- June 7th, 2013
Changes are forthcoming in the law for Medicare Set-Asides (MSAs) in liability cases. Just what those changes are have not been determined as of yet.
Recently, Advanced Notice of Proposed Rulemaking has been promulgated by CMS for public comment. There are seven (7) proposed options as to how Medicare beneficiaries and their attorneys can meet their obligations to protect Medicare's interest when future medical care is claimed or the settlement, judgment, award, or other payment releases (or has the effect of releasing) claims for future medical care.
Options "1" through "4" apply to both Medicare beneficiaries and those with the "reasonable expectation" of becoming a Medicare beneficiary. Options "5" through "7" apply only to Medicare beneficiaries.
- January 3rd, 2013
In a reversal of arguments as to the enforceability of claims for reimbursement of Medicare Advantage Plans, on December 26, 2012 [argued September 21, 2012] the New York State Appellate Division, Second Judicial Department has reversed the lower court's decision in the appeal of the matter of the Kings County Supreme Court decision of Trezza v. Trezza, 32 Misc 3d 1209[A], 2011 NY Slip Op 51237[U] (Sup Ct, Kings County).
The Second Department held that: "General Obligations Law §5-335, insofar as applied to Medicare Advantage organizations under Part C, is preempted by federal law since it would impermissibly constrain contractual reimbursement rights authorized under the "Organization as secondary payer" provisions of the Medicare Act."
- August 7th, 2010
Many attorneys and agencies have interpreted the U.S. Supreme Court's decision in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268,126 S.Ct. 1752 (2006), to mean that, Social Services agencies may be entitled to a lien on only that portion of personal injury litigation proceeds that reasonably represents the past medical portion of the award or settlement. In fact, the New York State Office of Medicaid Management published a memorandum dated September 14, 2006, which has confirmed that limitation, as applied in New York Cases.Since Ahlborn was decided, some trial courts have held allocation hearings to determine the medical portion of a recovery, so that the Medicaid 'lien' could be computed.
Recently, in Homan v. County of Cattaraugus Department of Social Service, 74 A.D, 3d, 1754, 2010 WL2332742 (N.Y.A.D. 4th Dept.), New York's Appellate Division, Fourth Department, rejected the theory that one could avoid a Medicaid lien by settling for "pain and suffering" only, and sent the case back to the trial court for such an allocation.