Medicare to assess penalties for late eligibility filings beginning in summer 2009 for WC and liability cases

The attorneys at Burns White would like to bring to your attention an important Medicare issue that will be affecting liability and workers’ compensation cases as of July 1, 2009. If the below policies are not complied with, penalties can be assessed in the amount of $1,000 per day, per claim.

The legislation passed is the Medicare, Medicaid and Schipp Extension Act of 2007. In particular, Pages 15-22 illustrate the Medicare Secondary Payor responsibilities under Section 111, which, like the Medicare Modernization Act, serves to enforce existing statutory responsibilities. Specifically, Section 111 provides that filings will need to be made to Medicare providing information regarding an individual’s eligibility for Medicare benefits on dates to be specified by the Secretary of the Department of Health and Human Services.

When this policy takes effect in July 2009, a filing will have to be made to Medicare on every case that settles, or that has a judgment or award made. It is not established as of now when the filings are required, or exactly what information they should contain, but the filing will tell CMS whether a Claimant is Medicare-eligible. If the filings are not made on time, there is a $1,000 PER DAY fine, PER CLAIM.

Due to the fact that Medicare will not begin assessing penalties until at least July of 2009, Burns White will be available to assist you in your preparation, including development and implementation of a policy addressing this change before it takes place. In particular, we will make sure our plan provides for routine Social Security Verifications on open claims and those positioned to settle or reach trial.

As this matter progresses, Burns White will have updated information from the Secretary, so that we can best help protect client interests. If you have questions, please contact one of our Workers’ Compensation or Medicare Set-Aside attorneys at 412-995-3000.

Supreme Court favors employees in setting new standard for the filing of retaliation claims against employers

By: Employment Law Team

On June 22, 2006, the United States Supreme Court issued a unanimous decision that greatly affects the landscape of employment law, specifically the retaliation provisions of Title VII of the Civil Rights Act.

The specifics of the case involved a female employee who complained to her supervisor about gender discrimination/harassment. The employer investigated her complaint, but subsequently “reassigned” her to a position, stating that her position was owed to a more-senior employee. While the “reassignment” did not reduce the employee’s pay, hours, or seniority, she still filed a retaliation claim against her employer, for which she was successful at trial. The employer appealed and the case made its way to the Supreme Court.

Prior to this ruling, in a majority of courts, in order for an employer to be liable for retaliating against an employee who reported and/or complained about discrimination (age, gender, race, etc), the employer must have taken action against the employee that affected the employee’s “terms, conditions, or status of employment.” The Supreme Court expressly rejected this majority view and instead adopted the minority standard only held by the Seventh and D.C. Circuit Courts, which states that an employee must only show that a “reasonable employee” would have found the action taken by the employer to be adverse, in that action taken by the employer ?could well dissuade a reasonable employee from protected conduct.?

This decision can have a significant effect on any employer who has an employee who reports or complains of discrimination. The practical effect is that once that employee makes the report/complaint, no action can be taken against him/her that a “reasonable” employee would consider adverse. The Court further stated that it is for the jury to decide whether the employee’s belief was reasonable.

This ruling is sure to create many questions, both for employers and the courts. Please contact Burns White with any questions you may have regarding this or any other employment-related issue.

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