repay medicare after settlement out of court.

I am from Arkansas. Is it the law that I pay back Medicare in the event that I receive a settlement in witch Medicare has played the medical bills if they do not have a lien and we settle out of court?

Yep. Called 'subrogation'.

Your attorney should have been aware of and advised you of Medicare’s right to reimbursement. Additionally, your attorney should be attempting to negotiate a compromise with Medicare as to the amount they will receive from your settlement. It is not unrealistic to have it reduced by 25% to 33%, as this is most likely the range your attorney charges for his services, and thus they should “pay” their fair share of legal costs. However, if there was indeed no lien by Medicare your attorney is not REQUIRED to do this.

Thomas234 said:

Your attorney should have been aware of and advised you of Medicare’s right to reimbursement. Additionally, your attorney should be attempting to negotiate a compromise with Medicare as to the amount they will receive from your settlement. It is not unrealistic to have it reduced by 25% to 33%, as this is most likely the range your attorney charges for his services, and thus they should “pay” their fair share of legal costs. However, if there was indeed no lien by Medicare your attorney is not REQUIRED to do this.

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My response:

Thomas234, where are you getting your information? It's absolutely, 100%, WRONG. There doesn't have to be a signed "lien" under Federal law! Medicare has an "automatic" lien right to reimburement!

In addition to statutory subrogation and reimbursement rights that may be asserted against a Medicare beneficiary and/or third party tortfeasor (above), applicable regulations give Medicare a right of action to seek reimbursement from the beneficiary's attorney to the extent he or she received payments from tortfeasors or insurers. (Indeed, a beneficiary "or other party" that receives a "third party payment" is required to reimburse Medicare within 60 days.) [See 42 USCA § 1395y(b)(2)(B); 42 CFR § 411.24 (g),(h),(f); Zinman v. Shalala, supra, 835 F.Supp. at 1166-1168, 1171; Denekas v. Shalala (SD IA 1996) 943 F.Supp. 1073, 1080; United States v. Sosnowski (WD WI 1993) 822 F.Supp. 570, 573]

So, Thomas, since there is no statutory or regulatory requirement that you, as plaintiff's attorney, notify Medicare that suit has been filed (or judgment or settlement obtained) against the insurer or third party tortfeasor, you should, nevertheless, to avoid potential personal liability (above), contact Medicare before disbursing the client's recovery in order to ascertain any potential claim for reimbursement.

Stop giving out BOGUS information - - especially if you're not an attorney! The PROPER, LEGAL answer to our original writer's question is YES!

IAAL

I was not attempting to imply that Medicare is NOT entitled to reimbursement due to a lack of a lien. As you have said yourself, “there is no statutory or regulatory requirement that you, as plaintiff's attorney, notify Medicare that suit has been filed (or judgment or settlement obtained) against the insurer or third party tortfeasor, you should, nevertheless, to avoid potential personal liability (above), contact Medicare before disbursing the client's recovery in order to ascertain any potential claim for reimbursement.” Thus what I am saying is the attorney is not required, although it might be his best interest, to do so.

Have a good one.

Thomas234 said:

I was not attempting to imply that Medicare is NOT entitled to reimbursement due to a lack of a lien. As you have said yourself, “there is no statutory or regulatory requirement that you, as plaintiff's attorney, notify Medicare that suit has been filed (or judgment or settlement obtained) against the insurer or third party tortfeasor, you should, nevertheless, to avoid potential personal liability (above), contact Medicare before disbursing the client's recovery in order to ascertain any potential claim for reimbursement.” Thus what I am saying is the attorney is not required, although it might be his best interest, to do so.

Have a good one.

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My response:

You can try to put any SPIN you want on this Thomas, but the fact is, you did, at the very least, "imply" that if there is no lien, then no one is required to reimburse medicare - - when you said,

"However, if there was indeed no lien by Medicare your attorney is not REQUIRED to do this."

Sure, no one is "required" - - BUT, if you as the attorney, want to disburse funds to the client before calling Medicare, then guess who's going to be "on the hook" for reimbursement? That's right, the attorney! That's why our writer's attorney is taking the "automatic lien" amount out of the writer's share of the settlement, NOW.

Geez, if you're an attorney Thomas, you must be doing a real "bang up" job - - getting yourself into a financial hole.

IAAL

I fail to see what possible motivation I would have, or reward I would receive, by attempting to put any type of “spin” on my comments. Well that is other than watching you twist yet another post to satisfy your own insatiable desire to boost your self-esteem and ego, at least in your own mind, that is.

Thomas234 said:

I fail to see what possible motivation I would have, or reward I would receive, by attempting to put any type of “spin” on my comments. Well that is other than watching you twist yet another post to satisfy your own insatiable desire to boost your self-esteem and ego, at least in your own mind, that is.

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My response:

Gee, I don't know what your "motivation" was, or is - - other than, perhaps, to see your words in print. But, what I do know is this - - that the writer was concerned about his attorney taking money out of his settlement, without a signed lien on file, to repay medicare. That was the "thrust" of our writer's post - - otherwise, why write to us?

You, with your bogus response, were obviously attempting to give the writer some sort of reasoning that he should object, in some manner, to his attorney's legal obligation to repay Medicare out of our writer's portion of his settlement. That was your CLEAR intent.

You NEVER discussed that the Medicare lien was "automatic" - - did you? No, you didn't. But, what you did say was that if there "was no lien", then our writer's attorney doesn't have to repay Medicare out of the settlement.

So, tell me, with the law that is perfectly clear on this issue, how was I "twisting" anything?

IAAL

I guess someone left the troll bridge down again.

And it wasn't my turn to watch it

My further response:

You mentioned that our writer's attorney should "negotiate the lien" being enforced by Medicare. Thomas, can you cite me to ANY Federal law that requires a Federal agency; e.g., Medicare, to reduce its lien under a "common fund" theory?

I'll give you the answer - - there is none. Medicare is NOT considered an "insurer" under Federal law, and is therefore, not required to reduce its "automatic lien" under the "Common Fund" doctrine.

When you stated that our writer's attorney can "negotiate" the lien, then that tells me that you're confusing Federal law with State law, where the insurer's subrogation lien should be reduced by a pro rata share of the insured's costs in securing a judgment or settlement from the third party. This is the application of the "common fund" doctrine by which fees incurred in obtaining a common fund are equitably apportioned among those benefited. [Samura v. Kaiser Found. Health Plan, Inc. 17 Cal.App.4th at 1297, 22 Cal.Rptr.2d at 28] On the State level, and when dealing with insurance companies (not State or Federal agencies) the lien is reduced pro rata, commensurate with the participant's reasonable attorney fees and costs, "in accordance with the common fund doctrine". A nonparty lienholder, such as an insurance company (or even Kaiser Permanente for that matter) receiving reimbursement pursuant to a right contingent on the plaintiff debtor's recovery from the defendant tortfeasor, is ordinarily obligated to pay an equitable portion of attorney fees incurred by plaintiff in obtaining recovery (the "common fund") from the third party. The "equitable" share of fees comes off the top of the lien.

Simply, the "Common Fund" doctrine is an outgrowth of State law, that requires an insurance company to reduce its lien - - not a Federal agency. So, when you said, "Additionally, your attorney should be attempting to negotiate a compromise with Medicare as to the amount they...", that bit of nonsense was some sort of abberation of nonexistent law on your part. In short, not only was it ignorant of you to mention the possibility of our writer's attorney to "negotiate" the lien, but your words also gave our writer "hope" where there is none. The Medicare lien MUST be reimbursed IN FULL!

Oh, and before you jump on me because I have cited California law, the principles of the law quoted above are general in nature; however, every State has some sort of "Common Fund" law, like California. What remains constant, however, is that there is NO SUCH law on the Federal level.

IAAL