contractor/intermediary within 120 days. The criteria for the waiver determination were listed previously. All waivers over $100,000 must be processed through the CMS center in Baltimore.
Waiver may also be obtained if it is not in the best interests of the program as noted above. CMS's staff is the only ones that may grant such requests. Waivers granted under this authority may not be appealed because they are confided to CMS's discretion.
D. PAYMENTS TO MEDICARE
Payment of the lien also presents tricky issues. A difficult problem that can
arise is how much is the total lien. One should submit as much as information about the medical expenses associated with the accidental illness or injury as possible to the previously mentioned parties at CMS and COB. Thereafter, the process is as follows:
CMS will prepare an initial demand letter that will be sent the lead contractor.
A notice of Medicare's Potential Recovery will be sent to the requesting party. Presently, CMS will take about 2 months to determine the total amount that is owed to it. Until CMS provides the final answer, any action taken relying on your own calculations or this notice of what is due to Medicare will backfire on potentially both you and your client. This point becomes even more important after January 1, 2006 and the onset of prescription drug coverage which could well adversely affect the calculations.
During or after the two-month review, CMS next sends a "Notice of Conditional Payment" that will contain a list of each claim Medicare has paid and total amount of the conditional payment. The notice states that it will continue to check their records and will keep you informed of any updates.
If during the two-month review period between receiving the Notice of Conditional Payment and the actual payment of settlement funds is delayed and new medical expenses are incurred, a request should be made for a revised conditional payment notice. Again, this point needs to be considered because of prescription drug coverage on January 1, 2006. Until the check is actually paid to Medicare and a release is obtained, the amount of the conditional payment may be a moving target subjecting both the attorney and client to further litigation with CMS and legal malpractice actions.
In the event that a settlement check is made out to multiple parties including Medicare, then all parties must endorse on the check and send it to Medicare. If there is an overpayment to Medicare, a refund will be issued for the difference that may take between 10 and 15 business days. Medicare will not endorse settlement checks where Medicare has an interest without satisfying the debt first. The endorsement and signed release extinguish Medicare's collection rights on the actions subject to the limitations mentioned previously concerning workers compensation and structured settlements.
III. 2003 AMENDMENTS INVOLVING THE MEDICARE SECONDARY Payer ACT ESTABLISHING A COMPREHENSIVE PRIVATE CAUSE OF ACTION
On December 8, 2003, President Bush signed the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (Pub L. No 108-173) devoted principally to including prescription drugs as part of the package of benefits offered to Medicare recipients and beneficiaries. More importantly, a series of amendments was included as part of the legislation to enable Medicare recipients and beneficiaries to bring qui tam actions against an expanded class of businesses with insurance and self-insurers that cause injuries or are involved in wrongdoing . The amendments are found in Title III at Section 301 of this Act. The actions are brought on behalf of Medicare against the wrong doing business or insurer or both.
Prior to the enactment of these 2003 amendments however the private cause of action although enacted in 1986 (See Section 42 U.S.C. 1395y (2)(B)(3)(A) and providing for double damages was rarely used because of the crabbed interpretation by the federal courts. E.g., Mason v. American Tobacco Co., 36 F. 3d 36 (2nd Cir. 2003) The 2003 amendments were expressly designed to make it easier to bring more of these actions.
A. THE 2003 AMENDMENTS The italicized changes to the 2003 amendments are as follows:
In 42 U.S.C. 1395y (2) was amended as follows in this subsection, the term "primary plan" means a group health plan or large group health plan to the extent that clause (i) applies, and a workmen's compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance, to the extent clause (ii) applies. An entity that engages in a business, trade, or profession shall be deemed to have a self-insured plan if it carries its own risk (whether by a failure to obtain insurance or otherwise) in whole or in part.
In 42 U.S.C. 1395(y)(2)(B)(ii) A primary plan's responsibility for such payment [to Medicare] may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver or release (whether or not there is a determination or admission of liability will demonstrate a plan's responsibility to reimburse Medicare).
In Section 1395y (2) (B)(i) Reimbursement is no longer tied to anticipation of "prompt" payment because the Secretary of HHS may make conditional payments "if a primary plan has not made or cannot reasonably be expected to make payment with respect to such item or services promptly".
In Brown v. Thompson, 374 F. 3d 254, 259-60 fn 7 (4th Cir. 2005), the Fourth Circuit held that these 2003 amendments were clarifying not a substantive change. This amendment does not make entirely clear whether the absence of insurance purchased from a carrier-without some additional indication of at least an informal pre-arrangement to self-fund liability claims as they arise suffice to create self-insured plan.
If there is no insurance or self-insurance, the Fourth Circuit seemed to hint in Brown supra then it seems very unlikely that the private cause of action may be Maintained based on the 2003 amendments.
B. IMPLICATIONS OF 2003 AMENDMENTS
These amendments have potentially profound implications involving all types of personal injury litigation that will be potentially affected when Medicare recipients and beneficiaries are involved in any type of personal injury litigation or injured at work. Limitations on pain and suffering imposed by the Maryland General Assembly would not limit the recoverable amounts under these amendments for medical expenses which could make up for the reductions concerning pain and suffering. Previous defeats involving ERISA complete preemption of state causes of action in 1998 and 2003 would not prevent double recovery of outstanding medical expenses under the amendments. In addition, health maintenance organizations would not be able to maintain a shield against liability due to the qui tam provisions and expanded definitions of what entities that would be liable being brought on behalf of Medicare. The 2003 amendments have other desirable features as well.
The qui tam provision means literally anyone or any entity may bring the federal action against the third party wrongdoer. The victim is not only party that could bring such an action.
The third party wrongdoer is collaterally stopped from re-litigating liability and damage issues in a subsequent action brought pursuant to the amendments if a judgment has been obtained in the underlying action or possibly a finding of compensability by an administrative agency that was never appealed.
The Brown decision with respect to the amendments being clarifying and not substantive amendments would seem to open the door to actions filed prior to December 8, 2003 and negate arguments that the amendments are ex post facto prior to being signed into law. Instead, the only bar would be the statute of limitations. In fact, one need not actually file such a federal action; instead mere threats of filing such an action if you prevail in the underlying personal injury action may be sufficient to obtain a better settlement. However, some examples to consider using the federal cause of action include workers compensation cases particularly occupational disease that would no longer be governed by exclusivity provisions under state law concerning fees. See Manning (substantial monetary recovery -2004 WL 232256 (S.D. N.Y. 2004) Nursing home litigation should be significantly expanded because all medical expenses would be doubled that are paid Medicare. Medical malpractice actions against health maintenance organizations and self-insured employers that increase the medical expenses caused either by a refusal to pay for or not provide treatment and/or cause increased medical bills to claimants as a result of injury during treatment that are paid by Medicare could be doubled. In mass tort cases involving defective products causing large medical bills paid by Medicare would certainly become much more valuable to litigate regardless of little lost wages because the medical bills could be doubled. In motor tort actions, more cases should be taken that have large medical bills regardless of whether or not the claimant has suffered lost wages.
C. TIMING OF WHEN TO FILE A PRIVATE CAUSE OF ACTION
One should scrupulously avoid filing an action under the 2003 amendments until after the underlying personal injury action is disposed of either by judgment, settlement or hearing. The private cause of action pursuant to the 2003 amendments is a federal one and a personal injury case could be removed to federal court because the private cause of action is based on a federal statute and/or subject to motions to consolidate with a federal court action. The only exception would be if the statute of limitations is running out for filing an action pursuant to the 2003 amendments and asking the court to stay the proceedings pending the state court action.
D. STATUTE OF LIMITATIONS
One circuit court of appeal has already applied a six-year statute of
limitations based on the Federal False Claims Act. See, Manning v. Utilities Mut. Ins.
Co., Inc. 254 F. 3d 387, (2nd Cir. 2001) Contra, See, Brooks v. Blue Cross and Blue
Shield of Fla., 1995 WL 931702 at *18 and *19 (S.D. Fla. 1995)
The statute of limitations would be triggered by the payment of medical bills and expenses by a third party.
E. CONCLUSION
The 2003 amendments present both challenges and opportunities for Plaintiff's attorneys. Certainly, the advantages outweigh the disadvantages for many different causes of action.