Cobb Medicare Lien Considerations For Defense Attorneys

FROM THE DEFENSE SIDE

  • THE FEAR OF THE "SUPER-PRIORITY LIEN"
  • THE FAILURE OF AN INSURANCE CARRIER TO REPORT A BODILY INJURY CLAIM SETTLEMENT OF A MEDICARE BENFICIARY MAY RESULT IN A FINE OF $1000 PER DAY PER CLAIM.
  • MANY CARRIERS ARE ESTABLISHING SPECIFIC MEDICARE REPORTING PROTOCOLS.
  • ANY NO FAULT OR LIABILITY (BI/UM/UIM) CLAIM WHERE THE INJURED PARTY IS ELIGIBLE TO RECEIVE MEDICARE BENEFITS MUST BE REPORTED TO THE CENTER FOR MEDICARE SERVICES
  • THE MEDICARE REPORTING REQUIREMENT IS NOT LIMITED TO ANY PARTICULAR POLICY TYPE
  • AN INJURED PARTY MAY APPLY FOR MEDICARE BENEFITS AFTER THE CLAIM IS FILED
  • NEED MEDICARE-RELATED INFORMATION AS SOON AS POSSIBLE. YOU MUST CONTINUE TO FOLLOW UP UNTIL YOU RECEIVE THE INFORMATION.

    INTERROGATORY: If Plaintiff is enrolled in Medicare, set forth the Health Insurance Claim Number (HICN) and the date eligibility began, or if Plaintiff is deceased, set forth whether the medical bills for treatment that are the basis of this lawsuit were paid for or submitted to Medicare for payment.
  • AT SETTLEMENT: NEED CONFIRMATION ABOUT LIEN AND RESOLUTION OF LIEN. MOST CARRIERS WILL INSIST ON PAYING MEDICARE SEPARATELY. PLAINTIFF'S ATTORNEYS AND PLAINTIFF HAVE DUTY TO PROTECT MEDICARE'S INTERESTS.
  • MEDICARE-SPECIFIC LANGUAGE TO PROTECT CARRIER AND INSURED' INTERESTS MUST BE INCLUDED IN THE RELEASE

RELEASE LANGUAGE

PLAINTIFF IS MEDICARE ELIGIBLE

Medicare and Past Medicare Covered Expenses

Pursuant to Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007, The Center for Medicare and Medicaid Services must be provided Plaintiff's full address, Social Security Number, date of birth, gender, and, if available, the Medicare Health Insurance Claim Number (HICN). Provision of this information is a condition of this settlement. Spaces are provided at the end of this Release for compliance.

Plaintiff expressly acknowledges Plaintiff's obligation to notify Medicare and/or the appropriate administrative agency in the manner required by law of all claims to the extent necessary for Medicare or the appropriate administrative agency to make an initial determination and administratively resolve issues of any "conditional payments" made by Medicare for medical expenses relating to the claims released and to resolve all issues relating to Medicare's independent right of recovery for any portion of the amount paid by Insurer. Plaintiff acknowledges Plaintiff's obligation, among other things, to inform Medicare or its designated contractors or agents about the facts and terms of the present settlement and to submit such information as may be necessary to satisfy the obligations to reasonably consider Medicare's interests and to resolve such issues. Plaintiff authorizes Plaintiff's attorney to escrow sufficient funds to satisfy any liens and to provide documentation to Insured's attorney when such liens have been satisfied.

Plaintiff's attorney further warrants that no medical provider has advised that Plaintiff will require future medical care in connection with injuries sustained during the accident at issue.

Medicare Set Aside

It is further expressly understood and agreed, to the extent applicable, that Plaintiff will set aside funds necessary in any approved Medicare Set Aside Account to pay for any anticipated future medical and/or health care needs of Plaintiff and/or for any injury and/or condition that requires treatment that arises from the injuries related and/or caused by the accident in question. Further, should funds not be placed in an approved Medicare Set Aside Account for Plaintiff, and care and treatment for injuries and/or conditions reasonably related to the accident is subsequently sought, then Plaintiff covenants and represents to Insured, Insurer, and their attorney (and all others in privity with them), that Plaintiff will not submit nor seek payment for medical care from Medicare and/or any other government funded program. This covenant and representation shall be included as part of the indemnification obligations of Plaintiff stated in this Agreement.

Plaintiff understands that should CMS (Medicare) find that a Medicare Set-Aside Allocation should have been established and that Medicare's interests were not adequately protected, CMS (Medicare) may require Plaintiff to expend up to the entire settlement amount on Medicare covered expenses related to the injury before Medicare will provide coverage for the injury. Plaintiff voluntarily accepts this risk and waives any and all claims of any nature and/or damages against Insured, Insurer, and their attorney(s) (and all others in privity with them) should Medicare take such action, including, but not limited to a Private Cause of Action against Insured's liability insurance carrier (as defined in the first paragraph of this Agreement) under the Medicare Secondary Payer Act (MSP) pursuant to 42 USCA § 1395y(b)(3)(A).

It is understood and agreed that the information provided below will be provided to The Centers for Medicare and Medicaid Services pursuant to The Medicare, Medicaid and SCHIP Extension Act of 2007.

Full Name listed on your Social Security Card:__________________________________________

Address:_______________________________________

Date of Birth:____________________________________

Medicare Health Insurance Claim Number (HICN):_______________________________

Gender:_____________________________

PLAINTIFF IS NOT MEDICARE ELIGIBLE

Plaintiff is not a Medicare Beneficiary

The parties have considered Medicare's interest in this matter and the Plaintiff declares and expressly warrants that [he/she] is not Medicare eligible nor within thirty (30) months of becoming Medicare eligible; is not 65 years of age or older; is not suffering from end stage renal failure; has not received Social Security benefits for 24 months or longer; and has not applied for Social Security disability benefits, and/or has not been denied Social Security disability benefits and appealing the denial; and therefore, no Medicare Set Aside Allocation is being established.

Plaintiff expressly acknowledges Plaintiff's obligation to notify Medicare and/or the appropriate administrative agency in the manner required by law of all claims to the extent necessary for Medicare or the appropriate administrative agency to make an initial determination and administratively resolve issues of any "conditional payments" made by Medicare for medical expenses relating to the claims released and to resolve all issues relating to Medicare's independent right of recovery for any portion of the amount paid by Insurer. Plaintiff acknowledges Plaintiff's obligation, among other things, to inform Medicare or its designated contractors or agents about the facts and terms of the present settlement and to submit such information as may be necessary to satisfy the obligations to reasonably consider Medicare's interests and to resolve such issues. Plaintiff authorizes Plaintiff's attorney to escrow sufficient funds to satisfy any liens and to provide documentation to Insured's attorney when such liens have been satisfied.

Plaintiff's attorney further warrants that no medical provider has advised that Plaintiff will require future medical care in connection with injuries sustained during the accident at issue.

Medicare Set Aside

It is further expressly understood and agreed, to the extent applicable, that Plaintiff will set aside funds necessary in any approved Medicare Set Aside Account to pay for any anticipated future medical and/or health care needs of Plaintiff and/or for any injury and/or condition that requires treatment that arises from the injuries related and/or caused by the accident in question. Further, should funds not be placed in an approved Medicare Set Aside Account for Plaintiff, and care and treatment for injuries and/or conditions reasonably related to the accident is subsequently sought, then Plaintiff covenants and represents to Insured, Insurer, and their attorney (and all others in privity with them), that Plaintiff will not submit nor seek payment for medical care from Medicare and/or any other government funded program. This covenant and representation shall be included as part of the indemnification obligations of Plaintiff stated in this Agreement.

Plaintiff understands that should CMS (Medicare) find that a Medicare Set-Aside Allocation should have been established and that Medicare's interests were not adequately protected, CMS (Medicare) may require Plaintiff to expend up to the entire settlement amount on Medicare covered expenses related to the injury before Medicare will provide coverage for the injury. Plaintiff voluntarily accepts this risk and waives any and all claims of any nature and/or damages against Insured, Insurer, and their attorney(s) (and all others in privity with them) should Medicare take such action, including, but not limited to a Private Cause of Action against Insured's liability insurance carrier (as defined in the first paragraph of this Agreement) under the Medicare Secondary Payer Act (MSP) pursuant to 42 USCA § 1395y(b)(3)(A).

It is understood and agreed that the information provided below will be provided to The Centers for Medicare and Medicaid Services pursuant to The Medicare, Medicaid and SCHIP Extension Act of 2007.

Full Name listed on your Social Security Card:__________________________________

Address:_____________________________________

Date of Birth:_________________________

Medicare Health Insurance Claim Number (HICN):___________________________

Gender:________________________

LIEN LANGUAGE

Plaintiff acknowledges and understands that certain liens may exist on these settlement proceeds, such as liens arising from medical services and/or treatment rendered by various medical providers. In further consideration of the sum paid, Plaintiff agrees that Plaintiff will pay, satisfy, and release any and all outstanding liens (including, but not limited to, any lien held by the government of the United States or by the State of South Carolina, pursuant to any Medicare or Medicaid program, Social Security, hospital, medical insurance coverage subrogation claims, worker's compensation, and/or any and all other type of liens or interest that is and/or could be claimed by any person and/or entity) from the settlement proceeds paid, and will keep all settlement proceeds in trust until such time as all liens and/or claims have been fully paid, satisfied, and/or released.

Plaintiff expressly stipulates and agrees to defend, indemnify, and hold harmless Insured, Insurer, and their attorneys (and all others in privity with them) from any and all lawsuits, causes of action, demands and/or claims of any nature whatsoever that may be made or instituted by any such lien holders for the purpose of enforcing any lien attaching to these settlement proceeds.

Plaintiff acknowledges that all subrogation and lien claims arising out of contract or under state or federal law, including, but not limited to, any subrogation or lien claims of Plaintiff's health care providers, insurance carriers, state workers' compensation, and any federal agency or programs such as Medicare, Medicaid, or Social Security, are their sole and separate obligation and Plaintiff agrees to pay or otherwise resolve. Plaintiff hereby covenants to defend, indemnify, and hold harmless Insured, Insurer, and their attorney(s), agent(s), and/or representative(s) from and against all such lien and subrogation claims brought against Insured. This indemnification obligation includes all penalties, damages and costs incurred by Insured, including but not limited to attorney's fees, fines and penalties, multipliers, costs, interest, expenses and judgments.

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Phone: (843) 881-6666
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