Medicare & Worker’s Comp. Liens (Continued from page 20)
forth in writing the lien ramifica- tions, the future medical or other benefits, alternate sources of money and the proposed resolution. The theme is obviously to avoid wait- ing until the settlement conference or day of trial to first think about the workers’ compensation lien. If done skillfully, the carrier and the lien can be utilized to your benefit. This requires prompt recogni- tion of the lien, early attempts to secure cooperation and a mutual understanding of the goals of all parties to the process: yours, your client’s, and the carrier’s.
Medicare
There was a time in the not so distant past when good lawyering and creative thinking offered some hope from the crush of the Medicare lien. After the 2003 Amendments, these openings, based in part on the “prompt payor” definition, are
essentially closed. There is not much flex- ibility left in dealing with Medicare liens. There are, however, formulaic approaches to reduction of the lien. This piece will address some of the practical aspects of addressing the Medicare lien, both in de- termining whether there is one, and when and how to resolve it. 1. Medicare retains what has been called a “superlien.”
plies to the injured person, their attorney and any beneficiaries of monies received. 42 C.F.R. 411(g).
2. As an attorney representing an in- dividual who has received Medicare benefits, you are placed in an im- mediate conflict situation. Failure to appropriately address the lien can result in your being liable.
3. In practice, when there is expected to be or is payment of medical bills by Medicare, the attorney repre- senting the injured person must recognize the inevitability of repay- ing the lien. Medicare employs a formula based on attorney’s fees and
costs to reduce the amount. The formula is set forth at 42 C.F.R. 411.37.
The lien ap-
4. Diligence requires that the practi- tioner review the proposed lien to ascertain that all of the claimed amounts in the lien are related to the claim. Non-related medical treatment should be excised, but this must be done with Medicare’s knowledge. In addition, the onset of Medicare eligibility must be de- termined because for those individuals receiving Medicare as a result of disability, there is no lien for the first 29 months of eligibil- ity.
5. Medicare can reduce its lien beyond the attorney’s fee/costs formula when: a. The claimant is without fault and recovery would defeat the purpose of the Act; or
b. Waiver would be in the best in- terests of the Medicare program; or
MTLA FAMILY LAW SECTION PRESENTS
How to Navigate Family Law Ex Parte and Emergency Motions Through the Courts A Multi-Jurisdictional View
TeleSeminar Program Monday, April 24, 2006 12:00 PM - 1:30 PM
Dial-In from your telephone at home or office and participate with colleagues in this unique educational teleseminar. Experienced practitioners, combined with Masters and Judges, will discuss how to get to the Court quickly when you really need to! We will attempt to cover every major jurisdiction in the State. This comprehensive teleseminar shall be moderated by MTLA Family Law Section Chair Harry B. Siegel.
MTLA Eagle/Founder Family Law Section Members
PROGRAM RATES Free
$ 25.00
MTLA General Members Non-MTLA Members
$ 35.00 $ 45.00
To register, call MTLA at (410) 539-4336 or visit
www.mdtriallawyers.com 22 Trial Reporter Winter 2006
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