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Medicare Lien Issues for Insurance Defense Counsel

Total Credits
1 - 1.5
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In 2007, the federal government amended the long-ignored Medicare Secondary Payer Statute 42 USC § 1395y(b)(2) (“MSP”) to empower Medicare to recover funds from liability settlements and lawsuits. Regardless of how a settlement agreement characterizes the damages, the amended law allows Medicare to recover directly from the plaintiff’s law firm, the defendant’s insurer or the defendant’s law firm, even if the defendant or the insurer already paid the plaintiff. Additionally, the amendment established a legal obligation on the parties and the insurer to formally determine the Medicare lien, ensure that the lien is paid, and protect the future interests of Medicare. The law, however, clashes with several state laws requiring prompt payment of a settlement as well as long established local practices and case law regarding the mechanics of settlement. The amendment therefore raises a host of issues for the local courts who must balance the interests of encouraging settlements with the interests of Medicare and the defendant’s desire to “buy their peace”.

This CLE program discusses the amended law, the decisions from state and federal courts around the country addressing the competing interests and proposes a mechanism that protects the insurer and both counsels without discouraging settlement.

Lecturer Bio

Richard A. Fogel, Esq.

Attorney Richard A. Fogel received his Masters of Science Degree in marine environmental sciences from the State University of New York at Stony Brook in 1982; Bachelor of Science in Marine Sciences from Southanpton College (LIU) in 1980; and his Juris Doctorate from Fordham University School of Law, in 1987. He is licensed to practice law in New York and New Jersey, and admitted to practice before the United States Supreme Court.

Mr. Fogel has written and published many articles in law journals and magazines on topics such as risk management, environmental claims (as they relate to insurance coverage), lead paint, and case settlement and negotiation strategies. In addition, he has lectured extensively on insurance coverage issues, toxic torts, and risk management issues.

Mr. Fogel is a adjunct professor at Nassau Community College teaching Business Law and Litigation. He is a nominated member and instructor for the Claims & Litigation Management Alliance teaching various state approved Continuing Education courses on legal topics to licensed insurance professionals. He is also a "Bests Recommended Insurance Counsel" and rated "AV" for ethical standards and legal ability by LexisNexis/Martindale Hubbell.

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