Misconceptions: It’s Not a Valid Lien Unless They Put Me on Notice
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 insurance 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 state law for equitable doctrines that might allow a lien. It is difficult to write a concise blog post on true liens because the laws vary so much by state. 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. It is much easier to work with the insurance company in a reimbursement right than allow it to subrogate and join your case.
Reimbursement is valid when…
Reimbursement rights work the same way 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 Massive we can assist you with Medicare lien resolution, Medicaid lien resolution, private insurance companies’ liens, Military, VA and TriCare, Mass Tort lien resolution and more. Call us today at 833-GOMASSIVE to discuss your lien resolution needs.
We’ll take care of getting you the “lien” and reducing it too.
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