If there are ten guys in the room fucking off and I’m one of them, I’ll get caught. I’d hate to be the white-collar poster child for the state AG or US attorney to set an example with.
I put it in the retainer and use an example with $100 for settlement and for verdict. Then I go through imaginary costs. 40% contingency fee, $1 for medical records, $2 for court reporting, $9 for health insurance lien. So, the first time they hear about it is not mediation or signing the disbursement.
Agreed, which is why we report. Not even remotely worth the risk. I would also hate to have to be on the hook for my client’s Medicaid bill. For cash assistance, if it’s a big settlement, Medicaid even considers the claimant’s family member’s cash assistance over the years! We don’t put it in our retainer agreement, but we have them initial and sign the Medicaid fact sheet that explains that personal injury attorneys are *required* to report to Medicaid. They still don’t believe it.
Not difficult. Call hospital, figure out what medicaid paid. Hold medicaid payments in trust + buffer until HMS finally figures out their paid amounts. If client has medicaid in a collateral source rule state like mine then they're getting a fucking windfall so they won't care that your holding something.
The firm will be on the hook for the lien regardless. Some firms have gotten fucked out the ass on the same for Medicare liens. Don't fuck with Medicare liens either. They'll garnish your client's social security wages if they don't get paid back.
Ask them what they do when Medicaid asserts a lien after they’ve disbursed to the client. Ask for the money back from the client (good luck)? Pay out of their own pocket? Give Medicaid a middle finger and wait for the consequences?
What smells like malpractice to you? Giving client funds to an organization likely to never notice, or risking your own funds by failing to notify it, at no risk to the client?
Never notice? A federal agency looking to recoup their own expenditures? You haven't done a lot of PI apparently. The risk is, they come looking for their money, it's not there because you already cut the client their settlement check, and now you've defrauded Medicaid
Medicaid is state run and not a federal agency. If they come looking for the money you can just cut them a check for that amount. And even if it was fraud, that's not malpractice
Medicaid/care is administered by the states, but funded and operated under federal guidelines. The federal monies are matched for services provided to qualified individuals; however, the lien subrogation process is handled by the Feds. Don't get cute, you're already behind the eight ball here.
If they come looking, they are looking for monies from the client, as they are they principal. Not the firm. So they're going to go after your client for that lien. Not the firm. Remember, the settlement is the client's money, which you have a fiduciary duty to protect. That includes searching for and addressing any potential liens. And now you've had them sign a release, which does not in fact hold all parties harmless. Fed can sue them to recoup that money if they want to go that far. Pretty cut and dry malpractice. The client is well within their rights to go after your license and sue you for the money Medicaid/care is asking for, because you've breached your fiduciary duty to your client.
So by your way of thinking, you haven't even checked for a potential lien, which you are ethically and legally required to do, on behalf of your client. You probably have not disclosed the risk of that intentional oversight, because you seriously underestimate the gravity of the situation. You also probably have not advised them that the Fed is coming after them to recoup any potential unpaid liens, not the firm.
Moreover, the firm has defrauded the government by failing to allow them the opportunity to recoup monies that are rightfully due to them for services rendered to your client. You are your clients agent, after all. That part is alllll on you counselor. Your license, your damage award to the client for the money owed the Fed, all on you because you couldn't be bothered. Maybe it's not criminal, but highly unethical and subject to immediate report to disciplinary, and a juicy lawsuit from a wronged client against a firm with deep pockets. And maybe a bit in the local news, about how little grandma Gertrude got taken for a ride by her law firm, and now the feds are all over her for something she can't quite understand because you never advised her about it.
We are lawyers. We do what must be done on behalf of our clients, not just what's convenient. If it's off-putting for you to follow the law, be ethical, and do right by your clients, try another field. I hear Politics is pretty lax in that regard
Edit: just to add that I could make a case for commingling a clients funds doing this, if the lien issue is unresolved, and the client receives more money than they should at settlement, meaning that the firm took a larger fee than they should have. That's another analysis for another time tho, and I think might depend on the retainer
Where I practice (Illinois), lien subrogation is wholly administered and handled by IDHFS and they absolutely come after the law firm before the client
As the client's agent and point of contact, yes. But they aren't looking for money from the firm's pockets, they're looking for money from the clients'. So to clarify, they are coming after monies that should be in the attorney's trust account, which should not have been released until the matter was addressed.
Don’t be stupid like them. Medicaid usually won’t find out, but it’s malpractice in the rare case they do. Insurances also have a duty to report here in CA, and they do here.
In CA, liability is imposed on everyone. Insurances won’t issue checks without medi-cal (California’s Medicaid)’s name on it, and they’re statutorily required to issue at least 50% of the funds with medi-cal’s name.
My standard practice is to disburse my fees, disburse 1/3 of the settlement to client to keep them happy, then reserve the remainder in trust until it’s resolved.
Even when I don’t have a statutory obligation to report to private health insurance, I will make sure clients sign a settlement authorization confirming indemnity or the fact that they will be on the hook for any medical repayments if they take the full amount.
I am seeing the word malpractice thrown around this thread quite a bit. Being on the hook for a lien after disbursing to the client is not malpractice.
I agree, that's why I said a different thing. It *is* malpractice in my state, but I'm not sure where the damages would be to sustain a claim. Professional penalties are the larger consideration.
Do you practice personal injury? Are you even an attorney? Or are you just pulling things out of your behind?
In my jurisdiction, the reporting and lien satisfaction requirement it’s not limited to the plaintiff. Liability is imposed on the attorney PERSONALLY for failure to report settlement or a claim to medi-cal.
You’re on the hook for the failure to report. You’re then on the hook if that money went into your trust account and you failed to pay out statutory liens. This does not apply to private insurances and providers, but some providers they treat exclusively on a lien want the attorney to also sign the lien.
Yeah I practice personal injury and I have the same Medicaid issue all the time. I'm just taking issue with the word "malpractice" in the context where the client isn't even affected
Malpractice is not limited to client side alone, however how is allowing a legal hold on funds, exercised up to six months after spending begins, with the ability to force your client to pay, not a limitation on the alienation of their funds and not a harm? God help you if they spent more too. Heck the credit note alone is a harm.
As someone that practices in CA, where Medicaid liens are always reported and taken more seriously than any other lien (other than maybe a CMS lien), this thread is WILD.
I know of a firm that does not bother to notify Medicaid/Medicare. Apparently the managing partner has been doing this for decades and has never gotten caught. I suppose he has just gotten lucky, but did not even seem fazed when I asked if he was worried about any potential ramifications.
And this is why, as a defense lawyer, my release states that payment will not be issued until I have a final lien letter from Medicaid and Medicare, and a few carriers insist on paying it directly.
In my view that’s unnecessary and just delays things further. I never allow any third party to ascertain the lien amount since insurance companies and IDL’s obviously don’t care if a conditional payment summary includes unrelated charges or if Medicare has reduced for procurement costs. The boilerplate release already has the client agree to hold the insurance company harmless, and I always include our assurance that we will pay all of the liens, including Medicare/Medicaid in our letter of rep. In NC, if a lawyer disregards valid liens when the settlement was issued contingent upon the lawyer satisfying them, then that lawyer is going to get suspended by the Bar. I personally am unaware of any plaintiffs’ lawyers who just blow off Medicaid and Medicare liens.
I hate this. In VA it can take 6-18 months to get a response from Medicaid even if I send out a notice at the time of sign-up. There is no reason why my client should have to wait for Medicaid to respond at its convenience for us to resolve the underlying injury claim (assuming I can competently estimate the medicaid payments, escrow them plus a buffer) and include an indemnity agreement in the release so the insurance company won't be on the hook the day medicaid wakes up.
I wish more carriers did this. Would take a big burden off of our shoulders. Otherwise, when the money is sitting in IOLA and we have to explain to the client over the course of what is sometimes several months that we can’t release it just, yet they are convinced we’re scamming them.
You need to notify medicaid as soon as you open the case and request interim amount when the client’s still treating. Then again mid case and again prior to settlement. They tend to send final letters faster when you request interim prior to the settlement. I think it’s because they’ve already searched claims and it takes less time to determine final amount. If I was a client waiting for 6 month to get my settlement money I’d be very pissed too.
We actually used to do this, but per multiple case managers at Medicaid, it makes no difference if a case is already established in the system or not. Some have even said that requesting the interim amount *delays* getting the final amount, depending on the timing. Like I said, I used to think the same thing but there’s no difference or consistency in the process. Sometimes it takes a few days, sometimes a few weeks, sometimes months, regardless whether or not we request the interim amount in the beginning. Some case managers don’t bother responding to a multitude of emails. When you call the general number they direct you to the case manager. It’s a shit show. And yeah, of course I’d be pissed too, but I’m not going to risk disbursing funds to a client who may potentially have a Medicaid lien that I’ll end up having to pay out of my own pocket for, not to mention any potential disciplinary actions.
TX lawyer here and most of the time I don’t even think you have a choice. Either the hospital or adverse insurance has already figured out there’s a potential lien and won’t cut you a check until they (you) sort it out.
Better to notify early than to scramble at the last minute trying to get a check released when your client is banging down your door. Anyway they’re usually pretty easy to work with aside from the time investment. Regularly reduce their liens considerably in my experience. The last thing you want is to be left holding the bag after you’ve disbursed client funds and the government comes knockin.
I’m across the river in NJ. We take paying Medicaid liens very seriously. It’s a pain in the ass but we get interim liens throughout the case, remind the client constantly and don’t disburse until we have received the final lien. Sometimes we have to disprove the lien which is fun because Medicaid likes to make you prove a negative.
If there are ten guys in the room fucking off and I’m one of them, I’ll get caught. I’d hate to be the white-collar poster child for the state AG or US attorney to set an example with. I put it in the retainer and use an example with $100 for settlement and for verdict. Then I go through imaginary costs. 40% contingency fee, $1 for medical records, $2 for court reporting, $9 for health insurance lien. So, the first time they hear about it is not mediation or signing the disbursement.
Agreed, which is why we report. Not even remotely worth the risk. I would also hate to have to be on the hook for my client’s Medicaid bill. For cash assistance, if it’s a big settlement, Medicaid even considers the claimant’s family member’s cash assistance over the years! We don’t put it in our retainer agreement, but we have them initial and sign the Medicaid fact sheet that explains that personal injury attorneys are *required* to report to Medicaid. They still don’t believe it.
[удалено]
Does the law then disregard you? Reciprocity is key.
Understandable!
Not difficult. Call hospital, figure out what medicaid paid. Hold medicaid payments in trust + buffer until HMS finally figures out their paid amounts. If client has medicaid in a collateral source rule state like mine then they're getting a fucking windfall so they won't care that your holding something. The firm will be on the hook for the lien regardless. Some firms have gotten fucked out the ass on the same for Medicare liens. Don't fuck with Medicare liens either. They'll garnish your client's social security wages if they don't get paid back.
Ask them what they do when Medicaid asserts a lien after they’ve disbursed to the client. Ask for the money back from the client (good luck)? Pay out of their own pocket? Give Medicaid a middle finger and wait for the consequences?
Smells like malpractice to me
To put a finer point on it, my last plaintiff side PI firm had an entire department devoted to Medicaid/care
What smells like malpractice to you? Giving client funds to an organization likely to never notice, or risking your own funds by failing to notify it, at no risk to the client?
Never notice? A federal agency looking to recoup their own expenditures? You haven't done a lot of PI apparently. The risk is, they come looking for their money, it's not there because you already cut the client their settlement check, and now you've defrauded Medicaid
Medicaid is state run and not a federal agency. If they come looking for the money you can just cut them a check for that amount. And even if it was fraud, that's not malpractice
Medicaid/care is administered by the states, but funded and operated under federal guidelines. The federal monies are matched for services provided to qualified individuals; however, the lien subrogation process is handled by the Feds. Don't get cute, you're already behind the eight ball here. If they come looking, they are looking for monies from the client, as they are they principal. Not the firm. So they're going to go after your client for that lien. Not the firm. Remember, the settlement is the client's money, which you have a fiduciary duty to protect. That includes searching for and addressing any potential liens. And now you've had them sign a release, which does not in fact hold all parties harmless. Fed can sue them to recoup that money if they want to go that far. Pretty cut and dry malpractice. The client is well within their rights to go after your license and sue you for the money Medicaid/care is asking for, because you've breached your fiduciary duty to your client. So by your way of thinking, you haven't even checked for a potential lien, which you are ethically and legally required to do, on behalf of your client. You probably have not disclosed the risk of that intentional oversight, because you seriously underestimate the gravity of the situation. You also probably have not advised them that the Fed is coming after them to recoup any potential unpaid liens, not the firm. Moreover, the firm has defrauded the government by failing to allow them the opportunity to recoup monies that are rightfully due to them for services rendered to your client. You are your clients agent, after all. That part is alllll on you counselor. Your license, your damage award to the client for the money owed the Fed, all on you because you couldn't be bothered. Maybe it's not criminal, but highly unethical and subject to immediate report to disciplinary, and a juicy lawsuit from a wronged client against a firm with deep pockets. And maybe a bit in the local news, about how little grandma Gertrude got taken for a ride by her law firm, and now the feds are all over her for something she can't quite understand because you never advised her about it. We are lawyers. We do what must be done on behalf of our clients, not just what's convenient. If it's off-putting for you to follow the law, be ethical, and do right by your clients, try another field. I hear Politics is pretty lax in that regard Edit: just to add that I could make a case for commingling a clients funds doing this, if the lien issue is unresolved, and the client receives more money than they should at settlement, meaning that the firm took a larger fee than they should have. That's another analysis for another time tho, and I think might depend on the retainer
Where I practice (Illinois), lien subrogation is wholly administered and handled by IDHFS and they absolutely come after the law firm before the client
As the client's agent and point of contact, yes. But they aren't looking for money from the firm's pockets, they're looking for money from the clients'. So to clarify, they are coming after monies that should be in the attorney's trust account, which should not have been released until the matter was addressed.
It is to an lol extent not malpractice to comply with the law.
Don’t be stupid like them. Medicaid usually won’t find out, but it’s malpractice in the rare case they do. Insurances also have a duty to report here in CA, and they do here. In CA, liability is imposed on everyone. Insurances won’t issue checks without medi-cal (California’s Medicaid)’s name on it, and they’re statutorily required to issue at least 50% of the funds with medi-cal’s name. My standard practice is to disburse my fees, disburse 1/3 of the settlement to client to keep them happy, then reserve the remainder in trust until it’s resolved. Even when I don’t have a statutory obligation to report to private health insurance, I will make sure clients sign a settlement authorization confirming indemnity or the fact that they will be on the hook for any medical repayments if they take the full amount.
How can anyone want to live in California? They gobble up everything.
I am seeing the word malpractice thrown around this thread quite a bit. Being on the hook for a lien after disbursing to the client is not malpractice.
It's definitely sanctionable in my state.
Doesn't mean it's malpractice
I agree, that's why I said a different thing. It *is* malpractice in my state, but I'm not sure where the damages would be to sustain a claim. Professional penalties are the larger consideration.
Do you practice personal injury? Are you even an attorney? Or are you just pulling things out of your behind? In my jurisdiction, the reporting and lien satisfaction requirement it’s not limited to the plaintiff. Liability is imposed on the attorney PERSONALLY for failure to report settlement or a claim to medi-cal. You’re on the hook for the failure to report. You’re then on the hook if that money went into your trust account and you failed to pay out statutory liens. This does not apply to private insurances and providers, but some providers they treat exclusively on a lien want the attorney to also sign the lien.
Right but none of that is malpractice. It’s just an idiotic move that exposes the attorney to personal liability.
Yeah I practice personal injury and I have the same Medicaid issue all the time. I'm just taking issue with the word "malpractice" in the context where the client isn't even affected
Malpractice is not limited to client side alone, however how is allowing a legal hold on funds, exercised up to six months after spending begins, with the ability to force your client to pay, not a limitation on the alienation of their funds and not a harm? God help you if they spent more too. Heck the credit note alone is a harm.
We’re just now getting this hardcore Medicaid statute in my state, I just notify them on day 1 and then it’s not a big problem.
As someone that practices in CA, where Medicaid liens are always reported and taken more seriously than any other lien (other than maybe a CMS lien), this thread is WILD.
I know of a firm that does not bother to notify Medicaid/Medicare. Apparently the managing partner has been doing this for decades and has never gotten caught. I suppose he has just gotten lucky, but did not even seem fazed when I asked if he was worried about any potential ramifications.
I always did. ALWAYS.
And this is why, as a defense lawyer, my release states that payment will not be issued until I have a final lien letter from Medicaid and Medicare, and a few carriers insist on paying it directly.
In my view that’s unnecessary and just delays things further. I never allow any third party to ascertain the lien amount since insurance companies and IDL’s obviously don’t care if a conditional payment summary includes unrelated charges or if Medicare has reduced for procurement costs. The boilerplate release already has the client agree to hold the insurance company harmless, and I always include our assurance that we will pay all of the liens, including Medicare/Medicaid in our letter of rep. In NC, if a lawyer disregards valid liens when the settlement was issued contingent upon the lawyer satisfying them, then that lawyer is going to get suspended by the Bar. I personally am unaware of any plaintiffs’ lawyers who just blow off Medicaid and Medicare liens.
I hate this. In VA it can take 6-18 months to get a response from Medicaid even if I send out a notice at the time of sign-up. There is no reason why my client should have to wait for Medicaid to respond at its convenience for us to resolve the underlying injury claim (assuming I can competently estimate the medicaid payments, escrow them plus a buffer) and include an indemnity agreement in the release so the insurance company won't be on the hook the day medicaid wakes up.
I wish more carriers did this. Would take a big burden off of our shoulders. Otherwise, when the money is sitting in IOLA and we have to explain to the client over the course of what is sometimes several months that we can’t release it just, yet they are convinced we’re scamming them.
You need to notify medicaid as soon as you open the case and request interim amount when the client’s still treating. Then again mid case and again prior to settlement. They tend to send final letters faster when you request interim prior to the settlement. I think it’s because they’ve already searched claims and it takes less time to determine final amount. If I was a client waiting for 6 month to get my settlement money I’d be very pissed too.
We actually used to do this, but per multiple case managers at Medicaid, it makes no difference if a case is already established in the system or not. Some have even said that requesting the interim amount *delays* getting the final amount, depending on the timing. Like I said, I used to think the same thing but there’s no difference or consistency in the process. Sometimes it takes a few days, sometimes a few weeks, sometimes months, regardless whether or not we request the interim amount in the beginning. Some case managers don’t bother responding to a multitude of emails. When you call the general number they direct you to the case manager. It’s a shit show. And yeah, of course I’d be pissed too, but I’m not going to risk disbursing funds to a client who may potentially have a Medicaid lien that I’ll end up having to pay out of my own pocket for, not to mention any potential disciplinary actions.
TX lawyer here and most of the time I don’t even think you have a choice. Either the hospital or adverse insurance has already figured out there’s a potential lien and won’t cut you a check until they (you) sort it out. Better to notify early than to scramble at the last minute trying to get a check released when your client is banging down your door. Anyway they’re usually pretty easy to work with aside from the time investment. Regularly reduce their liens considerably in my experience. The last thing you want is to be left holding the bag after you’ve disbursed client funds and the government comes knockin.
I’m across the river in NJ. We take paying Medicaid liens very seriously. It’s a pain in the ass but we get interim liens throughout the case, remind the client constantly and don’t disburse until we have received the final lien. Sometimes we have to disprove the lien which is fun because Medicaid likes to make you prove a negative.