The release of this audio recording raises numerous issues.  Williams' career was already in serious jeopardy prior to the release of this recording, but now, he is virtually un-employable.  His rhetoric and tone exceed that which would be considered normal locker room speak, and leaves little doubt that bounties were indeed taking place.  Williams called for specific injuries to numerous San Francisco players, even suggesting players should attempt to go for the head of concussion-prone wide receiver Kyle Williams.  With the multitude of lawsuits already filed against the NFL related to concussion issues, this is pretty damning for Williams, the Saints, and the League as a whole.  It is possible, and perhaps even likely, that Commissioner Goodell could turn Williams' current indefinite suspension into a lifetime ban.  It seems as though Goodell has ample evidence to do so at this point, and he may need to take such a step to remain consistent with the NFL's present crusade in support of player safety.  

To that end, Goodell clearly has authority to discipline Williams, consistent with the NFL's Standard of Conduct: 

A recent article published on socialmediatoday.com suggests that unlike other professional industries, health care providers have been slow to engage on social media.  The article posits that the key reasons for their reluctance stem from concerns about accountability and privacy.  At its root, the issue seems to be that between the protections afforded under the Health Insurance Portability and Accountability Act (HIPAA) and more generalized notions of physician-patient confidentiality, many providers are concerned that a presence in social media threatens patient confidentiality and exposes them to expanded liability.  The article makes the point that a lack of social media presence is itself risky for health care providers, and argues that the risk of not establishing a presence subjects providers to potentially negative commentary and characterization.

The risks to physicians, hospitals and similar providers posed by interaction on social media are analogous to a large extent to those faced by lawyers, a group which in my experience has fairly enthusiastically embraced social media, and opportunities for professional on-line communication and networking.  Like physicians, lawyers are bound by client confidentiality.  We are also bound by rules of professional conduct that regulate what we are permitted to communicate about our services and our experience.  This does (or should) cause us to be cautious and deliberative when engaging social media, particularly when we do so under color of our profession and/or our firm.  Notwithstanding these restrictions, lawyers have been active in social media for many years.

On the other hand, health care providers have to be concerned about additional scrutiny that we lawyers do not.  This includes state and federal oversight associated with Medicare and Medicaid, as well as board licensure review.  Health care providers also face heightened attention and expectations of accountability when there is a bad patient outcome.  Providers may be understandably leery of engaging in yet another form of exposure and communication in which there is certainly opportunity for “bad press.”  However, as the socialmediatoday.com article suggests, media silence can be detrimental both from a financial point of view and in the arena of public opinion.  Even social media silence.

It is not surprising that plaintiffs claiming to be injured in auto accidents are often evasive about their prior medical history and treaters. In an article published by the American Medical Association, “Examinee-Reported History Is Not a Credible Basis for Clinic,” Robert Barth, Ph.D., cites numerous studies confirming that claimants tend to misrepresent their pre-claim functioning as having been “superhuman,” and distort their reported history in a fashion that potentially inflates the financial compensation for their claims.

This forces defense attorneys to utilize alternative methods in their ongoing attempt to locate the pre-accident smoking gun:

• Jail medical records: In a recent Michigan case, a plaintiff admitted he previously suffered a closed head injury from a prior auto accident. However, he claimed that he never had seizures before a subsequent auto/pedestrian incident, and was not taking Depakote for seizures. There was a gap in his post-MVA treatment, and it was discovered he was incarcerated. Indeed, the jail medical records confirmed a year before the accident that he suffered a seizure and was taking Depakote, an anti-seizure medication, for his condition.
  
• MasterTrace: This service bears fruit, particularly when a plaintiff has no prior history of health insurance, and has lived in other states. MasterTrace performs an extensive canvass profile of hospitals and pharmacies within a certain designated radius and matches up with the plaintiff’s background information to come up with potential “hits.” However, this service can be expensive, depending on the nature of the search.
• Prescription Drug Monitoring Programs (PDMP): A PDMP is an electronic database that collects designated data on substances dispensed to a patient in the state. Thirty-seven states currently have PDMPs. On September 1, 2011, pharmacists in Florida began submitting data to the recently implemented Florida Prescription Drug Monitoring Program. Across the country, access to this information is restricted to physicians and law enforcement personnel. While defense attorneys are not able to subpoena the information, if you are lucky, the plaintiff’s treating physician may request a PDMP if he or she suspects drug abuse or doctor shopping. Generally, the physician will not supply a copy of the PDMP in a standard subpoena unless requested, or if you happen to come across it during a review of the actual file in a doctor’s deposition. If you do land such a report, it may provide an abundance of information, including prior treaters and pharmacies, and demonstrate evidence of pre-accident drug abuse.
  
• Veteran Administration Records: Do not skim over the fact that a plaintiff served in the military 40 years ago. He or she may still be treating and receiving prescriptions from your local VA hospital. Further, if a plaintiff is receiving a pension from the VA, he or she periodically has to undergo a disability determination, and fill out paperwork. It is always compelling to see what the plaintiff tells the VA, as compared to Social Security Disability, workers’ compensation, and plaintiff's own treaters during the identical time frame.
• Health Insurance Cards: Somewhere in every treater’s medical record, hospital’s intake sheet, or hidden deep within a prior auto accident claim file is a copy of plaintiff’s health insurance card (if he or she has one). If located, these health insurance records may provide a precise history of all prior hospital, doctor and pharmacy visits.

A plaintiff is not going to hand you his or her pre-accident history on a platter, so expect to do some extra digging. With enough persistence, you may ultimately discover a wealth of information that could undermine the plaintiff’s credibility and case.

Robert Abramson is an associate in the law firm of Kopka, Pinkus, Dolin & Eads in Farmington Hills, MI. He specializes in first-party, third-party and uninsured motorist claims in Michigan. Mr. Abramson is a member of DRI's Young Lawyers and Insurance Law Committees.

Medicare expands resolution options to include a new Medicare repayment program for small settlements or judgments. This program will be available starting in February 2012 and applies to cases settling for $25,000 or less.  Under this program, Medicare will provide final conditional payment amounts before settlement under certain circumstances.  This program has the potential to revolutionize the settlement process for many Medicare beneficiaries, their counsel, and settling parties.  The foundation of that process is to start the verification process early.  

Recently, the Centers for Medicare and Medicaid Services (“Medicare”) released guidance (the “Alert”) relevant to conditional payment reimbursement under the Medicare Secondary Payer (“MSP”) Act (42 U.S.C. §1395y(b)(2)).  This guidance permits certain Medicare beneficiaries to receive a final conditional payment amount from Medicare prior to date of settlement.  Historically, Medicare’s conditional payment reimbursement process has not allowed a Medicare beneficiary or settling parties from obtaining such information from Medicare or its recovery contractors.
 
Under this small settlement option, for a Medicare beneficiary to obtain a final conditional payment amount prior to settlement, the fact pattern must meet all of the following criteria:

1. The liability insurance (including self-insurance) settlement will be for a physical trauma based injury (the settlement does not relate to ingestion, exposure, or medical implant);
2. The total liability settlement, judgment, award, or other payment will be $25,000 or less;
3. The Date of Incident occurred at least six months before the beneficiary or representative submits the proposed conditional payment amount to Medicare; and
4. The beneficiary demonstrates that treatment has been completed and no further treatment is expected either through a written physician attestation or by certifying in writing that no medical treatment related to the case has occurred for at least 90 days prior to submitting the proposed conditional payment amount to Medicare.

If the case meets all of these qualifying criteria, then Medicare, through its recovery contractor, the Medicare Secondary Payer Recovery Contractor (“MSPRC”), will provide a final conditional payment amount prior to settlement.  This final conditional payment amount provided by the MSPRC will only be valid if the Medicare beneficiary settles a claim within sixty (60) days of the date of Medicare’s response.  According to MSPRC, this option will be available to Medicare beneficiaries starting in February 2012, and will effectively allow Medicare’s related claims to be identified pre-settlement.  While the process has not been fully defined, it is likely that once settlement is finalized, the process of requesting a final demand amount from Medicare (by providing gross settlement amount, fees, costs and expenses) will remain the same, regardless of whether this small settlement resolution program has been utilized.

Starting the Medicare repayment process early provides the best opportunity to comply with all Medicare Secondary Payer obligations while expediting the case.  Medicare’s 2012 small settlement resolution program reinforces the need to START EARLY!  To take advantage of this program in a $25,000 or less case means needing to know if an individual is Medicare enrolled, and if so, how much in medical expenses has Medicare paid conditionally.  Having a formalized settlement process that integrates these core concepts will achieve efficiencies and enhance the effectiveness in settlement proceedings.  Such a formalized settlement process should include an analysis of the applicability of this small settlement resolution program.  Thus, screening a case/claim up front to verify entitlement, establishing a tort recovery record with Medicare early in the process and obtaining the first conditional payment letter from Medicare (all as part of a formalized settlement process) and resolution path is the proper path to take advantage of this small settlement resolution program.  Although Medicare currently does not intend to include exposure, ingestion or implantation cases in this program, the Alert identifies that this will be a work in progress.  As a result, if this program creates the intended results that benefit the settling parties, taxpayers and the Medicare program, an extension of this program in 2013 may not be out of the question. 

Medicare intends to issue additional guidance on how to participate in this program in January 2012.  The DRI MSP Task Force will provide further program details once they have been released.  Until then, we continue to stress the importance of verifying Medicare enrollment as early in the settlement process as possible, as that information will better define the scope of the settlement continuum; from reimbursement to reporting to potential future cost of care issues.

CMS Announcements on Fixed Percentage Option for Settlements of $5,000 or less, $300 Threshold Limit for Reimbursement, and Identification of Contractor for Medicare Secondary Payer Recovery

The Centers for Medicare and Medicaid Services (“CMS”) posted an alert (the “Alert”) that confirms that there has been an extension, in certain cases, of the reporting trigger date for Mandatory Insurer Reporting (“MIR”) under Section 111 of the MMSEA.  The Alert provides the new trigger dates based on gross settlement/judgment/other payment (“TPOC”)  values for claims as follows:

On September 23, 2011 the MSPRC announced that it would be adding a Self Service Information Feature to its current Customer Service Line that will provide automated conditional payment information over the telephone. It is scheduled to go live on September 30, 2011. The announcement suggests the advantages of the new telephone feature would be:

We find that it raises more questions than it answers. For example:

More information was promised although none has been received to date. We will keep you up to date as we receive the information.

The long awaited revision to the Non-Group Health Plan User Guide is finally available.  CMS Issued Version 3.2 of the NGHP User Guide on August 17, 2011.  It can be found on the CMS website. To find it, scroll down to the Downloads section.

The issue of whether Medicare Advantage [MA] plans enjoy an enforceable right of subrogation (like Medicare Part A and B plans) was raised yet again in an August 2011 class action suit brought in New York state court. Rebecca Meek-Horton, an MA Health plan beneficiary, settled a personal injury suit involving medical bills paid by the plan.  The plan, which thereafter sought to recover $149,307.69 in injury related medical and hospital expenses. Ms. Meek-Horton took umbrage and brought suit against the plan, Healthfirst, Inc., its agent, Trover Solutions, and 40 other defendants as well as other unnamed Medicare Advantage Health Insurance Companies, claiming that such subrogation efforts violate New York State Genl. Obl. Law §5-335 which in essence prohibits subrogation. Meek-Horton v. Trover, et al, State of New York, Supreme Court, Case NO. 11108804-2011. This suit follows on the heels of a New York trial court decision which held, without extensive discussion, that the Medicare Act does not create a statutory right of reimbursement for Medicare Advantage plans but merely permits them to include subrogation rights in its contracts with beneficiaries. Trezza v. Trezza, 21 Misc. 3d 1209(A), 2011 WL 2640794 (N.Y.Sup.), 2011 N.Y. Slip Op. 51237(U) (June 23, 2011).

This issue is far from decided and we urge defense practitioners to exercise caution in settling claims involving MA payments. 

It is true that recent federal district court decisions have opined that the Medicare scheme fails to create a federal private cause of action. In re Avandia, MDL No. 1871, 2011 WL 2413488 (E.D.Pa., June 13, 2011);  Para v. PacificaCare, No10-1008, 2011 WL 1119736 (D.Ariz., March 28, 2011) and Humana v. Reale, No. 10-21493, 2011 WL 335341 (S.D.Fla., Jan. 31,2011). While recognizing the right of an MA to make itself a secondary payor these decisions have carefully avoided addressing the question of whether state anti-subrogation statutes are preempted by 42 CFR 422.108(f). This regulation provides that “the rules established under this section supersede any State Laws that would otherwise apply to MA plans. A State cannot take away an MA organizations’ right under Federal law and the MSP regulations to bill …for services for which Medicare is not the primary payer.” The Courts in the In Re Avandia and Pacifica decisions expressly stated that a state cause of action exists and the latter further noted that states are as capable as the federal courts to address preemption questions such as that presented by the regulation. Earlier decisions reaching a similar conclusion on the lack of a federal private cause of action, Care Choices v. Engstrom, 330 F.3d. 786 (6th Cir. 2003) and Nott v. Aetna US Healthcare, 303 F. Supp. 2d 565 (E.D.Pa.2004), were decided before the implementation of 42 CFR 411.108(f) in 2005.  

Until the preemption issue has been resolved we urge practitioners to utilize the same defensive strategies applied in settling regular Medicare cases, i.e.  hold harmless agreements and escrow provisions, to name a few. We also take this opportunity to remind the practitioner that these should be agreed upon as part of, not after, the settlement discussion.

During the past two months, FICO quietly rolled out a program to score individuals on the probability that they will take their prescription medications in the manner prescribed. As the privacy implications begin to materialize, let me restate the gist of the program: The company that compiles data to assign a credit score to virtually every citizen in America is now compiling data to assign the population with a score that attempts to predict whether you will be a “good” patient - whether you will take your medications as directed.

The New York Times previewed the program on June 20, 2011, noting that “nearly three in four Americans do not follow doctor’s orders for taking prescription drugs... [while] others forget to pick up their drugs from the pharmacy, skip doses, take their pills at the wrong time or take too much or too little.” In an alleged effort to combat the 125,000 annual deaths associated with the phenomenon, FICO is now selling a service that attempts to predict who will take their medications as prescribed. According to FICO, “insurance companies and other health care groups will use the score to identify those patients who could benefit the most from follow-up phone calls, letters and e-mails to encourage proper use of medication.” Within the next 12 months, FICO expects to score approximately 10 million patients.

While the privacy implications of this service are obvious, they become even more troubling when you consider the mounting pitfalls associated with continually expanding efforts associated with data mining. On Tuesday, the MIT publication Technology Review summarized the issue by noting that “a complex picture of your personal life can now be pieced together using a variety of public data sources, and increasingly sophisticated data-mining techniques.” Unfortunately, the public’s privacy rights are rarely considered and the resulting “picture” is often inaccurate. Technology Review reported that last week at the Black Hat security conference in Las Vegas, researchers were able to show how a photograph of a person “can be used to find his or her date of birth, social security number, and other information by using facial recognition technology.” The researchers, including Carnegie Mellon professor Alessandro Acquisti, acknowledged that the information is being used to “prejudge a person on many levels – as a prospective date, borrower, employee, tenant” and, in the case of FICO’s new program, as a prospective patient.

Looking further at the example of FICO’s program, the potential implications of inaccurate or improperly released information are profound. What is to keep an insurance company from overtly, if not surreptitiously, allowing the score to influence their healthcare coverage decisions? What if the information is inaccurate? What if a patient changes pharmacies or a divorced couple changes the way they obtain their child’s medications – will those changes be recorded in an accurate and timely manner in FICO’s score data, or will the patient appear as though they fail to comply with their doctor’s orders? Worse, there is no mechanism to “opt out” of such reporting and, to the extent that a patient ever learns their score to begin with, the mechanism for changing an error is, at best, unclear.

It is clear that data mining efforts are exploding in America. Unfortunately, it does not appear that safeguards are keeping up. Citizens have a right to know who is compiling data on them, what that data consists of and who it is being provided to. They also have a right to challenge publication and inaccuracies. However, until lawmakers provide a framework to make that possible, or at least realistic, individuals need to be mindful of the electronic trail their actions are leaving.