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NC Injury Liens: SEHP update

Here is an update on the NC Teachers and State Employees Health lien:

I met with the folks at the SEHP along with the top brass from the NC Academy of Trial Lawyers two weeks ago.  Our meeting was designed to discuss some of the wrinkles in interpretation of the "new" lien.

LIEN FORMULA

The SEHP agrees that the lien cutting formula is essentially the same as the medical providers lien formula.  You take the settlement, subtract out "reasonable" attorney fees and costs.  Of the net, the SEHP will never take more than 50% of that to fully satisfy their lien.

"REASONABLE" ATTORNEY FEES AND COSTS

The SEHP is working with the assumption that reasonable attorney fees AND costs are 33.3%.  That means that if you want them to subtrect a 40% fee plus a lot of costs in the above formula, they won't do that without you making a special request and justifying why that should be done.  Remember, the statute leaves the definition of "reasonable" entirely in the hands of SEHP.

MEDICAL PROVIDER LIENS

The SEHP takes thew position that the statute says, quite clearly, that their lien takes priority over medical provider liens under NCGS 44-49 and 50.  Thus, if you have a SEHP lien that exceeds 50% of the NET proceeds and you have medical provider liens, the SEHP will be paid their lien (and it will be satsified) but the medical providers will get nothing based upon their formula.  Of course, the medical providers can still attempt to collect from the client, because the medical provider lien is a distribution lien, not a "satisfaction" lien.

I told the SEHP folks that medical providers may disagree. 

MEDICAID LIENS and MEDICARE LIENS

SEHP is "working with" the AG's office to figure out some sort of sharing arrangement when there are Medicaid and SEHP liens.  We were told to "be on the lookout" for some sort of update about that agreement.  The same is true for Medicare.  I don't have any suggestions at the moment for how one would divide up money between the liens, other than to say that Federal Law trumps state law, so I think that Medicaid and Medicare will get there money.

UM/UIM INSURANCE

SEHP agrees that their lien does not apply to UM/UIM coverage because those payments would not be from a "liable third party" as the lien statute requires.  That's good news.

WORKERS COMPENSATION

SEHP agrees that the SEHP lien does not apply to workers compensation settlements.  More good news.

That's the sum and substance of our meeting.  The folks at SEHP were very nice, and understood our concersn and seemed genuinely concerned with the welfare and well being of their policy holders (our clients).  SEHP is balancing the Plan's interests in keeping the plan funded with the plan member's interests in being made whole after an accident.

Stay tuned for updates on Medicare and Medicaid.

Chris Nichols:  Nichols Law Firm

www.NicholsTrialLaw.com 1.800.906.5984

Ahlborn Amicus Brief from ATLA

I've been looking for a copy of the Amicus brief filed by the Center for Constitutional Litigation and ATLA in the Ahlborn case.  Finally, one of my friends sent me a copy.

Click here to view the Ahlborn Amicus Brief.

To see all of the other information about the Ahlborn case, follow this link to the post.

Chris Nichols

Nichols Law Firm

www.NicholsTrialLaw.com 1.800.906.5984

Free Mapping Technology for Smart Phones from Google

For any of you that have a Treo Smart phone (I have a Treo 650), Google now has a really great program you can download for Goggle maps.  I have always accessed the Google Maps or MapQuest by going to the internet function on the phone, but that was slow and you could not really pull up the visual map.


The new software has it's own icon on the Home page, and you can use it without the stylus.  You get the visual map, and can even look at the Satellite view if you want.  In many ways it reminds me of the interface for Google Earth, the sytem being used by TV stations and downloadable here: www.earth.google.com

The new features are free and download in a few seconds from your phone. To download Google Maps for the smart phone, simply go to www.google.com/gmm on your Treo web browser.

To read more about the features go to Treo Central.

Chris Nichols
www.NicholsTrialLaw.com


 

www.NicholsTrialLaw.com 1.800.906.5984

Judicial Election Results in NC

Well, the results of the election are in and the numbers look good.  NC selected moderate, experienced Judges for the Supreme Court and Court of Appeals.

The Raleigh News & Observer reports (as of this posting):

Supreme Court (Chief Justice)
    Sarah Parker 1126541
    Rusty Duke 564619
2761 of 2767 precincts reporting

Court of Appeals (Stephens)
    Donna Stroud 767034
    Linda Stephens * 763043
2761 of 2767 precincts reporting

Supreme Court (Assoc. Justice Martin)
    Mark Martin * 992306
    Rachel Hunter 595026

2761 of 2767 precincts reporting

Supreme Court (Assoc. Justice Timmons-Goodson)
    Patricia Timmons-Goodson * 943645
    Eric Levinson 676569
2761 of 2767 precincts reporting

Supreme Court (Assoc. Justice Wainwright)
    Robin Hudson 798619
    Ann Marie Calabria 778657
2761 of 2767 precincts reporting

Supreme Court (Chief Justice)
    Sarah Parker 1126541
    Rusty Duke 564619
2761 of 2767 precincts reporting

You can read all the election results at the N&O Here.

With the exception of Donna Stroud, all of the experienced appellate Judges were re-elected.  Now the Hudson seat at the Court of Appeals will get a new appointment by Governor Easley.

The one exception to incumbents getting re-elected was the Stephens v. Stroud race.  Donna Stroud, a Republican from Zebulon won the election.  I think the good news is that she has served as a District Court Judge since 2004, and has concentrated on family law during her career.  I always think it is a good thing for a Judge to have actual trial experience and to have worked in a law firm with real clients.  This seems to bring a practical touch to the bench, so I'll be interested to see how her opinions stack up.  It also looks like her partners in her previous firm practiced criminal defense law, so she brings a fairly broad range of experience to the Court.

The Election of Judge Hudson to the Supreme Court may have some interesting implications is the Ezell case, discussed in the Medicaid forum on NC Trial Law Blog, is accepted for a rehearing.  Judge Hudson wrote the Court of Appeals majority opinion in that case that, in my opinion, properly addressed the legal issue.

Thanks to all that voted in this very rainy election.  I stood at my precinct poll in the pouring down rain from 6:00 am until 7:00 pm, with two breaks to go home and change into dry socks and shoes.  It was a miserable day, weather wise.  We set out an empty coffee cup in the morning and it was full by the end of the day.  A 16 ounce coffee cup!! 

Chris Nichols, www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Judicial Elections in NC

SPECIAL: ELECTION ENDORSEMENTS

I like to keep www.NCTrialLAwBlog.com as politics free as possible, but with the upcoming elections in North Carolina, I get emails and requests from my friends asking "who should I vote for?"  Of course, that is always an individual choice, but let's face it, unless you are a lawyer in NC, you probably don't have much information regarding the qualifications of Judges.

Non-Partisan Elections? Sort of..
In theory, the election of Judges in North Carolina is non-partisan.  That means that when you look at your ballot, you won't be seeing any "D"'s or "R"'s next to the names of the candidates.  Whether this is a good or bad idea is a moot point, that's the way it is.  In a perfect world, the party affiliation of a Judge would give you some clue to that person's judicial temperment, but the reality is that in some areas of this state, you can not get elected if you are the best candidate because of the party you happen to be at that time in US politics.

Of course, the political parties in our state, and many of the candidates themselves, make it quite clear where the candidates stand.  One candidate proudly proclaims "Conservative" on his signs.  I personally think that a candidate to a court should not declare their position on an issue before they hear the case.  But that's just me.

Unfortunately, most "average" voters don't have enough information to be able to look beyond party afilliation for their guidance on candidates.

WARNING: Political Tricks Being Played
A lawyer friend of mine went for early voting in Chapel Hill this week.  As he approached the poll, a young woman asked him, "Are you a Democrat?"  He told her he was a Democrat.  She responded by saying, "Good, here's a list of our candidates for the judicial races."  She handed him a list of all of the REPUBLICAN candidates.  The list did not have party affiliation listed.  My friend confronted her deceptive practice and she played dumb and basically ran away.  She came back just in time to get caught by a local reporter for a radio station who covered the story. You can read the story in the News & Observer Here.

Lesson:  unless the paper you are handed actually states the party affiliation, be wary.

(Edit:  Lesson part 2:  This is not to suggest that each party will not have accusations like this leveled against them.  I don't care if that young lady was passing out MY candidate list, it's misleading and wrong.)

My Endorsements
Below you will find my endorsements, which are also the same endorsements as the North Carolina Academy of Trial Lawyers.  My criteria for selection includes the following factors:  experience, judicial temperment, belief in fair compensationion for injuries caused by another's negligence, preservation of individual liberties, preservation of the right to a fair jury trial, and overall balance of the court.

I hope you will read about each candidate and make an informed decision.  I want to point out that Justice Mark Martin is a registered Republican but has cross-party support for his moderate views over 14 years on the bench.  His opponent is a person who ran as a Republican, changed her party, ran as a Democrat, and is completely unqualified in my opinion.  Her website is bordering on the lunatic (or even over the border) and is another good reason to not simply vote on party affiliation alone.

The appellate judicial races are crucial if we are to ensure we have courts that will protect people's rights. Please encourage your family and friends to vote, and remind them to turn the ballot over for judicial races. Also, you may wish to send them this handy judicial voter card, which they can take into the voting area with them. Finally, you can check out the Board of Elections' Nonpartisan Judicial Voter Guide online.

The Academy and I have endorsed the following candidates in the appellate judicial races:

  • Supreme Court Chief Justice:        Sarah Parker*
  • Supreme Court Associate Justice:  Mark Martin*
  • Supreme Court Associate Justice:  Patricia Timmons-Goodson*
  • Supreme Court Associate Justice:  Robin Hudson**
  • Court of Appeals Judge:                Robert (Bob) Hunter*
  • Court of Appeals Judge:                Linda Stephens*
  • *incumbent
  • **current Court of Appeals Judge
  • To view the current NC Supreme Court (with bios), click here.
    To view the current NC Court of Appeals (with bios), click here.

    Remember to Vote, Tuesday, November 7th!

    -Chris Nichols

    If you would like to forward this website to a friend, click on the tag at the bottom of the post that says "permalink" and when the new window opens, copy the website address from your toolbar into an email and send it as a link to your friends and family.  If you want me to send the link to you, just CLICK HERE and send me an email with subject: "RE:  Judge Link" , and I'll email it to you and you can forward it from your own email.

    www.NicholsTrialLaw.com 1.800.906.5984

    How to Identify if a Health Plan Falls Under ERISA: Form 5500 and more

    Who do you have to pay back from a settlement?
    North Carolina is one of a few states which does not allow health plans to seek reimbursement from personal injury settlements.  Our "anti-subrogation rules," which are insurance rules from the NC Department of Insurance, have many exceptions, however.  Medicaid, Medicare, the State Employee Health Plan, and Workers Compensation Insurance are the most common of the exceptions. These folks must be paid back if you get a recovery from your personal injury case.  The last exception is for self-funded health insurance plans which are exempted from state law because the federal law of ERISA pre-empts state laws.

    ERISA is NOT a lien.  It is a contractual right of repayment which obligates the recipient of an employee health plan to repay the plan if a recovery is made from a third party (tort feasor). 

    Stealth Plans or Health Plans?
    It is not always so simple to determine if a Health Plan is actually self-funded.  What's worse, is that some non-self-funded Health Plans claim to be self-funded.  Thankfully, my friend in South Carolina, attorney and blogger Roy Harmon of Health Plan Law.com, has posted an excellent article on the various ways to determine if a health plan falls under ERISA and can claim a right of reimbursement.

    Form 5500:  How do you read this thing?
    Here is an excerpt from Roy's post about determining what a Form 5500 means:

    Often offered as a solution, the inquiring as to the filing of Form 5500’s is a good starting point for determining whether a plan is a self-funded ERISA plan.

    The plan participant (perhaps not the participant’s attorney, according to some cases) is entitled to request the most recent Form 5500 under 29 U.S.C. 1024(b)(4). While you wait for the plan administrator to send it (and you do want to ask the “plan administrator” (not the claims administrator), you can check Freeerisa.com and take a look at what is available there. For more information on plan reporting and disclosure requirements, the DOL has published a good resource in the form of a booklet.

    The Form 5500 will have a section, Box 9, that indicates the plan funding arrangement. If the form says “general assets of the employer”, that suggests a self-funded plan. If it says “insurance”, its suggests a fully insured plan. (Fully insured plans may still be ERISA plans, but the preemptive force of ERISA Section 514 only applies with its full force and effect in the case of self-funded ERISA plans.)

    But evaluation of the Form 5500 is not conclusive.

    Click here to read Roy's ENTIRE post, full of great suggestions.

    Roy has some great articles on his website. He generally covers all of the federal cases which address ERISA law, and does a good job of boiling down some complicated law into understandable tid-bits.  Of course, ERISA law is not exactly cut and dried, no matter how you look at it, so you really have to make your best guess, and when in doubt, ask a colleague.

    -Chris Nichols
    Nichols Law Firm Website

    Continue reading "How to Identify if a Health Plan Falls Under ERISA: Form 5500 and more" »

    www.NicholsTrialLaw.com 1.800.906.5984