Our client is the surviving son of a woman who died in a nursing home after falling several times. We have reached a settlement and the defendant now asserts that Medicare has a lien on the proceeds for all amounts. Medicare might have paid for her stay in the nursing home, as well as for treatment for her repeated falls.
When decedent died, a probate estate was opened, and Medicaid forced the sale of her home to satisfy its interest for payments made. Medicare did not. In Missouri, it is the survivor who makes a claim for the death, and the jury is allowed to consider the loss of consortium, support, care, comfort, etc. The estate of the decedent is NOT the plaintiff, even if a probate estate was opened, as in this case.
Can Medicare now assert a lien against the survivor's interest when they knew or should have known that it had a claim against the estate of the decedent for the care it provided?
Thanks for your assistance!
Yes. Medicare has a priority right to recovery for any injury related claims they may have paid. According to Medicare's policy MSP Manual 188.8.131.52, "a beneficiary’s death does not materially change Medicare’s interest in recovering its payments made on behalf of the beneficiary while alive. Upon death, the estate of the beneficiary comes into existence by operation of law.” An executor or administrator whose sole purpose is to conclude all business and financial matters that still remained at death manages it. Medicare’s interest in the outcome of a third party liability claim is one of these matters. Therefore, Medicare’s claim is properly asserted against the estate.
Having said that, unlike Medicaid, who can recover from the estate for all payments made, injury and non injury related. Medicare's seeks reimbursement only for claims that are from the date of injury thru the date of settlement, and only for the injuries attributed to your claim.