Summary of Healthcare Lien Rights

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Medicare Part A and B – a/k/a Original Medicare
What is it?	Traditional Medicare for inpatient (Part A) and outpatient (Part B) care.
Valid Lien?	Yes, but only for related benefits. If future related treatment is likely, you also must consider Medicare’s interests.
Should I notify?	Yes, whenever client is Medicare eligible. If you don’t, you, your client(s), defendant(s) and/or insurer can be held liable.  Contact Center for Medicare Services (CMS) to request summary.
Any legal arguments to reduce lien?	Yes, by costs of procurement, calculated as .  Also can request hardship waiver or compromise from CMS.
Medicare Part C – a/k/a Medicare Advantage Plans (MAP)
What is it?	Subsidized HMO program for those eligible for Medicare that is offered in lieu of Parts A, B & D.
Valid Lien?	Probably although unsettled in U.S. 2nd Circuit. Be aware of 42 C.F.R. §422.108(f) where CMS declares broad rights.
Should I notify?	Maybe.  You should consider: a) Defendants/insurers will likely require hold harmless language in release and may have liability for double damages to the MAP ipso facto, so may your client.  See, e.g., In re Avandia, 685 F.3d 353 (3rd Cir. 2012); Aetna v. Guerrera, No. 3:17-CV-621 (US Dist. Ct. CT) (March 13, 2018); b) Obtaining MAP policy and confirm that it contains subrogation rights (if not, stronger argument there is no lien).
Any legal arguments to reduce lien?	Yes.  At a minimum they must reduce by same procurement cost formula for Medicare A & B above.   Also, can negotiate based on uncertainty in existing law.  See e.g., Primax v. Yarmosh, No. 3:03-CV-1931 (AWT) (Sept. 7, 2006)
Medicare Part D – a/k/a Medicare Prescription Drug Plans (PDP)
What is it?	Extra prescription coverage for Medicare A & B.
Valid Lien?	Probably, although just like Part C, remains unsettled in U.S. Second Circuit.
Should I notify?	Maybe.  See same considerations as for Medicare Part C above.
Any legal arguments to reduce lien?	Yes.  Same as Medicare Part C. Courts have generally applied same rights for Part C insurers to Part D Insurers.
Medicaid – a/k/a Husky A, C and D
What is it?	Need-based federally funded insurance administered by the State.
Valid Lien?	Yes, but only for related benefits paid.
Should I notify?	No, unless client tells you to.  However, client is likely required to pursuant to agreement to obtain benefits and should be advised of his/her responsibilities if not notifying State.
Any legal arguments to reduce lien?	Possibly.  Where there is limited coverage, liability challenges or other reasons plaintiff will not be fully compensated, Medicaid must reduce its lien by same percentage as plaintiff.  See Arkansas v. Ahlborn, 547 U.S. 268 (2006) and its progeny.
ERISA Self-Funded Insurance Plans and Labor Union Self-Funded Plans
What is it?	Employer funded plans and Union funded plans, which may be administered by others, including health insurance companies.
Valid Lien?	Yes, if plan language provides for lien rights against specific proceeds and truly self-funded (review plan and IRS Form 5500).
Should I notify?	No, unless informed client wants you to.  However, client is likely required to notify pursuant to plan documents and failing to address contractual obligations may impact client’s rights including future benefits.
Any legal arguments to reduce lien?	Sometimes.  Demand full plan and summary plan documents.  Plan language must: a) identify a specific source (i.e. settlement funds) for recovery; b) specifically contain language that includes right to assert lien for particular cause of action (e.g., UM/UIM claim); and c) specifically contract away all equitable remedies like make whole or common fund doctrines.
ERISA Private Plans, Obama Care/ACA Plans, and all other Private Plans except Municipal Self-Funded Plans
What is it?	All individually purchased private insurance and employer sponsored health plans, other than municipal self-funded plans.
Valid Lien?	No.  Prohibited by Connecticut’s anti-subrogation statute, C.G.S. §52-225c.
Should I notify?	No. There is no valid lien in Connecticut.
Any legal arguments to reduce lien?	There is no valid lien in Connecticut.

Important: If there is a valid lien, there should be no collateral source post-trial reduction pursuant to Marciano v. Jimenez, 324 Conn. 70 (2016), and defendant will be liable for entire medical bills, even where lienholder plays less than full amount.

Will Personal Injury Cases Be Affected by the Coronavirus Outbreak?

Recent news reports claim that coronavirus cases are resurging across the nation. Despite those reports, Connecticut remains on track to reopen. Along with businesses, many courts are also reopening across the state. This is good news for many individuals who have pending personal injury lawsuits. However, COVID-19 has taken a toll that could continue to affect cases in the future.

How Will Coronavirus Affect Personal Injury Lawsuits?

In May, the National Safety Council (NSC) released a startling report. Since the beginning of the pandemic, motor vehicle fatality rates jumped 14 percent. This is surprising considering traffic has dropped due to stay-at-home orders.

Safety officials believe this increase is due to an increase in reckless driving. More people are speeding, failing to stay in their lane and driving while distracted. This has already led to more severe accidents despite fewer drivers being out on the road. With states reopening and traffic increasing, pandemic driving habits could lead to even more crashes. This means more personal injury claims could be heading to court soon.

When Should I File a Claim for the Injury I Suffered During the Outbreak?

If you suffered an injury during the pandemic, filing a lawsuit may not be on your mind. With reports of offices and courts closing, you may have decided to delay your claim. This is a mistake.

The longer you wait to gather evidence, the harder it will be to collect. This is why waiting is never a good option when it comes to personal injury lawsuits. Also, the statute of limitations on filing a personal injury claim has not changed. That means you need to talk to an attorney to ensure your claim is ready to go. An attorney can help you gather evidence and ensure you do not miss important deadlines due to the current situation.

Is It Okay to See My Doctor During the Coronavirus Pandemic?

Did you visit the doctor after your accident? Did you avoid the doctor’s office due to COVID-19? These issues are also important to your case. Medical records help prove that you suffered damages due to another party’s negligence. If you cannot prove that you sought medical attention for your injuries, it may be harder to prove your claim.

If the doctor recommends delaying your treatment due to coronavirus, follow those instructions. However, do not neglect the doctor’s orders due to the pandemic. Voice your concerns with your physician and work with him or her to get the medical treatment you need.

Do You Still Have More Questions?

These unprecedented times are making it difficult to navigate the legal system. That is why our Hartford personal injury law firm is ready to answer your questions. You can reach us at (860) 549-8440 or by filling out our online contact form.