The Lien Project - Blog 02

Are you exposing your clients to double liability for medical costs paid by Medicare Advantage Organizations?  


In a now-routine strategy, MAOs demand double reimbursement from the settling liability carrier instead of negotiating with the plaintiff’s attorney.   The settling Plaintiff is thereby exposed to indemnity and hold-harmless claims from the settling liability carrier, in addition to reimbursement and lien claims by the Medicare Advantage Organization. 


In the past year, we developed and successfully deployed intensive strategies for achieving favorable Medicare Advantage reimbursement outcomes.  


Here’s an example of what we’re working on:


Difficult liability case with $135K in claimed Howell past meds [capitated plan that starts with a “K”]. Settlement for $350K and very good result given the facts. Third Party Carrier [TPC] includes Indemnity/HH provision in the Settlement Agreement (SA) along with typical language that Plaintiff is responsible for all CMS liens. Deal is done and money in bank. Recovery agent demands the $135K claiming they are a MAO and are have the CMS super lien. Only when pressed will they agree to a reduction for procurement costs. They refuse to address other substantive compete and partial defenses, such as equitable apportionment, annual out of pocket maximums, lien amount calculation/RV, plan drafting faults, ect. When not paid, they hire counsel who makes a demand on the TPC under the SPA. Pay $135K in 60 days or we sue you under the SPA for double -$270K+Fees + Costs. TPC tenders back to Plaintiff under the SA. Plaintiff’s lawyer has a WTF just happen moment.



The best defense is targeted offensive strikes against the plan, the recovery agent and the TPC. The TPC’s are vulnerable and we have seen them kick in six figures to avoid litigating the issues when the indemnity claim my not be viable. Nothing like obtaining lien reduction by making the third party carrier pay! While this is not always the result, we did just resolve a MAO lien demand for $334K for $25K. – a result we were very pleased with. 


They key is identifying the lien as a MAO early on and working that into your settlement planning.


The next stage in the MAO/SPA roll out is for the MAO’s to start claiming they have the same conditional payment rights concerning FUTURE meds as CMS. CMS is getting ready to role out LMSA regulation and once they do, the MAO’s will follow right behind them.


Questions?

Liens and reimbursement demands can be complicated. Each case/claim presents unique circumstances. As experienced trial lawyers, we can help put the lien issues into context to help you maximize your case valuations and recovery efforts. Don’t hesitate to call us to discuss your case circumstances.

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