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ABC WPLG Channel 10 Weekend News

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Ruling could help providers recover money from Medicare Advantage sequestration cuts

By: Lisa Shencker

A recent decision by a federal judge may help bolster providers’ lawsuits against Medicare Advantage plans over those plans’ decisions to slash reimbursement rates in response to federal budget cuts.

In the case at issue, 11 Florida providers are suing Humana, saying the insurer wrongly cut payments to them in response to the 2013 federal budget cuts known as sequestration. During sequestration, the CMS reduced payments to Medicare Advantage organizations by 2%, and many of those organizations then passed those cuts on to providers in the form of lower payments.

The providers argue that their contracts with the plans prohibit such cuts. A Humana spokesman declined to comment on the case Thursday, but Humana has argued in court documents that, in order to prevail, the providers would have to show that Humana promised a certain reimbursement rate.

Though the case is ongoing, U.S. District Court Judge Ursula Ungaro in Miami decided on Aug. 18 that the matter will move back to state court—a decision that could help the providers in this case and in other cases brought over the same issue.

Had the case remained in federal court, Humana could have raised a number of defenses related to federal regulations, including that, as a federal officer, it should be immune from such suits, said Ken Hartmann, a lawyer for the providers in the case and a partner at KozyakTropin and Throckmorton in Miami.

Humana argued in court documents that when it reduced payments to providers, it was doing so as a federal officer, acting on behalf of federal agencies.

“If a federal officer enters into private contracts as part of its federally mandated duties under a comprehensive and detailed federal regulatory regime, plaintiffs would deny the federal officer access to the federal courts,” Humana said in court documents.

Ungaro, however, rejected that argument in her decision. She wrote that Humana’s payments to providers were governed by its contracts with those providers, not federal laws or programs.

“By giving a ruling up front [that Humana] is not a federal officer, it really takes the wind out of the health plan’s sails,” said Douglas Wolfe, also an attorney for the providers in the case and a partner at Kozyak.

Wolfe said the decision marks the first time a court has made a ruling about whether a Medicare Advantage plan can be considered a federal officer in relation to a sequestration case.

Brian Foley, a partner at Schenck, Price, Smith and King, who was not involved in the case, agreed that the decision to send the Humana case back to state court could help providers in other similar cases.

Not only did Ungaro rule that Humana was not acting as a federal officer, she also affirmed that the CMS did not tell plans how to handle the sequestration cuts, Foley said. In her decision, the judgequoted a 2013 CMS letter to Medicare Advantage organizations that said “whether and how sequestration might affect [a Medicare Advantage Organization’s] payments to its contracted providers are governed by the terms of the contract between the [organization] and the provider.”

“For the first time, we have a federal court saying it’s absolutely governed by the terms of the contract and there’s nothing in sequestration law that requires this be passed on to providers,” said Foley, who is currently handling a similar matter in arbitration.

Andrew Wachler, managing partner of Wachler and Associates, said that although not all courts will be bound by the decision to send the Humana case back to state court, “It still is an opinion that the analysis that can be relied upon by providers and also could help lead to settlements.” Wachler also has been involved in other similar matters in arbitration.

A number of disputes over sequestration cuts are in arbitration. In fact, the majority of such disputes are likely in arbitration because of the contract terms in question, Hartmann said.

At least a handful of similar cases involving various providers and insurers are also working their way through the courts. Most cases have not yet been decided, though a Pennsylvania state court decided in May against Highmark in a similar case.

In that case, Allegheny Common Pleas Court Judge R. Stanton Wettick wrote, “Highmark has been unable to point to any provision within the Provider Agreements that would support its 2% reduction from the amount Highmark is obligated to pay under the Provider Agreements.”

Hartmann and Wolfe noted that more cases concerning the same issue might emerge as providers become aware of the recent verdicts.

“To some extent, the smaller providers and institutions aren’t even necessarily aware they are suffering as a result of these sequester reductions because the manner in which the managed-care company explains the sequester isn’t necessarily transparent,” Hartmann said.

Wolfe said billions of dollars are potentially at stake. In the Humana case, the providers say they’re owed more than $8 million.

“This ruling we’ve gotten really paves the way to help providers bring these cases and pursue that money,” Wolfe said.

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Hollywood Settles Beating Claim for $240,000

Paul Gozaloff, 45, a computer technician, was putting up campaign posters for presidential candidate Rudy Giuliani in Hollywood in 2008 when he went to a traffic stop while trying to find another campaign sign worker. He said he was beaten by several Hollywood police officers without justification and arrested on trumped-up charges of drug possession and obstructing a traffic stop. A judge dismissed the charges, ruling the arrest and search illegal. He claimed head, facial and body bruises and a residual psychiatric injury.

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Health Care Insolvency Is on the Rise: The Treatment of WARN Act Obligations and Preserving Provider Agreements in Bankruptcy

By David A. Samole

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Ocwen, Assurant Deal Objectors Say 9th Circ. Is On Their Side

By Jody Godoy

Objectors to a $140 million deal between homeowners, Ocwen Financial Corp., and Assurant Inc. over allegedly inflated force-placed insurance premiums asked a Florida federal court Thursday to consider a Ninth Circuit ruling pointing to “subtle signs” that class counsel, in that case, skewed a settlement in their own interest. The deal proposed in April would settle allegations by a proposed class that the insurer paid the mortgage servicing company to inflate force-placed insurance premiums.

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Borrowers Seek Final OK For $54M Deal In Nationstar Row

By Kurt Orzeck

Borrowers accusing Nationstar Mortgage LLC of colluding with force-placed insurance providers to make lucrative profits asked a Florida federal judge on Monday to finalize a $54 million settlement of their class action, calling it an “extraordinary” result for the plaintiffs.

Plaintiffs’ motion for final approval of the deal said it would resolve claims by roughly 380,000 borrowers who allegedly had mortgage loans with Nationstar and were overcharged for hazard, flood or wind coverage issued by Assurant Inc. or its subsidiaries between Jan. 1, 2008, and Jan. 30 of this year.

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Miami Ultimate CEO Awards

As founding partner of Kozyak Tropin & Throckmorton and co-chair of the firm’s bankruptcy practice, John W. Kozyak has earned a host of professional accolades.

He has been recognized in every edition of Best Lawyers In America since it was first published in 1983. For the past six years, he has been identified as one of its “Bet-the company” litigators in Florida. Chambers USA has ranked him as one of the top bankruptcy lawyers in Florida in its America’s Leading Lawyers For Business, and in 2011, he was selected as one of the Top 10 lawyers in Florida by Super Lawyers, and named to Florida Trend’s Legal Elite Hall of Fame.

Along with a shelf of other humanitarian and legal service awards, the firm received the Supreme Court Chief Justice’s Law Firm Commendation for providing free legal services, and Kozyak received both the Florida Bar President’s Pro Bono Service Award and the Florida Bar’s G. Kirk Haas Humanitarian Award.

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11th Circ. Told To Nix BofA $228M Force-Placed Insurance Deal

By Emily Field

Two members of a settled class action accusing Bank of America NA of accusing the bank of overcharging homeowners for forceplaced insurance told the Eleventh Circuit on Tuesday that the $228 million deal shouldn’t have been approved because the settlement amount is illusory.

Appellants Michael and Jill Trapasso told the Eleventh Circuit that a Florida federal judge shouldn’t have signed off on the settlement last year and the class counsel’s $16 million fees because there’s no common fund and no minimum payout. The Trapassos say that the $228 million valuation is “fiction,” only a small percentage of class members had filed claims before the deal was approved and there’s no evidence how many of those are valid claims.

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Allegedly abusive mortgage insurance deals lead to class action settlement

By Kenneth R. Harney

Anyone who has taken out a home mortgage knows that one of the borrower’s key responsibilities is to pay hazard insurance premiums on the property and not let the policy lapse.

But are you aware that if you fail to keep the insurance current, or if the premiums aren’t paid from your escrow account, the lender or its mortgage servicer can obtain its own coverage, which may cost you more than the policy you originally chose?

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Expert Opinion Testimony in Florida – Navigating the Mine Field

By John I. Criste, Jr

Co-Author, Expert Opinion Testimony in Florida – Navigating the Mine Field, 2015 Fla. Construction Law Institute (March 2015).