Take action today to defeat the Medicare liens in your personal injury case

Under 42 C.F.R. section 411.24, the federal government can impose double damages, plus interest, if you fail to pay a Medicare lien from the proceeds of a personal injury settlement.  If the Medicare lien is $50,000, you and your client are personally liable for more than $100,000 if you do not pay the lien.  Thus, it is imperative that you treat Medicare liens (and any other lien) very seriously from the outset of your representation.

Most personal injury attorneys wait until the verge of trial before contacting the Medicare Coordinator of Benefits contractor about the potential Medicare lien; the Medicare Secondary Payor (MSP) program is operated by the Medicare Coordinator of Benefits Contractor (COBC).  The problem with this approach is that the MCOB responds very slowly to requests for lien amounts (i.e., as much as 65 days for a response for a lien amount) and even slower to a response to reduce or limit the lien to medical expenses related to the alleged negligence.  This is a no-win situation for plaintiffs' attorneys who must have an exact lien figure before negotiating a settlement. 

The best approach is to commence the COBC process upon the initiation of the lawsuit in order to ensure that the Medicare lien is resolved months before you reach the trial.  This process may take months so it is better to begin the process as early as possible.

Since the federal government has a right of subrogation and may collect the amount of the lien directly from the defendant, the defendant's lawyer or the defendant's insurer (42 C.F.R. section 411.24), the defendant likely will not agree to release the full amount of the settlement proceeds to you unless you have written confirmation from the Medicare Coordinator of Benefits stating the final lien amount.  If you do not have a letter from Medicare stating the final lien amount, your settlement may be delayed by months pending confirmation of a final lien from Medicare.

The best approach for you and your clients is to contact Medicare early in the lawsuit in those cases where you know that Medicare has paid some of the medical expenses. You have the right to request that Medicare provide you with an itemized list of every payment made by Medicare, and you should determine whether each payment relates to the personal injuries sustained by your client arising from the defendant's negligence.  Once you reach an agreement with Medicare as to the payments that were related to the personal injuries claimed in the lawsuit, you can reduce the lien further on account of the statutory one-third reduction of the lien for legal costs and an additional reduction for Medicare's proportionate share of the litigation expenses.

ACT AS EARLY AS POSSIBLE to determine the final lien amount in cases involving payments by Medicare and/or Medicaid.