PART III MEDICAID LIEN RECOVERY. 1) From the estate of the Medicaid recipient.

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1 PART III MEDICAID LIEN RECOVERY 1. Basics: 1) For Medicaid benefits that are correctly paid, there are two major instances in which Medicaid may seek to impose and recover liens: 1) From the estate of the Medicaid recipient. 2) From the Medicaid applicant/recipient in the form of an accident lien. 2) OBRA 1993 mandates that states pursue Medicaid liens and there are federal sanctions against states for the failure to pursue such claims. 3) Medicaid benefits incorrectly paid - when an individual provides false information which the agency relies upon to approve and pay out Medicaid benefits. 2. Estate Liens: 1) Fraud punishable by both criminal and civil penalties. 2) Usually, these are benefits that are paid when a recipient is awaiting a determination from an administrative hearing (i.e., a fair hearing) on ths issue of whether Medicaid has the right to discontinue or modify the benefits of a Medicaid recipient. The time between the notice of discontinuance and the issuance of the fair hearing decision represents the time period within which benefits would have been incorrectly paid. 3) There are no exceptions whereby Medicaid is prohibited from recovering improperly paid Medicaid benefits. 1) The most common form of recovery by Medicaid. 2) Age Limitation - the Medicaid recipient must have been at least 55 or older at the time he or she was receiving benefits for Medicaid to have a recovery claim. If the Medicaid recipient received Medicaid from age 40 through age 57, Medicaid can only recover for the time that benefits were paid between ages 55 and 57. 1

2 3) 10 Year Rule - Benefits are recoverable only if they have been paid within 10 years of the individual s death. 1) If a Medicaid recipient had Medicaid paid on his behalf from age 66 through age 82, Medicaid could only recover benefits paid from ages 72 through 82. 4) Surviving Spouse Limitation - no lien may be placed against the estate of a Medicaid recipient if he or she is survived by a spouse. 1) The lien is held in abeyance. 2) Upon the death of the surviving spouse, a lien can be placed against the estate of the surviving spouse for benefits paid on behalf of the first spouse to die (the Medicaid spouse), as long as those benefits were paid within 10 years of the date of the death of the surviving spouse. 3) If the well spouse dies while the spouse on Medicaid is alive and is receiving Medicaid benefits, Medicaid may place a lien against the estate of the well spouse. 5) Minor, Blind or Disabled Child Exception - no Medicaid estate claim if the recipient is survived by a minor, blind or disabled child. A) No age or residence limitation and the child can be receiving Medicaid as well. 6) Estate in New York is defined as assets that pass through the probate and intestacy rules only. 7) Medicaid has preferred creditor status - DSS s lien must be satisfied before other creditor s claims and before any bequests or distributions of property from the deceased Medicaid recipient s estate can be made. 8) Statute of Limitations for DSS to file the claim against the estate of the deceased Medicaid applicant is 6 years. 9) Although a creditor has seven (7) months to file a claim against the estate, this rule does not operate as a statute of limitations. Instead, it is the time period for which a fiduciary of the estate of the deceased Medicaid recipient must wait before he or she can distribute the estate without incurring any personal liability. 2

3 10) Undue hardship 11) Negotiation of Estate Claims: 1) Medicaid deals with negotiation on a case by case basis. 2) Eliminate the existence of all exceptions to Medicaid s right to recover against an estate. 3. Liens Against Real Property: 1) Home is exempt: 1) Medicaid recipient, his or her spouse or a minor, blind or disabled child of the Medicaid applicant resides in the home. 2) The Medicaid applicant/recipient executes an intent to return home. 1) May be challenged and reversed by a fair hearing. 2) DSS may then place lien against the house only for the period that it is determined that the home lost its exempt status. 2) No lien may be placed against home if spouse, blind, minor or disabled child live in the home as well as a sibling of the Medicaid recipient who was present in the home with the Medicaid recipient up to 1 year prior to the institutionalization of the Medicaid recipient. 3) Lien voided if the Medicaid recipient returns home. 4. Accident Liens: 1) Legal Basis - SSL section 104 and 104-b 1) Federal law requires Medicaid recipients cooperate in identifying any third party who may be liable to pay for care and services to maintain Medicaid s status as the payor of last resort. 2) Assignment - Medicaid applicants must assign to DSS the right to seek reimbursement from any third party as a condition to being able to receive Medicaid benefits. SSL 366 (4)(h)(1). 3) Subrogation - DSS is also subrogated to any rights that a Medicaid recipient may have to third party reimbursement. SSL 367-a(2)(b). 3

4 4) Result: through assignment and subrogation, DSS obtains all of the Medicaid recipient s rights against a third party to recover for medical expenses, including the actual ability to pursue those claims on its own. 1) The Medicaid lien attaches to the third party tortfeasor and, thus, this does not violate the general statutory prohibition of imposing a lien against a Medicaid recipient s property prior to his death. 5) SSL 104 provides DSS with the authority to sue a third party tortfeasor. SSL 104-b was later enacted to authorize the DSS to instead merely place a lien against personal injury or medical malpractice lawsuits brought by the Medicaid recipient against the responsible third party in lieu of Medicaid bringing the actual lawsuit itself against such third party. 1) Once the statutory notice and filing requirements are met, the lien attaches to the verdict, judgment, award or settlement. SSL section 104-b (2). 6) Policy - as is set forth above, federal law requires that states pursue lien recovery. 1) If the Medicaid recipient has third party coverage that is available to provide reimbursement for personal injuryrelated medical services, DSS is responsible to seek coverage and/or reimbursement from these sources. 7) Exceptions: 1) Nursing Home - no recovery can be made during the lifetime of the recipient if the related injury results in an action against a nursing home. Public Health Law Section 2801-d(5). The statute provides for compensatory damages for the nursing home resident if the facility deprived the resident of any right or benefit created for the well-being of the patient by the terms of any contract, statute, code... Any funds recovered are not required to be used toward reimbursement nor will they be counted as available assets in determining the Medicaid recipient s ongoing Medicaid eligibility. Upon death, the funds are recoverable from the estate of the deceased Medicaid recipient. If there already exists a separate 4

5 private right of action for negligence, then this statute may not be invoked. Goldberg v. Plaza Nursing Home Comp., Inc., 635 N.Y.S. 2d. 841 (4 th Dep t 1995). 2) School-based Medical Care and Services - no lien can be imposed or a recovery made for services which the child was to receive under the Federal Individuals with Disabilities Act as part of a free and appropriate education. Hannah v. New York City Housing Authority, N.Y.L.J., June 26, 2001, page 20, col. 2 to 4 (Sup. Ct. Kings Co.) 1) Examples are transportation, speech-language pathology, psychological services, physical and occupational therapy, recreation, social work services, counseling and educational and diagnostic medical services. 3) No liens on claims or awards pursuant to the Worker s Compensation Law or the Volunteer Firemen s Benefit Law are allowed. Green v. Blum, 80 A.D. 2d. 667 (3 rd Dep t 1981) 2) Procedural Requirements: 1) Attempt to be made by DSS to ascertain whether the defendant in the lawsuit is insured for liability. 2) Written notice of the lien must be prepared which requires: 1) name and address of the injured recipient; 2) date and place of the accident; 3) identity of the person, firm or corporation alleged to be liable for such injuries; 4) brief statement of the nature of the lien, which should set forth: 1) that lien claimed under SSL section 104-b; 2) amount of the Medicaid claim; 3) that DSS is entitled to be paid before the injured recipient pursuant to SSL sections 366(4)(h)(1) and 367-a (2)(b). 5

6 5) The amount initially specified as being owed does not need to be exact; 6) DSS will have an opportunity to serve an amended notice of lien later, which reflects the total amount of the Medicaid claim; 7) Must be served by registered mail prior to payment being made to the injured recipient upon the: 1) the liable third party; 2) the third party s attorney, if known; 3) the insurance carrier ( a copy of the notice of lien must be mailed to the insurance carrier at least 20 days before the date that the insurance carrier makes a payment to the injured recipient). 8) Must be served by regular mail upon the: 1) the recipient; 2) the recipient s attorney, if known. 9) Must be filed in the county clerk s office in the county where the DSS s has an office. 10) liable third party of the insurance carrier is required to notify DSS pursuant to SSL section 104-b by certified or registered mail of the proposed amount and the date of payment of the personal injury claim at least 10 days prior to making such payment. 1) Within 5 working days from the receipt of the notice from the third party or insurance carrier, DSS may serve and file an amended notice of lien by certified or registered mail. 3) Proceeds from the award or settlement available to satisfy the lien: 1) The lien must be satisfied before the funds may be transferred to a 6

7 special needs trust for the benefit of a Medicaid recipient. Cricchio v. Pennisi, 90 NY 2d. 296 (1997) 1) The lower court ruled that due to the recent sweeping changes in the special needs trust legislation under OBRA 93, a Medicaid lien did not have to be satisfied at the time of the funding of the special needs trust, since Medicaid had the right to recover upon the death of the beneficiary of the Trust. 2) Court of Appeals reversed. It stated that the lower court failed to understand the distinction between the assets of the responsible third party and the assets of the Medicaid applicant/recipient. 3) Under SSL section 104(3), it is correct that DSS cannot recover medical expenditures from a special need trust that has already been established and funded. Here, the attempt to recover is made before the special needs trust is funded and the funds to be placed in the trust are the assets of the third party against whom the Medicaid recipient has assigned the right to DSS to pursue. 1) The right of DSS to recover from a responsible third party is not derived from SSL 104, but rather from the assignment and subrogation provisions found under 42 USC 1396a and 1396k and SSL 366 (4)(h)(1) and SSL 367-a(2)(b). 2) ALL of the proceeds of a personal injury award or settlement are available to satisfy a section 104-b lien and not merely the portion intended to compensate the Medicaid recipient for past medical services. Calvanese v. Calvanese, 93 NY 2d. 111 (1999). 1) In Calvanese, there was a class of plaintiffs who had received awards for personal injuries in the form of pain and suffering. The lower court found that DSS was limited in its recovery of the amount of the awards that were allocated to past medical expenses. 2) In Calvanese, the Court of Appeals ruled that as a condition to the Medicaid recipient to secure Medicaid benefits, he had to assign ANY benefits to DSS that are available from a responsible third party for care or other medical services 7

8 available to the Medicaid recipient. SSL 366(4)(h)(1). 3) Once DSS has paid benefits on behalf of the Medicaid recipient, DSS is subrogated to the extent of any expenditures it has made to ANY rights that the Medicaid applicant may have against any third parties. SSL 367-a (2)(b). The award proceeds are the property of the third party tort-feasor and the lien on the settlement attaches against the third party s assets. 4) Neither the courts nor the Medicaid recipients acting along with the liable third parties may limit the amount of the Medicaid recovery by strategically allocating settlements to specific categories of damages. 5) In a joint case, In re Callahan, the attorneys fee and the lien were more than the entire settlement and the plaintiff received no award in that case. 3) Minors - SSL 104(2) limit of the amount of assistance that is recoverable from a minor to amounts in excess of his or her reasonable requirements did not apply to Medicaid recoveries. Gold v. United Health Services Hospitals, Inc., 95 NY 2d. 683 (2001) 1) Gold involved two infants, one that had suffered a lead paint injury and the other a brain injury from medical malpractice. 2) The plaintiffs both desired to place the maximum amount of the proceeds into special needs trusts. 3) The plaintiffs both relied on Baker v. Sterling, 39 N.Y. 2d. 397 (1976) which held that SSL section 104(1), being the general right of DSS to recoup Medicaid paid on behalf of a recipient from an award or settlement, was limited by SSL section 104(2) in the event that the plaintiff was under the age of 21. 1) SSL section 104(2) provides that a recovery from an infant plaintiff for assistance granted to him or her is barred unless at the time that the assistance was granted the person possessed money and property in excess of his reasonable requirements, taking into account the minor s maintenance, education, medical care and any other applicable factors. 8

9 2) The Court in Baker found that the proceeds received for the infant s personal injuries were not money or property in excess of his reasonable requirements, but that the recovery for the past medical expenses was not barred by SSL section 104(2). 4) As such, in Gold, the plaintiff infants argued that the finding in Baker v. Sterling as to any proceeds that were awarded beyond compensation for past medical expenses should be capped by virtue of SSL section 104(2). 5) The Court disagreed and held that SSL 104(2) does not limit the amount that DSS may recoup from the settlement proceeds of an infant s personal injury action where the infant has received Medicaid benefits since the right to recover from responsible third parties is not derived from SSL section 104, but from Medicaid s own assignment, subrogation and recoupment provisions. Accordingly, any limitations imposed by SSL section 104(2) were irrelevant. 6) The Court went on to state that the DSS has broad authority to pursue ANY amount of third party reimbursement to which the recipient is entitled and the Department s authority to enforce a lien is correspondingly broad. 7) Gold overruled Baker by stating that since the time that Baker was decided in 1976, the statutory framework for Medicaid recovery had undergone development, referring to the Court s recent interpretation of Medicaid s assignment and subrogation rights that had been strongly upheld in Cricchio and Calvanese. 8) Cases that have followed Gold are Carpenter v. Saltone Corp., 276 A.D. 2d. 202 (2d Dep t 2000); Santiago ex rel. Languerre v. Malamud, 182 Misc. 2d. 349 (New York County Sup. Ct. 1999) 9) In Gold, the Court also set aside the majority of the $5 million award to the infant for future medical and custodial needs. While the Court ruled that the lower court had the right to invest the proceeds of the settlement for the infant under CPLR section 1206, the Court failed to use any rational basis to do so such as making a finding that no other means of 9

10 setting aside the money could be achieved. 1) The Court thus found that it would be excessive for the whole award to be placed into the special needs trust. Instead, the Court placed only a small percentage of the proceeds into the special needs trust. 4) Attorneys fees are calculated based upon the overall award or settlement and are paid out before the lien asserted by DSS. Only the attorney and the hospital have priority of payment over the Medicaid lien. Holce v. Ortiz, 193 A.D. 2d. 900 (3 rd Dep t 1993); Rahl v. Hayes 73 Corp., 99 A.D. 2d. 529 (2d Dep t 1984). 5. Negotiating Liens: 1) Verify the amount that Medicaid claims it has made - secure a Claim Detail Report which lists the date of the service, the type of service rendered, and the costs of the services. 1) Make sure the service was not for some other service under Medicaid not related to the injury sustained and that Medicaid is not seeking a recovery from a pre-existing condition. 2) Confirm that the income that is required to be paid pursuant to the Medicaid budget letter has been credited (sometimes referred to as the Net Available Monthly Income - NAMI ). 3) Challenge any medical costs if they were given in an educational setting and make sure that the injury was not sustained in a nursing home. 4) Make sure that DSS followed the strict procedural requirements set forth under SSL section 104-b. 5) Remember the limitations the new cases impose on your ability to secure a net benefit for your client after attorneys fees and the lien are paid. Perhaps Medicaid could become part of the settlement process on weak to moderate cases in which they may be willing to take a reduction in the lien amount in exchange for not having to fully litigate the case. 10

11 6) Consider structured settlements and see if Medicaid will agree to accept the payments over time. 11