This post has been delayed due to recent Medicare Alerts. We apologize for said delay; however, we believe the recent Medicare Alerts are a higher concern. We continue to monitor Medicare’s decision to halt issuance of Final Demands. For updates, please continue to visit this blog at lienblog.wordpress.com or follow our twitter feed @LienResolve.
On March 24, 2011, the United States District Court for the District of Columbia decided Benson v. Sebelius, a case involving the wrongful death of a Medicare beneficiary. The issue in that case was whether a Medicare lien could reach funds not allocated for the state. This case may remind some of Bradley v. Sebelius, but there are some key differences.
In Benson, the parties attempted to allocate some of the settlement funds to the estate for a wrongful death action and the remainder to family members for a survival action. The plaintiff argued that CMS was only entitled to recover from the settlement received by the estate – the wrongful death portion. The difference between Benson and Bradley is that the plaintiff in Benson claimed medical expenses in its recovery. This claim of medical expenses seemed to be the greatest indicator that Medicare was due reimbursement from the settlement. The court reasoned that release language for the beneficiary’s landlord showed the parties had taken medical expenses into account when settling. Additionally, the court denied the plaintiff’s due process argument stating that the plaintiff (who was the beneficiary’s son) had no interest in the portion of his mother’s settlement relating to medical costs.
Benson probably won’t have as big an impact as Medicare and HHS would have liked. The decision in Benson seems to be strictly tied to its facts. It does not replace Bradley v. Sebelius. The key to Medicare’s full recovery in Benson is that the plaintiff claimed medical expenses. Benson’s biggest impact is that it further explains where Bradley will apply.
Using Bradley & Benson to Your Advantage
The key to making Bradley work for you (and to avoiding the result in Benson) is to not claim medical expenses in your settlement. Unfortunately, the strategy to not claim medical expenses is not one many attorneys will take. This strategy becomes even less appealing when considering Medicare payments often are miniscule compared to the actual treatment costs. In many cases, attorneys will consider higher medical expenses an indicator of higher case value (but not always). Are you willing to risk the value of a case?
Ryan J. Weiner Co-Founder Lien Resolution Services www.lienresolutionusa.com https://lienblog.wordpress.com Twitter: @LienResolve firstname.lastname@example.org