Thursday, June 25, 2009

Medicare HMO

Posted by Matt Garretson

I have a client who pays extra for Medicare Part B through AARP (United Health Care). Does the Medicare Part B carrier have a statutory lien or is it just contractual? New York Attorney

He is probably paying for the AARP Medicare Supplement plan or it is a Medicare HMO. In that regard it would likely be a contractual right of recovery. These plans “may” have the same right of recovery of traditional federal Medicare, but they must have the “magic” language in their plan. See Care Choices HMO v. Engstrom 330 F3d 786 (6th 2003) saying these plans can create this reimbursement right if it is in their plan agreement with the Medicare beneficiary. There continues to be a debate as to whether state law applies (b/c these clearly aren’t ERISA plans) – the plan will argue that state law is preempted if they have contractual language since the language gives the plan a reimbursement right arising out of federal law (42 U.S.C. §1395mm(e)(4)).

Hope this helps.

My best,
Matt Garretson