Under federal law, Medicare has a lien for "conditional payments" that it makes for your medical care. If you recover $ in your malpractice case, the federal government will seek payment for its lien. Medicare is administered by the Centers for Medicare and Medicaid Services ("CMS") and once notified of a lawsuit by the defendants, CMS will send a "conditional payment" letter with an itemized list of payments that were made by Medicare and amount of its lien.
The federal government can recover double and treble damages against those who don't pay a Medicare lien and has a right of recovery against you, your lawyer, the defendants, the defendants' insurance companies and even the defendants' lawyers--this is why a Medicare lien is known as a "super lien". It's a bitter pill to swallow when you learn that a Medicare lien can take a big chunk out of your settlement.
There are 3 steps that you can take--before your case settles--to defeat a Medicare lien. WARNING! You can't wait until the completion of your lawsuit to defeat a Medicare lien. These 3 steps must be taken early in your lawsuit; otherwise, it will be virtually impossible to defeat a Medicare lien.
Step #1: Do Not Make a Claim for Medical Expenses in Your Lawsuit
In the pleadings of your lawsuit (i.e., responses to interrogatories or in New York, a bill of particulars), you should specifically state that "the plaintiff is not seeking reimbursement for medical expenses". This is the most important step!
If you are not seeking medical expenses in your lawsuit, Medicare cannot recover its lien from you. The United States Court of Appeals held in Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010) that Medicare is precluded from recovering for payments made to plaintiffs where the plaintiffs did not claim any medical expenses.
Step #2: Remind Medicare that You Are Not Seeking Medical Expenses
When you receive "conditional payment" letters from the CMS, remind them with letters that you are not seeking medical expenses in your lawsuit. Your letter should remind Medicare that you will not be protecting their right of recovery and if they wish to bring their own claim, they have rights of intervention, joinder and subrogation. Medicare has the same right to sue the tortfeasor as you and if they do nothing, they can't blame you.
By responding to the "conditional payment" letters sent by CMS, you ensure that Medicare is on notice that they cannot expect to recover their lien from you. For good measure, enclose copies of your pleadings in your letters to CMS to verify that you specifically waived medical expenses.
Step #3: Serve a Motion for an Allocation Order
When your case settles, make a motion for a court Order allocating damages for non-medical expenses. Serve a copy of the motion upon the U.S. Department of Health and Human Services and provide the Court with the pleadings where you waived a claim for medical expenses. Medicare must honor a court Order allocating the settlement to non-medical expenses.
We Can Help You
If you take these 3 steps, you can defeat a Medicare lien and the government won't get any of your settlement. If you have questions or want a copy of our motion for an allocation order, you can call us at 845-802-0047 or send an email to [email protected]