Archive for November, 2019

Medicare and Medicaid to Fund Nursing Home Rehabilitation and Long Term Care

Posted on: November 15th, 2019 by Lawrence A. Friedman

Medicare is a federal government program to provide health care for most people who are age 65 or older, totally and permanently disabled so that they can’t work, or have ALS (Lou Gehrig’s Disease) or end stage renal failure.  While Medicare can provide broad coverage for doctor and other health professional fees, surgeries, medicines, therapies, and hospitalization, Medicare is less helpful when it comes to nursing home charges.

Medicare does cover the full cost of rehabilitation in a nursing home after 3 days of hospital admission for up to 20 days.  Medicare also can cover part of the cost of rehabilitation in a nursing home for up to another 80 days, but patient co-payments can be required as well.  Note that while Medicare can pay toward up to 100 days of a particular rehabilitation, 100 days is a maximum/ not guarantied coverage period.  Medicare rehabilitation coverage can end well short of 100 days (and even after less than 20 days) where rehabilitation is not medically necessary to achieve further recovery or avoid decline or where the patient refuses to participate in rehabilitation.

Medicare does not cover any of the cost of long term care other than limited therapies.  Therefore, long term care residents of nursing homes and assisted living facilities must fund care privately or turn to Medicaid.

To qualify for Medicaid, both assets and income must be within Medicaid caps, and usually both spouses’ finances come into play.  Because Medicaid financial caps are quite low, families often exhaust savings on care costs unless they protect assets through long term care Medicaid planning.

Families have no obligation to work with a lawyer, but because qualification rules are complex and often counter intuitive, do it yourself Medicaid planning never is a good idea.  Poor planning can be ineffective or, worse, result in Medicaid penalties and ineligibility.  Consequently, we almost always find that retaining FriedmanLaw for Medicaid planning and Medicaid applications normally saves far more than our (not insubstantial) fees.

Further information on Medicare, Medicaid, and long term care is available throughout this website

Draconian Penalties When Settling Personal Injury and Worker Compensation Claims Without Repaying Medicare Conditional Payments

Posted on: November 8th, 2019 by Lawrence A. Friedman

Medicare secondary payer law (42 U.S.C. §1395y(b) et seq,) provides that Medicare shall not fund care for which another entity or person is liable such as injuries due to auto accident, negligence, or work place mishap.  Where a potentially responsible party (PRP) denies liability, Medicare may make conditional payments for medical care.  However, Medicare secondary payer law requires personal injury lawyers to apply settlements and other recoveries to repay Medicare conditional payments before paying plaintiffs.


Where Medicare conditional payments are not timely repaid as required by Medicare secondary payer law, Medicare can charge interest at high interest rates, obtain double damages, and even seek criminal penalties.  Nevertheless, some personal injury and worker compensation lawyers have given their injured plaintiff clients (rather than Medicare) PRP settlement payments that should have repaid Medicare conditional payments in accordance with Medicare secondary payer law.


The failure of some lawyers to satisfy Medicare secondary payer law obligations has led Medicare to sue to recover Medicare conditional payments.  While Medicare may limit claims to Medicare conditional payments in some cases. Medicare has aggressively pursued claims against attorneys who may be flouting Medicare secondary payer law.


Incidentally, Medicare secondary payer law requires plaintiffs to apply at least part of a personal injury or worker compensation recovery to fund accident related care before asking Medicare to cover such costs.  It also is important to keep in mind that Medicaid also may be entitled to repayment on settling a personal injury or worker compensation claim.


In the last few years, Medicare has collected substantial amounts from lawyers and their clients where Medicare conditional payments were not timely repaid as required by Medicare secondary payer law.  Last March a Baltimore personal injury firm agreed to pay Medicare $250,000 for ignoring its Medicare secondary payer law obligations to repay Medicare conditional payments from personal injury settlements.  Just a few days ago, another law firm agreed to pay Medicare over $90,000 for failing to repay Medicare conditional payments when personal injury claims settled.


What is the take away?

As a lawyer,  you can face substantial penalties if you don’t honor your Medicare secondary payer law obligations to repay Medicare conditional payments and Medicaid claims when settling personal injury or worker compensation claims.

As a plaintiff you too can face claims by Medicare and Medicaid if you don’t make sure your lawyer repays Medicaid and Medicare conditional payments when disbursing your settlement.


For many years, FriedmanLaw has worked with law firms and individuals to ascertain and resolve Medicare and Medicaid repayment claims.  We hope to add you to our roster of satisfied clients!  Additional information appears in our May 19, 2016 blog post Medicare Claims and our July 6, 2015 post Medicare Set Aside Trusts.


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.