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Misconceptions: It’s Not a Valid “Lien” Unless They Put Me on Notice

The most troubling “liens” are the ones that come up unexpected.  But why do liens come up without warning?

For starters, we have to remind you that we all use the term lien loosely.  Most of the time we are not dealing with liens at all.  The usual encumbrance is either a subrogation right, a reimbursement right, or if the plan drafters were smart, both of those.  We use the term lien to cover those rights as well as true liens.  The key to any lien resolution is always the plan language (don’t believe us? Check out how we were able to defeat an ERISA lien recently).

Liens are valid when…

Plain old actual liens are usually governed by a state lien act.  If your state doesn’t have a lien act you must look to equitable doctrines to see if the case law allows a lien.  Because they vary so great by state it is difficult to write a concise blog post on real liens.  The most likely reason a lien is valid is if you have notice of it prior to settlement.

Subrogation is valid when…

For the most part, subrogation is valid when a health plan language says it is valid.  If the master plan and the summary plan disagree on subrogation further legal analysis will be needed.  But your ignorance of subrogation does not mean the plan cannot come after settlement funds.  In fact, most good subrogation provisions state that it is the beneficiary’s responsibility to report a lawsuit is underway.

Reimbursement is valid when…

Reimbursement rights work the same was as subrogation rights.  Look to the plan language.  Some states may also have common law rules for reimbursement.  Just like subrogation, a well written health plan document will state that it is the beneficiary’s responsibility to inform the plan of a lawsuit.

Medicare Liens are valid when…

Always.  Medicare liens are valid always.  Medicare liens are not liens of course, but that’s what we all call them.  You have a duty to report existence of a case to Medicare.  The only limitation might be the statute of limitations (28 U.S.C. 2415) where Medicare has six (6) years and three (3) months from the settlement date to recover Medicare’s claim.

At Lien Resolution Services we can assist you with Medicare lien resolution, Medicaid lien resolution, ERISA liens, private insurance liens, and more.  We’ll take care of getting you the “lien” and reducing it too.

Ryan J. Weiner
Lien Resolution Services
This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.



About Ryan J. Weiner

Co-Founder of Lien Resolution Services, LLC, a national healthcare lien resolution firm. Our goal is to assist in the fair administration and resolution of healthcare liens on personal injury cases. Please visit our website for more information: www.lienresolutionusa.com.

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