From its beginnings nearly 15 years ago, the Center quickly established a reputation for crafting creative solutions for difficult problems. This is because we have always enjoyed challenges and designing unique responses to complex situations. Some of the solutions we have crafted over the years turned out to be limited to single cases while others have proven to have more global application.
If you are an attorney having difficulty finding a solution for a client’s problem, give us a call to discuss how we might be able to help. While we cannot guarantee solutions, we can guarantee that we will bring all of our creativity and dedication to your client’s problem. Some examples of the global solutions we created are described below.
Pooled Medicare Consideration Account
There is no question that a formal Medicare Set-Aside (MSA) approved by the Centers for Medicare and Medicaid Services (CMS) is the best and most reliable method to protect ongoing Medicare entitlement for claimants who settle workers compensation cases and significant liability cases. However, this formal method of creating MSAs is not practical or possible for modest liability settlements because it requires additional time and cost. In turn, this gives rise to the dual problem of jeopardizing claimants’ future Medicare entitlement while also creating one more impediment to settling cases.
In response to this dual problem, we established our Pooled Medicare Consideration Account (PMCA). It can remove the impediment to settling cases because it is economical, which is an important consideration with modest liability cases. In terms of protecting future Medicare entitlement, the PMCA can also be used as reasonable way to avoid shifting future medical expenses to Medicare when there are not a lot of settlement proceeds to go around after fees and litigation costs.
Using the Pooled Trust concept as a model, the PMCA is able to take advantage of our in-house economies of scale. Accounts are pooled for consolidated management, which reduces cost, but each individual PMCA account is segregated in the pool as a separate account. In addition, drafting costs are eliminated entirely because the PMCA documents are ready and waiting to be used just as they are with a Pooled Trust. The process for opening an account is simple, and all a claimant needs to do is sign an individual account agreement and fund it with whatever amount will be used to pay for future accident related medical care.
The individual agreement incorporates a master agreement, and it includes several simple exhibits that ask for basic claimant information so we are able to open an account. The exhibits also ask for instructions on how the funds should be used. As long as the instructions clearly identify how the funds should be used, they can be formal or informal depending on the larger context of the case. For example, if all a claimant will need is some specific procedure in the future, the instructions could be as simple as a letter from the claimant’s attorney or doctor identifying the procedure.
Whatever the instructions for future medical care may include, using the PMCA means that the funds will be protected and only spent for their intended use. While using the PMCA does not provide the same guarantee as a CMS approved MSA, it is a reasonable method to settle liability cases and to document that the claimant took affirmative action to avoid shifting future medical expenses to Medicare. Until such time as CMS might finally take responsibility for providing clear and reliable guidance, the PMCA is a practical and economic solution for claimants, plaintiff attorneys, and defendants who want to meet their obligations regarding Medicare.
The U.S. Department of Justice Victims Compensation Fund
The purpose The U.S. Department of Justice Victims Compensation Fund (Compensation Fund) is to receive restitution payments that are made in connection with successful prosecutions brought by the United State Department of Justice, Child Exploitation and Obscenity Section (the “Department”) against defendants who have committed sexual crimes against children. Trust beneficiaries are the victims of crimes that have been prosecuted by the Department.
These cases are typically brought as part of Project Safe Childhood, which is a national initiative that the Department describes as, “…a unified and comprehensive strategy to combat child exploitation. Initiated in May, 2006, Project Safe Childhood combines law enforcement efforts, community action, and public awareness. The goal of Project Safe Childhood is to reduce the incidence of sexual exploitation of children”. See http://www.justice.gov/psc/about-project-safe-childhood for more information. According to the Department’s website, the annual prosecution rate has increased each year since the project’s launch date in 2006.
The Center is proud of its work in developing the Compensation Fund for the Department. It can be used both internationally and domestically, and it was designed to meet two broad objectives. First, it has been designed to avoid additional complications at the conclusion of a successful prosecution by being straight-forward and easy to use. Second, and most importantly, it has been designed as a cost-effective method for protecting the interests of these young beneficiaries. While each child’s fund can be established with detailed and specific instructions for how the funds should be used, the documents contain very broad default provisions in the event the Center receives no instructions. These default provisions ensure that the Center has discretion to use the funds in any way necessary to meet the child’s material, emotional, and psychological needs no matter what those needs may be.
Non-Resident Alien Disbursement Account
Our Non-Resident Alien Disbursement Account (Disbursement Account) is designed to solve the unique challenges involving settlements between domestic Defendants and foreign Plaintiffs who are Non-resident Aliens. In many cases, Defendants are unable or unwilling to make settlement payments to Non-Resident Aliens because they do not have Social Security Numbers or domestic bank accounts. The Disbursement Account can be used to solve these specific issues.
Establishing an individual Disbursement Account can also provide a secure, consistent, and reliable method for making settlement payments to foreign Plaintiffs. While the primary intent is to make non-taxable payment to Non-resident Aliens for personal injury, medical malpractice and wrongful death settlements, we recognize that Defendants also need to make settlement payments on occasion to Resident Aliens. Therefore, the larger purpose and intent of the Disbursement Account is to make non-taxable settlement payments to both Non-resident Aliens and Resident Aliens alike. However, this larger purpose and intent does not preclude us from making taxable payments to either Non-resident Aliens or Resident Aliens in addition to non-taxable payments. In those cases were taxable payments may need to be made to Non-resident or Resident Aliens, we take care of filing any necessary and appropriate tax returns.
We make all disbursements according to instructions provided by the Plaintiff in the disbursement schedule that is attached to each individual Disbursement Account agreement. Each Plaintiff is also asked to include residual beneficiary information so that we can follow the Plaintiff’s wishes if funds remain at the time of death.
The 409(17) Fund is a settlement tool that we established to help Medicaid recipients and their attorneys comply with a 2013 amendment that changed Florida Statute §409.910, otherwise known as the Medicaid Third-Party Liability Act (the “Act”). While it was created for more than one claimant, its use is obviously limited to Florida cases. Unless you are simply curious to learn how we responded to a change in Florida law, the description that follows will likely not be of interest to you if you have a non-Florida case.
Background: similar to the law of many other States, the Act controls the rights and responsibilities of Medicaid recipients and their legal representatives when resources become available from a liable third party after Medicaid has provided medical benefits to an injured party. In other words, the Act establishes Medicaid’s lien rights along with the Medicaid recipient’s duty to satisfy any liens.
Prior to the change that became effective on July 1, 2013, it was perfectly appropriate for law firms to hold any disputed funds in their trust accounts while the amount owed to Medicaid was resolved. Now, however, the Act requires the full amount claimed by Medicaid to be paid in full to the Agency for Health Care Administration (the “Agency”), or alternatively, to be placed in an interest-bearing trust account for the benefit of the Agency.
Obviously, most law firms who dispute a Medicaid claim do not want to pay the full amount to the Agency and then hope for a refund. Therefore, we established a compliance tool so law firms can meet this new statutory requirement without paying the full amount to the Agency. The 409(17) Fund allows law firms to place the disputed funds in an interest-bearing account for the benefit of the Agency while contesting the amount owed. While the Act does not prohibit attorneys from opening and maintaining an interest-bearing account on their own, many law firms view it as a logical choice to shift this additional liability to an independent third party.
How it Works: the 409(17) Fund works very simply and efficiently. To open an account, all we need is an Individual Application Form signed by the Medicaid recipient or legal representative along with a check in the amount claimed by Medicaid. The Individual Application Form is a short and simple form that comes with an Instruction Sheet with easy to follow directions.
When we receive the signed Individual Application Form and check, one of our designated representatives will sign the Form, deposit the check, and return a copy of the fully signed Form to the law firm. In addition, we also provide a Deposit Receipt and a Certificate of Account so the law firm can demonstrate compliance with the statutory requirement to place the funds in an interest-bearing account.
The funds remain in the account, and we will only disburse upon one of the following events: 1) the entry of an order determining the Agency’s rights; 2) a written and signed directive from the individual Medicaid recipient or their legal representative to disburse all of the funds to the Agency; or, 3) a written and signed agreement between the individual Medicaid recipient or their legal representative and the Agency that settles the claim for an identifiable amount.
Although the Fund holds the full claim for the benefit of the Agency as specified by statute, the Fund also addresses the needs of the Medicaid recipient as described below.
- The Medicaid recipient’s ongoing Medicaid eligibility is protected because the funds are specifically not available while the claim is being disputed.
- The Medicaid recipient can direct where any remaining funds are disbursed after the claim is resolved, including to a special needs trust.
The Medicaid recipient can avoid probate in the event of death prior to the claim being resolved by naming residual beneficiaries in the Application Form.
We Invite You to Contact Us
So again, if you are an attorney looking for a solution to a client’s difficult problem, we would welcome the chance to discuss how we might be able to help. Call today and let us put our creativity to work.