Tuesday, January 4, 2011

New York Collateral Source and Anti-Subrogation Amendment Question

Mr. Russell: I apologize for the question to the extent you have already addressed the issue. Here is my concern: MA Plans step into the shoes of Medicare with a statutory right of reimbursement. There is no real issue on this point. However, when the client chooses to participate in a replacement plan, presumably they do so in return for greater benefits than those provided under traditional Medicare. This leads me to believe that subrogation, in New York, is limited only to those benefits that would have been provided under traditional Medicare and not any of the "extras" which are provided by the private insurer as a result of participation in the replacement plan. Have there been any developments regarding this specific concern? As always, your time and expertise is greatly appreciated.

New York Attorney

Thank you for the question. I think it is a very valid concern and a great point to consider. I wish that I could tell you that there had been some developments regarding this issue. However to my knowledge there have not been any challenges directed at this issue. As you are probably aware there are a number of litigations deciding the issue of the scope of the reimbursement rights but this mainly revolves around whether or not state laws/restrictions can apply and how closely the right mirrors Medicare.

Despite the lack of clarity I would encourage you to focus on these extras. In dealing with such a gray area any leverage can help.

Let me know if you have any questions. Thanks.
Michael Russell, Esq.