News About Medicare Lawsuit For Recovery of Medical Expenses

By Steven G. Mehta

As you know, I have tried to keep you updated regarding the issues pertaining to Medicare.  Here is a copy of another article addressing a first of its kind lawsuit filed by Medicare against defendants.

The U.S. government’s first-of-its-kind lawsuit against all parties that settled a pollution liability case signals Medicare’s aggressive push to make sure it does not pay medical expenses when others are to be the primary sources of payment, observers say.

The suit filed Dec. 1, 2009, cites Medicare Secondary Payer provisions in federal law that allow Medicare to recover past and future medical expenses from all parties—insured and self-insured—involved in a liability claims award or settlement that includes Medicare-eligible individuals.

With the suit, “CMS basically let the insurance and self-insured world know, “This is an important issue for us (and) if you are resolving a case and you don’t tell us and somehow we are not collecting this money, we are going to come after you,’” said Roy Franco, director of risk management strategies for supermarket chain Safeway Inc. in Pleasanton, Calif.

Mr. Franco also is co-chairman of the steering committee for the Medicare Advocacy Recovery Coalition, a group formed in 2008 to advocate improvements in the Medicare Secondary Payer program.

The case breaks new ground because CMS simultaneously named insurers, settlement beneficiaries and plaintiffs attorneys all in one lawsuit, said John Williams, CEO and president of Bradenton, Fla.-based Gould & Lamb L.L.C., which specializes in complying with Medicare secondary payer and mandatory insurer reporting to CMS.

It serves notice that CMS will seek payments from defendants and plaintiffs in a liability settlement involving those eligible for Medicare, Mr. Williams said.

“What you can read into it is that Medicare is getting a lot more aggressive in their conditional payment rights of recovery and they are not going to pick one side vs. the other,” Mr. Williams said. “A lot of attorneys I talked to thought they were just going to go after the claimants or just go after the insurers. They are going to go after everybody. “

Mr. Franco said it is the first suit to his knowledge in which Medicare has sued insurers contributing to such a settlement.

The lawsuit brought in U.S. District Court for the Northern District of Alabama, caught many observers by surprise, because they assumed CMS would seek reimbursement only for future liability settlements, Mr. Franco said.

But the lawsuit seeks money from a $300 million global settlement reached in 2003 in a case that alleged injuries from exposure to polychlorinated biphenyls manufactured in Alabama.

“What we are seeing is CMS going back quite a few years here,” Mr. Franco said. MARC is seeking federal legislation that would place a three-year statute of limitations on claims brought by the government to recover under the Medicare Secondary Payer law.

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Mel Gibson, Who’s really the A$$h*le?

By Steven G. Mehta

Many times in mediation, the question or issue arises as to whether a party is making an apology because it genuinely feels remorse or whether the party is simply saying it to gain some form of economic advantage.  As you will see, those same apologies, when done wrong can backfire terribly.

This issue has been raised in two different forums in the world recently.  First, the issue has come about with regards to Toyota’s apology to the world.  Indeed, in Japan when parties express regret they are (by culture) required to bow deeply.  Toyota’s C.E.O. has apologized for his company’s massive recall, but questions have risen whether his apology and bow were sufficient and genuine.  See Los Angeles Times article, A Ritualistic Bow From Toyota Chief.

Some say that C.E.O. Toyoda’s bow was not deep enough and was simply a ritualistic act.  Others also comment that a true apology would be used against Toyota in litigation.  Do these issues sound familiar?  They sure do to me.  This is a common theme in mediation. Whether to apologize?  How?  And whether it is genuine?

Another theme common in mediation is the following scene:  A person has committed a wrong several years ago.  Perhaps the person apologized “formally” at the time.  It was, however, unclear as to whether the apology at that time was genuine.  Enter the mediation.  Issues are being raised about the conduct several years ago and its ramifications.   How does the repenting person act.  Well, Mel Gibson gives us a great example of how not to act in that situation.

Here, Mel Gibson is asked about his anti-semitic remarks several years ago.  At first he appears remorseful.  But as you see in the video his conduct now is clearly not that.  There are several non-verbal and in between the message signs.  First, he states that he is the same person as he was then.  Clearly he is not distancing himself from that terrible event.  Second, he laughs at the question that he clearly understands in a nervous laugh when he asks for clarification.  Third, he states he has gotten over this “but clearly you haven’t.”

Further, he then states that he has done the “necessary mea culpas” as if there is a certain amount of apologies that can be made and then all is good.  This comment alone reflects his lack of remorse.  One of the things about violating people’s trust and then giving an apology, you cannot simply act as if the apology is ritualistic.  Take the same action and put it into other violations of trust.  For example, “Honey, I know I cheated on you several years ago, but I have said my necessary apologies.  You shouldn’t feel hurt today.”  His comment appears to reflect his true belief that he is not in fact sorry for his actions and that the apologies were simply formalities required to move on and keep selling movies.

Mel’s next action is also telling.  He picks up the cup of coffee and holds it in between himself and the camera as if to distance himself.  (How many times in T.V. interviews for movie promotions do you see someone drinking coffee while on camera?  Never).  Then, he turns away, and raises his thumb in a “yeah, yeah, whatever,” manner.

Then, the piece de resistance is Mel’s comment at the end.

Mel Gibson appears to the classic example of lack of remorse being shown for his indiscretions.  In mediation, many times a genuine apology can make the difference.  However, take Mel Gibson as an example of what not to do.

By the way, here is another interview with Mel Gibson by another reporter.  Does he appear remorseful to you?

Immigration, Sociology, and the Quest for Justice

By Steven G. Mehta

Recently there has been a lot of controversy over illegal and legal immigration.  Although come to think of it, the controversy is not new, nor is it unique to the United States.  Most countries have significant controversy over immigration.  In addition, there are very heated feelings about immigration; and then there are equally heated feelings about the people that oppose such immigration.  All in all immigration is an enduring topic that affects all aspects of our lives.  Many times in mediation the issue of immigration status comes up and its effect on the outcome of the case. 

I have previously written about studies that show that juries are likely to not empathize with people from other cultural backgrounds.  (See my prior post People’s Biases Towards Other’s Pain Revealed in New Study).  But I would also like to address some of the more deep seated reasons some of these biases exist.  Therefore, I have researched some literature on this topic and thought I would share it with you.

One study that was presented to the American Socialogical Association addressed the issue of immigration in the context of American values of egalitarianism and the protestant work ethic (PWE).  That study concluded that Americans have historically held ambivalent attitudes toward immigrants. While they recognize that immigration is an inextricable part of the American national identity, most Americans perceive immigration as inherently threatening and, as a result, maintain various negative stereotypes about immigrants. Modern theories of prejudice suggest that the sympathy and antipathy that Americans express toward immigrants are due to two strong, but conflicting values.

On the one hand, Americans value egalitarianism, characterized by social equality, social justice, and concern for others in need. On the other hand, Americans also value the Protestant Work Ethic (PWE), an individualistic belief in hard work, self-denial, and individual achievement. The study tested the relationship between egalitarianism, PWE, and attitudes toward immigrants. The study found that that both egalitarianism and PWE  independently predicted attitudes toward immigrants, with egalitarianism associated with positive attitudes toward immigrants and PWE associated with negative attitudes. However, PWE predicted attitudes only toward ethnic groups stereotypically perceived as violating the PWE, but it did not predict attitudes toward groups thought to uphold the PWE.  Finally, the study found that close contact between the subjects and immigrants was associated with positive attitudes toward immigrants, whereas impersonal contact was not predictive of attitudes.

Matsuo, H. and McIntyre, K. , 2005-08-12 “Ambivalent Prejudice toward Immigrants: The Role of Social Contact and Ethnic Origin” Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA Online <PDF>. 2009-05-25 from http://www.allacademic.com/meta/p20113_index.html

Other researchers have discussed the fact that some of the bias against immigrants is based upon inherent biases against people who we perceive to be in a different social group from our own – the so-called ‘out group bias’ – together with a similar aversion to people who are members of a social minority. Migrants usually fit both these descriptions.

Now Mark Rubin and colleagues have another, even more elemental reason for prejudice against migrants — ‘cognitive fluency’. People generally favor things that they find easy to process, as demonstrated, for example, by their preference for investing in companies with easy-to-pronounce names.  Rubin and his colleagues believe that there’s something cognitively awkward when it comes to considering migrants, and this mental difficulty biases us against them. ‘An Algerian who has moved to the United States would be more difficult to process than an Algerian who is living in Algeria,’ they wrote.

The researchers recruited hundreds of students to perform various thought experiments. The students imagined a group of people in a room and that this first group was divided arbitrarily into two smaller groups, A and B, with a minority of each group then sent to the other group. The group swappers were the ‘migrants’. The researchers balanced out the effects of out-group and minority bias by asking the participants to imagine they were themselves either in the migrating group, control group, or not involved. They next asked the students to rate the character of a typical control group member (one who stayed in his or her original group) and a typical migrant (who’d swapped groups), and then they asked the students to rate how easy they’d found it to think about members of the different groups.

Interestingly, the students rated migrating group members more negatively than control group members and this was partly because they’d found it more difficult to think about the migrants compared with the control members. A second study showed that group members who were excluded from their original group, rather than swapped to another group, were also rated negatively and described as awkward to think about.

The researchers said their finding showed prejudice against migrants can partly be explained by the cognitive awkwardness of thinking about a person who lives in one place but hails from another. 

Rubin, M., Paolini, S., & Crisp, R. (2010). A processing fluency explanation of bias against migrants. Journal of Experimental Social Psychology, 46 (1), 21-28 DOI: 10.1016/j.jesp.2009.09.006

http://bps-research-digest.blogspot.com

These studies have some direct application to the mediation and litigation world.  First, the ethnic background of a person is usually taken into consideration when considering the evaluation of the value of the case – despite the fact that in modern society it shouldn’t be so.  The reality is that people do have biases; and as these studies suggest, they are deep seated for many reasons.  The makeup of the jury is often discussed extensively as it applies to the plaintiff or defendant.  People often say that they don’t think the jury will connect with an immigrant from [name the country.]

These studies start to reflect some of the issues that are underlying these ever present biases.  As noted above, many people are fighting for the protestant work ethic.  You hear of statements that the immigrants are taking all the welfare money, using the services, and forcing hospitals to close.  These complaints are directly correlated with the PWE.  This issue would be an important area to voir dire in front of a jury, especially when you have an immigrant party in a jurisdiction that has few immigrants or when less immigrants will make the jury pool.

Another consideration is to try to change the person’s focus towards egalitarianism and trying to get people to consider the immigrant as part of the greater social order or part of the in group.  In addition, it might be helpful as a litigator to try to develop facts and information that demonstrate that your particular client is trying to integrate into the greater society by learning the language, paying taxes, working hard, not using public assistance, etc.

As a mediator, this topic could be an important area of discussion.  Understanding the reasons for a particular bias is the first step in being able to overcome that bias.

This one time in Band Camp, I Learned to Empathize

By Steven G. Mehta

In the movie American Pie, there is a character named Alison who always said the phrase, “one time in band camp….”  Everytime she said the phrase, she would have this whimsical lilt to her voice. Initially, the main characters ignored her (partially because of her “annoying” voice), but eventually in the series it turned out she was a very empathetic person who helped the main characters in their endeavors.  Well it turns out that Alison’s linguistic inflection have been found to scientifically make her more empathetic.

A new study has found that being able to change intonation in speech may be a sign of superior empathy?  The new study finds that people use the same brain regions to produce and understand intonation in speech.  The study also suggests that people learn by imitating through so-called mirror neurons. In other words, people learn how to speak by mirroring others’ prosody — the music, rhythm, and intonation of speech.

The study also finds interestingly that the higher a person scores on standard tests of empathy, the more activity they have in their prosody-producing areas of the brain.  So increased empathic ability is linked to the ability to perceive prosody as well as activity in these motor regions, said authors Lisa Aziz-Zadeh and Tong Sheng of USC, and Anahita Gheytanchi of the Pacific Graduate School of Psychology.

“Prosody is one of the main ways that we communicate with each other.” “If you have a pet, they basically are understanding your prosody,” Aziz-Zadeh said.

Studying prosody is actually looking at the message that is being sent from the tones, intonation, and rhythm of the words.  Studies have shown clearly that a huge percentage of communication is in the form of understanding prosody.

Based on this study, it is not clear whether empathy brings about prosodic activity or whether frequent use of prosody can somehow help to develop empathy.

However, the ability to understand communications non-verbally is an important skill in being able to empathize. My suspicions are that a person who can understand more non-verbally or through prosody will be increasing their ability to be empathetic. In other areas of communication, it has been found that mirroring can increase the ability to be liked.  There appears to be no reason why mirroring of the voice wouldn’t also create a reaction in the person who is mirroring.  More research on this will certainly be enlightening.

Journal Reference:

Lisa Aziz-Zadeh, Tong Sheng, Anahita Gheytanchi. Common Premotor Regions for the Perception and Production of Prosody and Correlations with Empathy and Prosodic Ability. PLoS ONE, 2010; 5 (1): e8759 DOI: 10.1371/journal.pone.0008759