LIENS

Important Information for Resolving Liens in Asbestos Cases. Asbestos Exposure cases are unique when it comes to lien resolution because of factors that are unlike any other type of litigation. Unlike a pharmaceutical case where the illness develops within a 1-3 year period, most asbestos-related diseases are diagnosed decades after the initial exposure. By the time Mesothelioma or Asbestosis are detected, the claimant is usually a retiree. In managing an Asbestos caseload, it is important to know what the lien obligations are, especially when dealing with multiple defendants. Origin of exposure, military service, dates of exposure, and whether the exposure is from a primary or secondary source are all important factors that impact the resolution of health insurance liens. Due to the 15 – 40 year latency period for the development of Mesothelioma, and 10 – 20 year latency period for Asbestosis, most asbestos claimants are over the age of 65. Many claimants receive Medicare, Medicaid, and VA health care benefits. It is important to know the recovery rights of these insurers before going forward with your case. Here are a few important facts regarding lien resolution in Asbestos cases:

• The Department of Veterans Affairs (VA) has determined that if Asbestos related illness can be proven to be directly related to exposure during military duty or service, they VA will not assert their right of recovery against the VA beneficiary. Many Naval servicemen were exposed to asbestos through their work on ships, shipyards, and through building materials during the early to mid 1900s.
• Medicare has determined that in Asbestos cases, a lien will be asserted in settlements where the last date of exposure is on or after December 5, 1980. It is imperative that the work/exposure history is reviewed before resolving the Medicare lien.
• Under the new MMSEA guidelines, in cases where there are multiple defendants, Medicare requires that the RRE (Responsible Reporting Entities) for each defendant report the settlement to Medicare, regardless of any agreements by any one defendant to pay any outstanding obligations.

Synergy’s lien resolution gropu has developed resolution processes specifically for the Asbestos community. For more information about our resolution services and project case management, please contact Synergy at (877)907-5436, or info@synergysettlements.com.

Quick tips that can move your settlement to the Head of the Class!

A – Allocation: When in the process of negotiating a settlement and determining the allocation of proceeds, be mindful of any outstanding lien obligations. Some plans may have a right to recover from the full value of the settlement if an allocation does not protect their interest.

B – Bargaining with a provider or recovery agent can be worthwhile if there is a clear understanding of the strength or weakness of their right of recovery. Make them an offer they can’t refuse!

C – Call! Regular communication is necessary, especially when resolving with Medicare, Mediaid or the Military Health Plans. Remember, the squeaky wheel gets the oil!

D – Delegate: When the task of Lien Resolution becomes to overwhelming, delegate this aspect of case management to the PROs! Lien Settlement Solutions offers programs that meet all of your lien resolution needs. Call us at (877)907- LIEN to speak to one of our representatives!

E – Explanation of Benefits: When investigating a possible obligation to an insurer, it is helpful to request the Explanation of Benefits, which is usually sent to the beneficiary when a claim is processed on their behalf.

F – Filterout any claims that are not related to the compensable injury. In all lien or recovery situations, be sure to screen and filter any claims that may have been included in error.

G – Get another opinion. If you are unsure about the validity of a lien, or need help in deciding how to approach the specifics of a plan, get the opinion of a Lien Professional before going any further. LSS provides consultations and “Question and Answer” opportunities for anyone seeking a second opinion.

H – HIPAA: Be sure all lien holders have a valid HIPAA release on file at the beginning of the resolution process.

I – Investigate: Sometimes recovery contractors will have you beleive that the plan they represent has a strong right of recovery. Before you write a check, investigatethe type of plan, the laws that apply to it, and the subrogation language within the policy.

J – Justify your negotiation with the law. As with any case, there are laws established to argue either side. In ERISA and other plans, there are federal and state statutes that can be used to justify your arguments towards a reduced or even eliminated lien. Research your options before going forward.

K – Keep the client in the loop. There is nothing more frustrating or damaging than a client (claimant/beneficiary) that is unaware of the impact their liens may have on the settlement. Make sure that your client is informed at each step of the process, especially if they are still receiving care for their injuries, as the processing of their claims may be affected.

L – Liability, No-Fault, Self Insurance and Workers Compensation have more specific reporting guidelines under the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Section 111). For more information about MMSEA and Medicare Compliance, contact Lien Settlement Solutions at (877)907-LIEN.

M – Medicare and Medicaid plans are both government provided health care plans. The difference is that Medicare is a federal entitlement based program for people age 65 and older, have Kidney Failure, or are disabled. Medicaid plans are state sponsored, income/need based benefits reserved for those who qualify, regardless of age.

N – Never accept an offer without getting it in writing!

O – Outsourcing: Although lien resolution may seem “cut and dry” there are many aspects, resources and methods that may not be as obvious or elementary. Outsourcing to lien professionals like Lien Settlement Solutions ensures that the most innovative techniques are utilized to provide the best possible outcome for you and your client.

P – Plan your strategy. Don’t just jump in with both feet, and hope for the best! Evaluate the settlement, the liens asserted, and your time frame and determine the best course of action when resolving these issues. A good strategy can make the difference between a great outcome or a botched effort.

Q – Question everything that is not clear about the plan language, the claims, or the right of recovery. If you are not satisfied with the answer, ask someone with a better understanding, like a manager or a lien professional at Lien Settlement Solutions.

R – Reduce: Though it may be painful, reducing your attorney fees may prove helpful when requesting a compromise from a lienholder. It shows the lien holder that your primary goal is to be fair to your client on both sides, and they are usually more willing to compromise.

S – Savings: The goal is to save your client as much of the net settlement as possible, while still fulfilling their obligation to the lien holder. By being fair to both parties will guarantee a better outcome for you and your client.

T – Time: Be mindful of the time frames associated with resolving a case. Private and ERISA plans may resolve liens sooner than Medicare or VA/Tricare. Each agency has its own schedule for responding to requests, and accessing claim information . If time is of the essence, it may be a good idea to start the resolution process earlier in the case.

U – Understanding available defenses can help when resolving an ERISA or Private Insurance lien. Knowing how and when to use the Anti-Inurement Rule or the Specific Fund Doctrine, among others, can make all the difference when paying a large lien or a compromise for pennies on the dollar.

V – Verification: Lien Settlement Solutions can assist you in the verification and evaluation of plan validity for potential lien holders. Ask us how!

W – Waivers are somewhat elusive (especially in Medicare liens), but can be achieved with a lot of insight and transparency on the part of the client and you, the attorney or representative. For more information on Medicare or other types of waivers, contact a lien professional at Lien Settlement Solutions.

X- X is for DENIALS! When Medicare issues a denial, there are still other ways to seek a favorable determination. Medicare has many levels and agencies that are devoted to Appeals, Compromises, Waivers and Redeterminations. So, if at first you don’t succeed, Medicare will allow you to try again.

Y – Your client’s satisfaction and protection are paramount. Be sure to identify their obligations, and act in good faith on their behalf. There have been instances (U.S. v Harris, 2008) where an unresolved claim has lead to penalties against the representing attorney.

Z – We couldn’t find anything that went with the letter Z, so we conclude with this; lien resolution is a tedious process, but can be extremely rewarding if executed correctly. Seek information, plan ahead, and don’t be afraid to ask for help. There are professionals that can assist you in navigating this task. Synergy is available to assist with all of your lien resolution needs. Contact us today, and let’s work on this together!

Dear Synergy;

I’ve got a settlement and an 18 y/o client whose mother works for the federal government. All the medical bills appear to have been paid by the mother’s private insurance company, but I suppose that they may be the administrator. This is an Anti Subrogation state, but we assume that FEHBA plans are preempted. We have received no notice from the FEHBA or Private Insurer plans about any sort of subrogation interest. Have you been down this road before? – Confused in the Carolinas

In reviewing FEHBA subrogation, it generally preempts state law and is not beholden to ERISA law in which North Carolina is an Anti Subrogation state for some insured plans. I’ve been looking for any type of loophole where NC’s anti subrogation can be can be argued for a FEHB plan, but everything I’ve found is to the contrary. The strength of the right of recovery in a FEHBA plan lies in the specific description within the plan. I looked through a few plans to get an idea on how NC FEHBA plans are written. Specifically, I reviewed the BCBS of NC FEHBA Standard and Basic Operation plan for 2009 to get an idea of what the plan language may look like in this situation. According to the 2009 plan, it is the responsibility of the beneficiary to notify BCBS of any claim made against another party for compensation of an illness or injury where BCBS has made payment. According to their plan language, they are entitled to full recovery, and not subject to reduction for procurement. However it does express a willingness to grant a reduction at their discretion. It was not specified if the incident occurred in 2009, you would need to review the plan document for that year of enrollment. Hope this helps! Have a lien question? Ask us! Send your question to info@synergysettlements.com.