Nursing Home Litigation
amount CMS claimed from the injury compensation awards of their clients, the Court again ruled for the Plaintiff class on the basis of statutory construction. Te Court held that there is no statutory support for the contention that the Secretary has a direct cause of action and may recover from the Plaintiff ’s attorney where that attorney has received payment from a plan or entity and has disbursed the proceeds to their client without paying Medicare’s claim for reimbursement. Te Court noted that, “Congress never expressly made attorneys responsible for reimbursement under section 1395y(b)(2)(B) (ii) as ‘an entity that receives payment from a primary plan.’” Te Court went on to expound upon the conflict of interest and other ethical concerns present if attorneys are required to “prematurely” disburse settlement proceeds to CMS. Te Court found that CMS has no right to recover from the Plaintiff ’s attorney on a reimbursement claim. While a promising development for Plaintiffs and
their attorneys, the Plaintiff bar should respond cautiously to this District Court decision. Law on the MSP statute is still developing. Te financial concerns about the Medicare program will likely result in legislative and judicial pressure to increase collections under the MSP statute.
Biography Elliott Andalman is partner at Andalman & Flynn in
Silver Spring, Maryland. He is a co-chair of the Disability Benefits Section of MAJ. His practice includes representation on disability benefits claims for federal, postal and state employees,
long term disability claims, including under
ERISA, and social security disability claims. Richard P. Neuworth (Lebau & Neuworth, LLC)
received his JD from the University of Baltimore Law School. He is a dedicated employment and employee benefit lawyer who has been practicing in the employment field for more than 20 years on behalf of individuals. He has extensive experience in employment benefits, discrimination, harassment, workers' compensation and social security disability cases. Michelle Amick is a third year law student at the
University of Baltimore in Baltimore, Maryland. She graduated as a member of Phi Beta Kappa from the Catholic University of America in 2008. She has clerked for Andalman and Flynn for 1 year, primarily assisting in the disability, employment, and personal injury sectors.
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James Markham
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FORENSIC ECONOMIC STUDIES Personal Injury / Wrongful Death Commercial Matters Labor & Employment Philadelphia: 215-546-5600 Trial Reporter / Fall 2011 15
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