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RESOLVING MEDICARE ADVANTAGE, PRESCRIPTION DRUG PLAN, VETERANS ADMINISTRATION, TRICARE AND WELFARE LIENS IN PERSONAL INJURY CASES

by Thomas D. Begley, Jr., CELA

Medicare Advantage and Prescription Drug Plans

Medicare Part C, commonly known as Medicare Advantage, is a Medicare substitute program operated by private health insurance companies as a managed care plan. Medicare Part D similarly provides prescription coverage to eligible beneficiaries through private insurance plans. To the extent a reimbursement right may be created under a specific MAO plan, the Part C statute itself limits any recovery from a beneficiary to the amount actually received from a third party as payment for plan-covered expenses.[1]

Veterans Administration and TRICARE Claims

The Veterans’ Benefits Act[2] and the Armed Forces Act[3] establish the Veterans Administration and TRICARE/CHAMPUS healthcare programs, respectively. Neither the VA nor TRICARE/CHAMPUS statutes allow for a lien or reimbursement claim against a beneficiary’s personal injury recovery. The government does have a subrogation right if it chooses to pursue its own claim against a third party; however, the statutes specifically governing the programs have a very narrow definition of “third party” that does not include a tortfeasor, but is specifically limited to public and private healthcare payors.[4] Moreover, applicable regulations spell out that a beneficiary only has a duty to cooperate with the government’s third-party claim, and the extent of that cooperation itself is rather limited, merely obliging a beneficiary to provide necessary information for the government’s third-party claim.[5] Moreover, the government’s claim is expressly limited by both statute and regulation to the extent of liability under state tort law, so federal preemption of state liability rules does not apply.

Welfare Liens

In New Jersey, there is a lien against real and personal property of a person who has been assisted by or received support from any municipality or county. This is true whether a person has been in a county facility or at home.[6]

 

[1] 42 U.S.C. § 1395w-22(a).

[2] 38 U.S.C. § 1729.

[3] 10 U.S.C. § 1095.

[4] 38 U.S.C. § 1729(i)(3) and 10 U.S.C. § 1095(h)(1).

[5] 32 CFR §§ 199.12 and 220.9.

[6] N.J.S.A. 4:4-91.

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