Archive for January, 2012

Medicaid Estate Recovery

Posted on: January 30th, 2012 by Lawrence A. Friedman

When a Medicaid recipient passes away, the state can recover Medicaid expenditures from the individual’s probate estate and perhaps from other assets in which the individual once had an interest. As explained in greater detail throughout, individuals may employ various planning techniques to preserve savings and qualify for Medicid to fund long term care. For instance changing a will or title to a home and other assets may shelter assets against Medicaid estate recovery.

An unusual story in the December 26, 2011 Eagle Tribune of North Andover, Massachusettes illustrates how expensive estate recovery can be. Massachusettes courts ruled that close to $200,000 found in a safe on a vacant lot could be taken to repay Medicaid provided to the safe’s former owner. While the state may be more deserving of this money than potential claimants, like the person who dumped the safe in the lot, it seems a shame that the owner’s relatives lost so much money to Medicaid. Perhaps the moral of this story is that consulting an elder law attorney early regarding options to fund long term care may permit families to protect substantial savings and still obtain quality long term care.

Protecting Medicare Eligibility When Settling Personal Injury or Worker Comp Claim

Posted on: January 22nd, 2012 by Lawrence A. Friedman

Will settling your personal injury or worker compensation claim cost you your Medicare? It shouldn’t, but it easily could if you and your personal injury lawyer don’t protect Medicare’s rights.

Generally, Medicare coverage is secondary to others who may have responsibility for your health care costs. Therefore, when settling nearly all personal injury and worker compensation claims, Medicare expects Medicare participants to repay Medicare’s pre-settlement expenditures for accident related care and spend damages that compensate for post-accident care costs incurred after settlement (“Future Medicals) on Future Medicals rather than submit claims for Future Medicals to Medicare. You must protect Medicare’s secondary payer interests if you are on Medicare when your claim settles or reasonably should expect to get Medicare within the 30 months following settlement for reasons such as having reached age 62.5, applied for Social Security Disability benefits (even if denied by an appeal is anticipated), or contracted end stage renal disease

Why should you care? Failing to protect Medicare’s rights can forfeit your own Medicare! What if you need costly surgery due to your accident, Medicare says you must pay for Future Medicals, but you’ve already spent your entire settlement? To make matters worse, Medicare may require you to spend more on Future Medicals going forward than they would if you’d made a good faith effort to protect Medicare’s secondary payer rights when settling your case.

What should you do? Medicare prefers you set aside Future Medicals damages in a Medicare Set-aside Arrangement (“MSA”). An MSA is a share of your damages that is calculated to cover Future Medicals for the rest of your life expectancy and is set aside solely to pay for Future Medicals. The appropriate amount to place in an MSA is based on Medicare guidelines and your post-accident medical records. However, an MSA satisfies your obligations to Medicare only if limited to paying for Future Medicals at rates acceptable to Medicare. Professional administrators can help meet these requirements. If the MSA is funded and administered in accordance with Medicare requirements, Medicare will pay for any Future Medicals that arise after the MSA is exhausted. If your actual Future Medicals turn out to be less than anticipated, the excess can pass to your beneficiaries.

FriedmanLaw can work with you and your personal injury or worker compensation lawyers to design a cost effective MSA that avoids interruption of your Medicare coverage. Contact us today at 908-704-1900.

Further information on this and other subjects is available throughout To subscribe to our frequent blog updates, click on “Subscribe to this Blog” in the Meta box to the left and then click on “subscribe to this feed.”

Occupy Grandma’s? Only 5% of Americans Incur 50% of U.S. Health Care Costs

Posted on: January 17th, 2012 by Lawrence A. Friedman

In recent months, many have protested the gap between the wealthiest one percent of Americans and the rest of us, but what about the health care gap? A new study sponsored by the United States Department of Health and Human Services reports that only one percent of patients account for over twenty percent of health care expenditures and five percent of Americans run up almost half our medical expenses. This top five percent group averages around $36,000 in doctor bills annually compared to an average of only about $230 per year for the bottom half of medical consumers. Study authors Stephen B. Cohen, PhD, and William Yu, said: “In both 2008 and 2009, five percent of the population accounted for nearly 50 percent of healthcare expenditures, with a mean expenditure of nearly $36,000.” This disparity in health care expenditures is thought provoking and may help focus the health care debate in the United States if we can resist the kind of hyperbole and hysteria that accompanied enactment of 2010′s Patient Protection and Affordable Care Act.

Of course, health care usage is heavily skewed by age, and it should surprise no one that older Americans incur far greater health care costs on average than do their children and grandchildren. While young people may prefer not to pay taxes to care for their elders, age warfare is not in anyone’s best interests. Even a newly minted college graduate will turn old someday and may need to access the social safety net of Medicare, Medicaid and other government health care programs.

Cohen, S. and Yu, W. The Concentration and Persistence in the Level of Health Expenditures over Time: Estimates for the U.S. Population, 2008–2009. Statistical Brief #354. January 2012 is available at the website of the Agency for Healthcare Research and Quality, Rockville, MD is available in its entirety at the following URL:

Eighth Circuit Shoots Down Medicaid Appeals To Federal Court

Posted on: January 3rd, 2012 by Lawrence A. Friedman

In our June 21, 2011 entry, we noted that 1971′s, Younger v. Harris, 401 U.S. 37 (1971) United States Supreme Court decision generally requires federal courts to abstain from certain cases that implicate important state concerns, but a case then pending in the United States Court of Appeals for the Eighth Circuit would test whether the Younger doctrine precludes federal courts from considering Medicaid appeals.

Last month, the Eighth Circuit ruled in Hudson v. Campbell (8th Cir., No. 10–3025, Dec. 15, 2011) that United States District Court should not consider a Medicaid applicant’s appeal from Medicaid denial where the applicant goes directly to federal court without going through Medicaid’s fair hearing process. Applying the Younger doctrine, the Eighth Circuit held that abstention is appropriate where the Medicaid applicant hasn’t exhausted her administrative remedies because the state has an important interest in administering Medicaid. The Medicaid applicant’s attorney, Nathan Forck maintains that the Eighth Circuit ruling conflicts with a ruling in a United States Court of Appeals for the Tenth Circuit case involving similar circumstances. Thus, the issue eventually may end up at the Supreme Court. The Medicaid applicant’s initial brief can be accessed at while the applicant’s reply to the Medicaid agency’s brief is available at

Further information on this and other subjects is available throughout To subscribe to our frequent blog updatres, click on “entries RSS” in the Meta box to the left and then click on “subscribe to this feed.”

As this website provides general information and isn’t tailored to your particular situation, it doesn’t constitute legal advice and may not take into account rules and exceptions that affect you. Although updated from time to time, this website may not take account of recent legal developments or differences in laws from state to state. For safety sake, obtain individual legal advice before you act! You assume all risk of acting on information contained in this website. This website doesn’t constitute legal advice, and no attorney-client relationship exists unless FriedmanLaw and you execute a written engagement agreement. Please contact us at 908-704-1900 to discuss engaging FriedmanLaw to help resolve your legal concerns.
Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
Interior photo: Somerset hills pastoral scene by Lawrence Friedman.